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The Global Principles on National Security and the Right to Information (Tshwane Principles) These Global Principles on National Security and the Right to Information, launched on June 12, 2013, were drafted by 22 groups over a two year period, in a process that involved consulting more than 500 experts from over 70 countries around the world. The drafting process culminated at a meeting in Tshwane, South Africa, which gave them their name. 12 June 2013

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This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivs 3.0 Unported License ISBN: 978-1-936133-98-7Published by Open Society Foundations Open Society Justice Initiative 224 West 57th Street New York, NY 10019 USA www.opensocietyfoundations.org Designed by Judit Kovács l Createch Ltd. Printed by Createch Ltd. l Hungary

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THE GLOBAL PRINCIPLES ON NATIONAL SECURITY AND THE RIGHT TO INFORMATION 3 Table of Contents Introduction 5 Preamble 7 Definitions 11 Part I: General Principles 13 Part II: Information that May Be Withheld on National Security Grounds, and Information that Should Be Disclosed 19 Part III.A: Rules Regarding Classification and Declassification of Information 29 Part III.B: Rules Regarding Handling of Requests for Information 35 Part IV: Judicial Aspects of National Security and Right to Information 39 Part V: Bodies that Oversee the Security Sector 43 Part VI: Public Interest Disclosures by Public Personnel 49 Part VII: Limits on Measures to Sanction or Restrain the Disclosure of Information to the Public 57 Part VIII: Concluding Principle 61 Annex A: Partner Organizations 63

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6 TSHWANE PRINCIPLES Background and RationaleNational security and the public’s right to know are often viewed as pulling in opposite directions. While there is at times a tension between a government’s desire to keep infor- mation secret on national security grounds and the public’s right to information held by public authorities, a clear-eyed review of recent history suggests that legitimate national security interests are, in practice, best protected when the public is well informed about the state’s activities, including those undertaken to protect national security. Access to information, by enabling public scrutiny of state action, not only safeguards against abuse by public officials but also permits the public to play a role in determin- ing the policies of the state and thereby forms a crucial component of genuine national security, democratic participation, and sound policy formulation. In order to protect the full exercise of human rights, in certain circumstances it may be necessary to keep infor- mation secret to protect legitimate national security interests.Striking the right balance is made all the more challenging by the fact that courts in many countries demonstrate the least independence and greatest deference to the claims of government when national security is invoked. This deference is reinforced by provisions in the security laws of many countries that trigger exceptions to the right to information as well as to ordinary rules of evidence and rights of the accused upon a minimal show- ing, or even the mere assertion by the government, of a national security risk. A govern- ment’s over-invocation of national security concerns can seriously undermine the main institutional safeguards against government abuse: independence of the courts, the rule of law, legislative oversight, media freedom, and open government. These Principles respond to the above-described longstanding challenges as well as to the fact that, in recent years, a significant number of states around the world have embarked on adopting or revising classification regimes and related laws. This trend in turn has been sparked by several developments. Perhaps most significant has been the rapid adoption of access to information laws since the fall of the Berlin Wall, with the result that, as of the date that these Principles were issued, more than 5.2 billion people in 95 countries around the world enjoy the right of access to information—at least in law, if not in practice. People in these countries are—often for the first time—grappling with the question of whether and under what circumstances information may be kept secret. Other developments contributing to an increase in proposed secrecy legislation have been government responses to terrorism or the threat of terrorism, and an interest in having secrecy regulated by law in the context of democratic transitions.

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THE GLOBAL PRINCIPLES ON NATIONAL SECURITY AND THE RIGHT TO INFORMATION 7 PreambleThe organizations and individuals involved in drafting the present Principles: Recalling that access to information held by the state is a right of every person, and there-fore that this right should be protected by laws drafted with precision, and with narrowly drawn exceptions, and for oversight of the right by independent courts, parliamentary oversight bodies, and other independent institutions;Recognizing that states can have a legitimate interest in withholding certain information, including on grounds of national security, and emphasizing that striking the appropriate balance between the disclosure and withholding of information is vital to a democratic society and essential for its security, progress, development, and welfare, and the full enjoyment of human rights and fundamental freedoms;Affirming that it is imperative, if people are to be able to monitor the conduct of their government and to participate fully in a democratic society, that they have access to infor- mation held by public authorities, including information that relates to national security; Noting that these Principles are based on international law and standards relating to the public’s right of access to information held by public authorities and other human rights, evolving state practice (as reflected, inter alia, in judgments of international and national courts and tribunals), the general principles of law recognized by the community of nations, and the writings of experts;Bearing in mind relevant provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights, the European Convention on Human Rights, and the Council of Europe Convention on Access to Official Documents;

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8 TSHWANE PRINCIPLES Further bearing in mind the Declaration of Principles on Freedom of Expression of the Inter- American Commission of Human Rights; the Model Inter-American Law on Access to Information, the Declaration of Principles on Freedom of Expression in Africa, and the Model Law on Access to Information for Africa; Recalling the 2004 Joint Declaration of the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the Inter-American Commission on Human Rights Special Rapporteur on Freedom of Expression; the 2006, 2008, 2009 and 2010 Joint Declarations of those three experts plus the African Commis- sion on Human and Peoples’ Rights Special Rapporteur on Freedom of Expression and Access to Information; the December 2010 Joint Statement on WikiLeaks of the UN and Inter-American Special Rapporteurs; and the Report on Counter-Terrorism Measures and Human Rights, adopted by the Venice Commission in 2010; Further recalling the Johannesburg Principles on National Security, Freedom of Expression and Access to Information adopted by a group of experts convened by Article 19 in 1995, and the Principles of Oversight and Accountability for Security Services in a Constitutional Democracy elaborated in 1997 by the Centre for National Security Studies (CNSS) and the Polish Helsinki Foundation for Human Rights; Noting that there are international principles—such as those included in the Model Law on Access to Information in Africa, the UN G uiding Principles on Business and Human Rights (“Ruggie Principles”), the Arms Trade Treaty, the OECD Guidelines for Multina- tional Enterprises, and the Montreux Document on pertinent international legal obliga- tions and good practices for states related to operations of private military and security companies during armed conflict—that recognize the critical importance of access to information from, or in relation to, business enterprises in certain circumstances; and that some expressly address the need for private military and security companies operat- ing within the national security sector to make certain information public;Noting that these Principles do not address substantive standards for intelligence collection, management of personal data, or intelligence sharing, which are addressed by the “good practices on legal and institutional frameworks for intelligence services and their oversight” issued in 2010 by Martin Scheinin, then the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, at the request of the UN Human Rights Council; Recognizing the importance of effective intelligence sharing among states, as called for by UN Security Council Resolution 1373;

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THE GLOBAL PRINCIPLES ON NATIONAL SECURITY AND THE RIGHT TO INFORMATION 9 Further recognizing that barriers to public and independent oversight created in the name of national security increase the risk that illegal, corrupt, and fraudulent conduct may occur and may not be uncovered; and that violations of privacy and other individual rights often occur under the cloak of national security secrecy; Concerned by the costs to national security of over-classification, including the hindering of information-sharing among government agencies and allies, the inability to protect legiti- mate secrets, the inability to find important information amidst the clutter, repetitive col- lection of information by multiple agencies, and the overburdening of security managers;Emphasizing that the Principles focus on the public’s right to information, and that they address the rights to information of detainees, victims of human rights violations, and others with heightened claims to information only to the extent that those rights are closely linked with the public’s right to information; Acknowledging that certain information that should not be withheld on national security grounds may potentially nonetheless be withheld on various other grounds recognized in international law—including, e.g., international relations, fairness of judicial proceedings, rights of litigants, and personal privacy—subject always to the principle that information may only be withheld where the public interest in maintaining the information’s secrecy clearly outweighs the public interest in access to information; Desiring to provide practical guidance to governments, legislative and regulatory bodies, public authorities, drafters of legislation, the courts, other oversight bodies, and civil society concerning some of the most challenging issues at the intersection of national security and the right to information, especially those that involve respect for human rights and democratic accountability; Endeavouring to elaborate Principles that are of universal value and applicability; Recognizing that states face widely varying challenges in balancing public interests in disclosure and the need for secrecy to protect legitimate national security interests, and that, while the Principles are universal, their application in practice may respond to local realities, including diverse legal systems;Recommend that appropriate bodies at the national, regional, and international levels under- take steps to disseminate and discuss these Principles, and endorse, adopt, and/or imple- ment them to the extent possible, with a view to achieving progressively the full realization of the right to information as set forth in Principle 1.

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