The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
This morning as I was driving to work, I heard Mr Luwellyn Landers, a member of the ad hoc Parliamentary Committee tasked with debating and rewriting the Secrecy Bill, talk about the impossibility of including a public interest defence in the Secrecy Bill. A public interest defence would protect whistle-blowers and journalists from wrongful prosecution for exposing corruption and maladministration in the public interest — even when they leak or publish the content of classified documents and even if these documents were classified top secret to protect national security.
Mr Landers claimed that it had been impossible for the Committee to include a public interest defence in the Secrecy Bill as this would turn the Bill into a useless document that would lose all effectiveness. Such a move would also go against “international practice”, he claimed.
Because I was listening to the radio, I could not see whether Mr Landers’ nose was growing longer as he spoke.
Mr Landers must be unaware of (or must deliberately be misleading the public about) the fact that the Council of Europe Convention on Access to Official Documents contains a public interest override. Article 3 of that treaty allows member states to deny citizens access to documents where this is “necessary in a democratic society” and where it is “proportionate to the aim of protecting”, inter alia, national security, defence and international relations; public safety; the prevention, investigation and prosecution of criminal activities; privacy and other legitimate private interests; and the economic, monetary and exchange rate policies of the State.
However article 3(3) of this treaty states that:
Access to a document may be refused if the disclosure of the information contained in the official document would or would be likely to harm any of the interests mentioned [above], unless there is an overriding public interest in disclosure.
Moreover freedom of information organisations such as article 19 hold that a public interest override is “crucial to the effective functioning of a freedom of information regime. It is simply not possible to envisage in advance all of the circumstances in which information should still be disclosed, even if this might harm a legitimate interest, and to address these through narrowly drafted exceptions or exceptions to exceptions.”
Thus that organisation has published the Principles on Freedom of Information Legislation which makes it clear that a public interest defence is pivotal for any legal regime dealing with the classification of information, stating that:
Even if it can be shown that disclosure of the information would cause substantial harm to a legitimate aim, the information should still be disclosed if the benefits of disclosure outweigh the harm. For example, certain information may be private in nature but at the same time expose high-level corruption within government. The harm to the legitimate aim must be weighed against the public interest in having the information made public. Where the latter is greater, the law should provide for disclosure of the information.
These Principles were endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression, in his report to the 2000 session of the United Nations Commission on Human Rights as well as the Organisation of American States (OAS) Special Rapporteur on Freedom of Expression in his 1999 Report to the Inter-American Commission on Human Rights. A claim that “international practice” holds otherwise can therefore at best be said to be factually incorrect.
Mr Landers must also be unaware of (or must deliberately be misleading the public about) the fact that the Canadian law dealing with state secrecy includes just such a public interest defence. The Security of Information Act of 1985, which regulates the classification of state secrets in Canada and also criminalises the leaking of documents and possession of documents classified as secret, contains a specific public interest defence in section 15 of that Act.
I thought it might be helpful to discuss this section of the Canadian Act to assist the ad hoc committee in its possible future deliberations on the Bill. Section 15(1) of the Canadian Act states that no person is guilty of an offence even where that person reveals “special operational information” if the person establishes that he or she acted in the public interest. “Special operational information” includes classified information about such serious state security issues as the identity of spies, plans of military operations, and information about the operation of intelligence services.
Section 15(2) states that a person acts in the public interest if
(a) the person acts for the purpose of disclosing an offence under an Act of Parliament that he or she reasonably believes has been, is being or is about to be committed by another person in the purported performance of that person’s duties and functions for, or on behalf of, the Government of Canada; and (b) the public interest in the disclosure outweighs the public interest in non-disclosure.
Subsection 15(4) of the Canadian Act contains a set of factors that a court must weigh up when deciding whether the public interest in the disclosure outweighs the public interest in non-disclosure. These factors include:
(a) whether the extent of the disclosure is no more than is reasonably necessary to disclose the alleged offence or prevent the commission or continuation of the alleged offence, as the case may be;
(b) the seriousness of the alleged offence;
(c) whether the person resorted to other reasonably accessible alternatives before making the disclosure and, in doing so, whether the person complied with any relevant guidelines, policies or laws that applied to the person;
(d) whether the person had reasonable grounds to believe that the disclosure would be in the public interest;
(e) the public interest intended to be served by the disclosure;
(f) the extent of the harm or risk of harm created by the disclosure; and
(g) the existence of exigent circumstances justifying the disclosure.
The section also provides for other safeguards that would prevent the disclosure of information that would harm the security of the state without having satisfied the public interest criteria. However, even then these safeguards do not apply if the communication or confirmation of the information was necessary to avoid grievous bodily harm or death.
Were the South African Constitutional Court to be asked to consider whether the drastic infringement on the right to freedom of expression and the right of access to information currently contained in the Secrecy Bill were justified in terms of the limitation clause of our Constitution, it would ask what was “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. It would then have to consider whether the absence of a public interest override defence is usually included in legislation of democratic countries. The Court will probably find that it is usually included, given the fact that the inclusion of such a defence is required for all countries in Europe, endorsed by officials of the United Nations and included in Canadian legislation.
Mr Landers may of course argue that South Africa is a special kind of democracy and that our government requires more stringent secrecy laws to protect it from exposure … I mean the disclosure of sensitive information — even if it is in the public interest to do so. He may argue that we should not be measured against other democracies but rather against only partly democratic or authoritarian countries where secrecy is the norm instead of the exception. But I suspect that such an argument would not be politically palatable. No wonder he is wrongly claiming that including a public interest defence in our Secrecy Bill would be impractical and would not be required by “international practice”.BACK TO TOP