ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION Many of the categories contained in Articles 3, 6 and 8 impose a blanket exemption for information related to national security. This is fundamentally inconsistent with the requirements under international law for access to information. The liberal use of the term “any information” fails to meet the requirements of drawing the restriction as narrowly as possible and building in a ‘risk of substantial harm test’. Stringent harm tests are necessary in order to prevent abuse in a state secrets regime. In relation to Articles 3, 6 and 8, there is no provision made for the assessment of the timesensitivity of the information for the protection of national security. Quite often, information which might be properly considered sensitive to national security will no longer be so in two years time. This is one reason why there must always be a separate consideration of whether disclosure would pose a substantial risk to the protected interest, rather than just a blanket exemption for categories of information. Article 8 is particularly concerning because it provides the broadest restrictions on access to information and also seeks to exclude information on the basis of interests ancillary to national security. While national security is a legitimate protected interest, protecting a State from “embarrassment”, causing “administrative or economic difficulties”, “documents relating to administrative or criminal investigation, trials, tenders or general financial or economic affairs”, reports which “may demoralize the citizens” or “information…that harms the reputation of any official or impairs the standing of the State” are not necessarily so. It is fundamental to open government that they, and their officials, are subject to comment and criticism and that the functioning of government agencies are open to the scrutiny of the public. It is unjustifiable to consider these to be issues relating to national security. Article 3(b) is overly broad because it allows for the classification of all internal security measures, whether economic, production, supply, construction or transportation, regardless of whether disclosure of the information poses a threat to national security. Article 3(b) should include a harm test to determine whether information may pose a serious threat to military operations or internal security. Only information that poses such a threat should be classified as protected. Otherwise, the government would be able to restrict access to almost all information related to the military and public security. Articles 3(c) and 3(d) also are very broadly drafted and fail to include a harm test. Article 3(c) includes a broad range of information in which there potentially is a strong public interest in disclosing. If it was intended that only inter-state negotiations relating to the drafting of such documents should be excluded from disclosure, this should be stated with more clarity. The public is entitled to access to information concerning international agreements, foreign affairs and military intelligence unless the disclosure would pose a serious threat to national security. Similarly, Article 3(d) prohibits the disclosure of any information “relating to” “general intelligence” or “persons” connected with intelligence. This would extend to the publication of even the name of the person heading up the intelligence services. This provision needs to be replaced with a more specifically-targeted provision protecting material the disclosure of which would have a significant impact on national security. Article 6(a) imposes a partial harm test by protecting information that would pose a threat to the security of the State. However, the provision is overly inclusive since it also allows information to be classified as confidential on the basis of damaging unspecified State ‘interests’ or benefiting any foreign state or any other party. This is easily abused to protect Memorandum on Jordan’s Protection of State Secrets and Documents Provisional Law No. (50) for the Year 1971ARTICLE 19, London, 2005 – Index Number: LAW/2005/1205 - 12 -