Whistleblowers and Secrets: Twelve Principles

A new set of global principles addresses the question of how to ensure public access to government information without jeopardizing legitimate efforts to protect people from national security threats.

Based on more than two years of consultation around the world, the Tshwane Principles on National Security and the Right to Information set out in unprecedented detail guidelines on the appropriate limits of secrecy, the role of whistleblowers, and other issues. Here are 12 things they say:

1. Governments may legitimately withhold information in narrowly defined areas, such as defense plans, weapons development, and the operations and sources used by intelligence services. Also, they may withhold confidential information supplied by foreign governments that is linked to national security matters (Principle 9).

2. But governments should never withhold information on violations of international human rights and humanitarian law, including information about the circumstances and perpetrators of torture and crimes against humanity, or the location of secret prisons. (Principle 10A).

3. The public has a right to know about systems of surveillance, and the procedures for authorizing them (Principle 10E).

4. Whistleblowers in the public sector should not face retaliation if the public interest in the information disclosed outweighs the public interest in secrecy (Principles 40 and 43).

5. But they should have first made a reasonable effort to address the issue through official complaint mechanisms, provided that an effective mechanism exists. (Principle 40).

6. Criminal action against those who leak information should be considered only if the information poses a “real and identifiable risk of causing significant harm” that overrides the public interest in disclosure (Principles 43 and 46).

7. Journalists and others who do not work for the government should not be prosecuted for receiving, possessing or disclosing classified information to the public, or for conspiracy or other crimes based on their seeking or accessing classified information (Principle 47).

8. Journalists and others who do not work for the government should not be forced to reveal a confidential source or other unpublished information in a leak investigation. (Principle 48).

9. Public access to trial procedures is essential: “Invocation of national security may not be relied upon to undermine the fundamental right of the public to access judicial processes” (Principle 28).

10. Governments must not withhold information about past abuses of international human rights or humanitarian law under previous regimes (Principle 10).

11. It is up to the government to prove the necessity of restrictions on the right to information (Principle 4).

12. The public has a right of access to government information, including information from private entities that perform public functions or receive public funds (Principle 1).