ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION of national security laws, in many cases finding violations of fundamental human rights. In a recent case concerning Romania, involving data that had been gathered on the applicant by the security services, the Court noted that it had “doubts as to the relevance to national security of the information.”24 It went on to find a violation of the applicant’s rights. The Court has also warned against the use of national security laws even in situations of armed internal conflict. While stressing that it would not condone the use of the media as a mouthpiece for advocates of violence, it has said that States “cannot, with reference to the protection of territorial integrity or national security or the prevention of crime or disorder, restrict the right of the public to be informed by bringing the weight of the criminal law to bear on the media.”25 2.2.1 Specific requirements for restrictions relating to freedom of information Further to the standard three-part test for restrictions on freedom of expression, there is specific guidance on when a public body is under an obligation to disclose information. These criteria reflect the general requirements of the restrictions test but provide a more detailed test for issues pertaining to freedom of information. Accordingly, in line with Article 19(3) of the ICCPR, a public body must disclose any information which it holds and is asked for, unless: 1. 2. 3. The information concerns a legitimate protected interest listed in the law; Disclosure threatens substantial harm to that interest; and The harm to the protected interest is greater than the public interest in having the information. 26 1. Legitimate Protected Interest Freedom of information laws must contain an exhaustive list of all legitimate interests on which a refusal of disclosure is based. This list should be limited to matters such as law enforcement, the protection of personal information, national security, commercial and other confidentiality, public or individual safety, and protecting the effectiveness and integrity of government decision-making processes.27 Exceptions should be narrowly drawn to avoid capturing information the disclosure of which would not harm the legitimate interest. Furthermore, they should be based on the content, rather than the type of document sought. To meet this standard, exceptions should, where relevant, be time-limited. For example, the justification for classifying information on the basis of national security may well disappear after a specific national security threat subsides. 2. Substantial Harm Once it has been established that the information falls within the scope of a legitimate aim listed in the legislation, it must be established that disclosure of the information would cause substantial harm to that legitimate aim. 24 Rotaru v. Romania, 4 May 2000, Application No. 28341/95, para. 53. Erdogdu and Ince v. Turkey, 8 July 1999, Application Nos. 25067/94 and 25068/94, para. 54. 26 See ARTICLE 19’s The Public’s Right to Know, at Principle 4. 27 Ibid. 25 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 -6-