JURIST Guest Columnist Ashley Savage of Northumbria Law School (UK) says that taking action to prevent unauthorized disclosures is justified, but legislation seeking to deter leaks should differentiate between types of leaks so as not to silence potential whistleblowers…

The US Senate Select Committee on Intelligence’s Intelligence Authorization Act for Fiscal Year 2013 contains a number of measures aimed at preventing unauthorized disclosures of classified documents by intelligence officials. The aim is to punish agency employees who leak information to the media. Employees who choose to leak would risk their pension rights and could face prosecution. As I have written previously, the punishment of unauthorized disclosures is only one part of the story.

The current proposals neglect to distinguish between routine leaks and whistleblowing disclosures, placing emphasis on leaks to the media without seeking to address the role of the Internet. The bill has already received criticism from a number of campaign groups suggesting that, if passed, the legislation will be harmful to free speech and may prevent whistleblowing disclosures of genuine wrongdoing from reaching the public domain. Routine leaking of information can be detrimental to the levels of trust needed in an organization and detrimental to national security. It is clear, therefore, that action taken to prevent unauthorized disclosures is justified. However, the main problem with the bill is that it focuses on punishing any disclosures related to “classified information.” The bill fails to allow for any determination or defense that the information disclosed may have been wrongly classified or may be of such a high value to the public interest that it outweighs the justification to keep the information secret.

Drafting a law to prevent leaks of national security information is no easy task — the struggles of the UK Parliament provide an excellent example. The UK Parliament originally passed Section 2 of the Official Secrets Act 1911 which prevented the disclosure of any official information without lawful authority. This meant that employees could (at least in theory) be prosecuted for disclosing the content of the menu in the staff cafeteria or the carpets in their office hallway. By the late 1980s it had become clear that the section was no longer working and it was replaced by the Official Secrets Act 1989. The Act sought to limit the types of information covered into six categories: (1) security and intelligence, (2) defense, (3) international relations, (4) crime and special investigations, (5) information resulting from unauthorized disclosures or entrusted in confidence and (6) information entrusted in confidence to other states or international organizations.

The first category relating to security and intelligence information places employees working in the intelligence agencies under a life-long duty of non-disclosure. The other categories provide harm tests, effectively requiring the prosecuting authorities to prove that any prosecuted disclosure was damaging in some way. In the UK, security classifications of documents are not of evidentiary relevance to the jury in criminal trials.

The approach of the UK legislature can be seen as preferable to the proposed Senate bill which does not allow for any consideration of the harm caused by the unauthorized disclosure. However, it is not the disclosure of classified documents that cause harm to national security (aside from the impact on workplace discipline), but, rather, the contents of those documents and what the recipients could do with the information contained therein. Emphasis should therefore be placed on whether any alleged disclosure is in fact harmful. However, where the UK approach fails is that the included harm tests are very easily satisfied. Any disclosures of information falling within the categories outlined above are by their very nature harmful. These broad definitions of harm, which do not allow a converse determination of the benefits of disclosure, makes it difficult to prove otherwise. While the UK example provides some scope for improvement of the Senate bill, it does not provide the solution.

Harm can only be realistically determined on a case-by-case basis. While the Senate bill aims to deal with unauthorized disclosures, it also provides an opportunity to re-examine the classification process as a whole. The classification process should be of evidentiary relevance in any subsequent action taken against accused “leakers.” When a document disclosed is classified at the highest possible level (“top secret”) the information should be considered to be the most harmful to national security. Conversely, if a document has been classified at the lowest level (“restricted”) it should be considered to be the least harmful to national security. However, this evidentiary standard should be considered within a larger legal framework designed to test whether the unauthorized disclosure of information could actually be considered to be in the public interest. Such framework is vital to ensuring that individuals are not punished for disclosing documents which are wrongly classified. Punishing employees for the disclosure of classified documents without considering whether the disclosure was harmful to national security or the circumstances in which the disclosure was made is detrimental to freedom of speech. Providing a link between the harm tests contained in the law and the classification of documents was a recommendation made by the Franks Committee in 1972 when it considered reform of the Official Secrets Act 1911.

Another problem concerns proposed administrative actions in response to unauthorized disclosures. The Senate bill allows the heads of US intelligence agencies to determine whether or not their employees should lose their pension rights as a result of making unauthorized disclosures. One must question whether it would have been more appropriate to appoint a person independent of the agency structure for this task. Because the bill also aims to restrict communication with the media to the heads of the US intelligence agencies, this creates a situation whereby subordinate employees will feel suppressed from revealing information regarding wrongdoing. While these measures may have a positive effect on deterring routine leaking of information to the press, they are also likely to have a detrimental effect on legitimate whistleblowers. There will be no incentive for employees to go “on the record” with a media outlet for risk of losing their pension rights. It is therefore inevitable that anonymous disclosures will increase. Furthermore, the bill makes no attempt to expressly deal with disclosures over the Internet which will become an increasingly attractive proposition to employees if the bill is passed.

Ashley Savage is a Lecturer at Northumbria Law School in Newcastle, UK, where his research includes unauthorized disclosures. Previously, he worked for Public Concern at Work, an independent authority on whistleblowing.

Suggested citation: Ashley Savage, Unauthorized Disclosure and the Public Interest, JURIST – Forum, Aug. 17, 2012, http://jurist.org/forum/2012/08/ashley-savage-unauthorized-disclosure.php.