National Security and the Right to Information in Europe
Amanda L. Jacobsen April 2013
University of Copenhagen, Department of Political Science, Centre for Advanced Security Theory
Table of Contents
Introduction Sources of Information I.
National Security Exceptions to the Right to Information a. The Definition of “National Security” b. A Presumption in Favor of Secrecy c. Exemption of Certain Information, Offices or Officials
Disclosure Obligations a. The Right to Information b. Affirmative Disclosure Obligations c. Time Limits for Responding to Requests for Information d. Requests for Classified Information e. Segregation of Non-exempt Information f. Confirming or Denying the Existence of Requested Information g. Written and Substantiated Explanations for Denied Requests for Information h. Review of Denied Requests for Information
Classification Procedures a. Classification Rules b. Classification Levels and Markings c. Classification Authority d. Classification Duties
Declassification Procedures a. Time Limits on the Duration of Classification b. Periodic Classification Reviews c. Automatic Declassification d. Requests for Declassification by the Public
Classifiable Information a. Consideration of the Public Interest in Disclosure during Classification b. Classification of Information in the Public Domain c. Categories of Classifiable Information
Judicial Review a. Authority of the Court to Review and Order the Release of Classified Information b. Public Access to Court Decisions c. Public and Defendant Access to Evidence in Criminal Cases d. Access to Information in Other Proceedings
e. Dismissal on the Basis of the State Secrets Privilege VII.
Autonomous Oversight Bodies
VIII. Criminal Prosecutions of Public Personnel a. Criminal Penalties for Unauthorized Disclosure b. Disclosures Made Internally or to an Independent Oversight Body c. Information in the Public Domain d. Defenses against Criminal Penalties e. Criminal Penalties for Disclosure by Persons without Authorized Access f. Criminal Penalties for Unauthorized Possession IX.
Media Protections a. Prior Restraints on Publication b. Media Privileges c. Prosecution of the Media
Record Maintenance a. The Duty to Archive and the Duty to Destroy b. Oversight of Document Destruction c. Maintenance of Classified Document Lists
Annex A: National Questionnaire from the European Consultation on National Security and the Right to Information Annex B: February 2012 Draft of the Principles on National Security and the Right to Information (which accompanied the National Questionnaire)
Introduction This report was commissioned by the Centre for Advanced Security Theory (CAST) at the University of Copenhagen’s Department of Political Science. The objective of the report is to identify trends within Europe related to national security and the right to information by surveying national laws and practices within the region. This report was undertaken in connection with the Open Society Justice Initiative and seeks to inform its ongoing efforts, together with 15 other organizations and academic centres and in consultation with leading UN and regional experts, to develop a set of Global Principles on National Security and the Right to Information. More information about that project may be found at the Justice Initiative’s website: http://www.right2info.org/exceptions-to-access/national-security. This report is based upon information collected from national security and transparency experts from twenty European countries who completed an extensive questionnaire (attached at Annex A). The questionnaires for each of the twenty countries, although not attached to this