John Szemerey reports from Brussels on the recent OSCE survey on freedom of information
Governments should give journalists a legal shield against over-enthusiastic prosecutors and judges who want to force them to reveal their sources. They should also ensure that free access to information was a reality and that the classification ‘secret’ was only used for a limited period and for real secrets whose unauthorized release would have serious consequences. These are the principle recommendations of the unprecedented survey, the first in the world, on access to information by the media. This survey is of the 56 countries of the Organization for Security and Co-operation in Europe (OSCE).
The 450-page survey report was launched on May 2, the eve of World Press Freedom Day, at a press conference in Brussels, by Miklos Haraszti, OSCE’s Representative on Freedom of the Media. He was supported by Belgium’s ambassador to the OSCE, Bernard de Crombrugghe, and David Banisar of Privacy International who analysed the replies to the survey.
Societies have more access to information than ever before, said Haraszti in presenting the results of the survey. “But weak laws and prosecution against the media diminish journalists’ investigative abilities. In the past 10 years, most OSCE nations have passed good basic laws to balance the rights of the public to know with governments’ classification needs. However, in most countries this balance is upset when it comes to journalists’ daily struggle with secrecy.”
The survey covers four basic issues relating to journalists’ access to government data. These are: freedom of information laws, classification rules (what is a secret?), punitive laws and practices in case of breach of secrecy, and protection of journalists’ confidential sources.
On freedom of information (FOI), Haraszti said that FOI laws are in vigour in 80 per cent of the 56 OSCE states, including established democracies like the UK, Switzerland and Germany, and new democracies like Armenia, Kyrgyzstan and Azerbaijan.
The report recommends that:
“All participating states should adopt freedom of information legislation that gives a legal right to all persons and organizations to demand and obtain information from public bodies and from those who are performing public functions. Individuals should also have a right to access and correct all personal information held about themselves.
“Public bodies should be required in law to respond promptly to all requests for information. Requests for information that are time-sensitive or relate to an imminent threat to health or safety should be responded to immediately. The process for requesting information should be simple and free or low-cost.”
Classification rules should be thoroughly revised so state secrets are defined as narrowly as possible, and the definition “secret” should be limited only to data that directly relates to the “security of the state and where unauthorized release would have identifiable and serious consequences.”
If secrets are too broadly defined, Haraszti added, “then you have a problem.”
Too many states do not differentiate between officials and others in “breach of secrecy” cases. In the view of the report’s authors, “criminal and civil code prohibitions should only apply to officials and others who have a specific legal duty to maintain confidentiality. The media and ‘whistleblowers’ who disclose secret information of public interest to the media should not be subject to legal and other sanctions. The test of public interest in publication should become an integral part of jurisprudence on disclosure of information.”
The irony about the principle of protection of journalists’ sources is that most nations recognize its importance and mention it somewhere in their legislation. “But this is mostly lip service”, said Haraszti, and in practice only some 20 countries have an effective shield to protect journalists from being forced to reveal their sources.
However, the survey discloses, it is in these 20 countries that prosecutors are most active against journalists.
The report’s position was clear: “Each participating state should adopt an explicit law on protection of sources to ensure these rights are recognized and protected.”
While societies have more access to information than ever before, four OSCE countries were moving in the opposite direction, withdrawing openness. They are the USA, Ireland, the United Kingdom and Bulgaria. The UK government is among the worst offenders, in trying to reduce the media’s and the public’s access to information. (See the article in the March 2007 issue of The Journal.) Indeed, Lord Falconer, the Lord Chancellor, has been quoted as saying that “Freedom of information was never considered to be, and for our part will never be considered to be, a research arm for the media.”
The US is criticised by the report for its use of ‘Executive Privilege’ to reduce access to data on internal decision-making. It is also criticised for its failure to have a federal law that protects journalists from being forced to reveal their sources. In contrast, 49 US states have a law giving good protection to journalists. Congress is trying to resolve both these problems. An Open Government Bill is on its way through Congress to deal with the access to information issue. However, legislation to enact in law journalists’ protection of sources has for some time been blocked in the legislature.
The survey in full, including the overall results, and the results country by country, can be seen on the OSCE’s website at:
http://www.privacyinternational.org/foi/OSCE-access-analysis .pdf . A summary of preliminary results of the survey can be found at: http://www.osce.org/documents/rfm/2007/05/24250_en.pdf