Confidentiality: Access to information, official secrets and ...Presentation Transcript
Confidentiality: Access to information, official secrets and protecting sources
Remember Hong Kong Bill of Rights Ordinance, Article 16?
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers…
Limiting information in Hong Kong
No Freedom of Information Act
No archival laws for retention/management of public records
No “Sunshine” (open meetings) laws
Restrictions on reporting court cases
Restrictions on reporting criminal investigations
Control of Indecent and Obscene Articles
Official Secrets Ordinance
Personal Data (Privacy) Ordinance
Future: Article 23/Theft of State Secrets/Other?
Part 1: Access to information
Governments hold many “secrets” they do not want to be disclosed
But disclosure may be in the public interest (eg. UK MPs expenses scandal)
Journalists have a duty to obtain information
Should laws place an obligation on the government to make info available?
Freedom of Information (FOI) laws
What is FOI?
Laws compelling governments to release records, documents, information to public
No need to show legal interest or provide a reason; some allow anonymous requests or for non-government bodies.
Goals of FOI laws
Make government accountable
Facilitate acquisition of knowledge
Weapon against corruption, abuse of power
Improve quality of official decision-making
Enhance participatory democracy
Give more power to individuals
Discourage governments from using context of national security to place unjustified restrictions
Who has FOI?
More than 80 countries: Sweden (1766), Finland (1951), US (1966), Australia (1982), New Zealand (1982), Thailand (1997), South Korea (1998) and Japan (1999), India (2005), Indonesia (2010). Even China!
Inter-American Court of Human Rights says access to information is fundamental right (Reyes v Chile , 2006)
Hong Kong does NOT have!
What does Hong Kong have?
Code on Access to Information (1995)
Introduced to head off attempts for FOI law.
Each government agency must publish or make available a list of records held by the agency
Covers all 91 government agencies and departments, including police, ICAC, Chief Secretary.
Must respond to requests in 21 working days
Must designate an access-to-information officer
Overseen by the Constitutional and Mainland Affairs Bureau
Sounds good, but……
Limitations of COAI
Hard to enforce
No provision for judicial review
Can only complain to Ombudsman, which reviews government actions but cannot compel
Does not apply to administrative tribunals, courts
16 areas exempted from disclosure
Exemptions Under COAI
Defense and security
public service management
privacy of an individual
third party’s commercial interests
research, statistics, analysis
immigration and nationality
damage to the environment
improper gain or advantage
No HK “Sunshine” (open meeting) laws
In addition to 91 government agencies, more than 500 advisory boards, committees appointed by government (240 statutory bodies).
Antiquities Board, which advises on heritage preservation: For 30 yrs, agendas, meeting times, minutes not public; outsiders allowed at meeting only by invite, only info released was final decision. After Star Ferry controversy in 2007, some meetings/docs made public, but still limited
Legislative Council seeking an overhaul since 1996
Home Affairs Bureau conducting review of role, responsibilities, “openness and transparency.” Consultation report 2003. Final report?
Costs of a secret government
Documents and records related to financial details of major government projects such as HK Disneyland .
HK SAR holds 57% equity. Won’t release agreement, attendance docs, financing, etc
Appealing to Ombudsman Case 1: Cyberport
Multi-billion dollar high-tech development project. In 2000, HKSAR signed confidential agreement w/PCCW, headed by son of HK’s wealthiest tycoon, to design, build, market tech-themed development. Granted w/o open tender. Goal : attract IT firms Result: Known more as luxury residential development.
Challenge to Ombudsman in 2004 by activist David Webb for directors reports, audited financial statements. Ombudsman supported govt’s refusal on “commercially sensitive info” grounds, but said gov’t violated code’s “spirit”, said it should apologize. It did.
Appealing to Ombudsman Case 2: Subway suicide data
In 2006, HKU researcher requested data from transport bureau on railway suicides to assess effectiveness of railway screen doors in preventing suicides.
Government denied info on privacy grounds, saying suicide victims could be identified comparing data to news reports
Complaint filed w/Ombudsman, which ruled for researcher in 1/07.
Transport bureau continued to deny access to information; Ombudsman conducted investigation
Aug 07, Ombudsman concluded denial was “overcautious,” breached code in “letter” & “spirit”; recommended staff training
Researcher finally received data (14 months after initial request)
2008: Data used for Journal of Affective Disorders article, concluding railway suicides were reduced by 60% after screen doors installed
Lawmaker consider introducing legislation to require Mass Transit Railway Corp to build more screen doors. No new laws yet.
Appealing to Ombudsman Case 3: Salaries of appointees
1 June 2008: Chief executive rejects calls to make public the salaries of individual political appointees “to avoid unnecessary comparisons” and for “privacy” reasons.
(Note: Privacy Commissioner said political appointees should expect salaries to be disclosed for government transparency)
6 June 2008: SCMP files complaint with Ombudsman after government declines request filed under COAI
11 June 2008: CE apologizes, reveals appointee salaries! (Note: many salaries still not released: university presidents, NGO execs receiving subsidies, etc)
(BTW, decisions of Ombudsman are confidential!)
Appealing to Ombudsman Case 4: Melamine in food
2008 HK gov’t tested food samples for melamine. Would only release melamine levels of samples failing test and not samples marked “satisfactory.” Would not specify what were satisfactory levels.
Apple Daily requested under COAI. Food, Environment and Health Dept said no, “to avoid confusion and unnecessary doubts among public” – Not an exemption!
Apple Daily appealed to Ombudsman, who substantiated claim after 8-month investigation. Gov’t released info, now even maintains search tool on website!
Ombudsman reviewed Code’s effectiveness
Feb 2009, Ombudsman announced review to look into gov’t compliance, mechanism for monitoring its own performance, measures to promote public awareness and areas of improvement
April 2009, before review completed, government rules out legislation on access to information or legal protection of whistleblowers
Jan 2010, review report released (on 15 th anniversary of code). Criticisms included:
Misuse of reasons set out in code to refuse request
Lack of justification for denials of info or using reasons not specified in code
Inadequate publicity of code
The UK FOI experience
2000, U.K. passes FOI law
2005, FOI law in effect.
Exemptions: national security, defense, matters likely to jeopardize economic interests of the country, material relating to formulation of government policy, any communications with Queen and royal family
In 1 st year, more than 100,000 requests, 900 in first week! 2,300 complaints (2.3%)
Media only about 10% of requests
2006, government considered curtailing, claiming many requests trivial. Proposals dropped when Gordon Brown become PM
In first year, scores of stories including:
# of patients who died in operations performed by every heart surgeon in National Health Service
Data from Crown Prosecution Service showed some criminals were 8x more likely to go free in some parts of UK
Farming subsidies given to wealthy landowners,royal family
Identified schools manipulating exam entries to improve school standings
Excessive use of taxi receipts by leader of Scottish Tories, led to resignation
In years 2006 and 2007, more than 1,000 news stories !!
WAR: Britain spends > £150m to protect diplomats in Iraq and Afghanistan; 11,000 soldiers AWOL in Iraq, 800 test positive for drugs
http:// www.cfoi.org.uk (Campaign for FOI)
MPs expenses scandal
Journalists used FOI laws in bid to obtain details of MPs expenses
Parliament resisted strongly
May 2008, Court rules in favour of disclosure
2009, information revealed massive abuse
Second homes, swimming pools (floating house for ducks!), pornographic dvds etc
2010: 4 British lawmakers charged w/fraud
The U.S. FOI experience
Federal FOIA (1966), one of earliest laws. (Sweden 1766, Finland 1951, but more than half passed since 1990)
Fed FOIA for Fed gov’t only; not entities receiving fed $$
No government – state or federal – maintains centralized system, so requests directed to each agency
1996 FOI applies to electronic records
Denials can be appealed to higher agency official or special commission. All can appeal to court
2007 Open Government Act to fix practical problems, e.g., excessive delay, lack of responsiveness, litigation gamesmanship
Creation of Office of Government Information Service at National Archives to mediate
Dec 2009 Obama’s Open Government Directive
Much assistance to reporters to get info. E.g., www.rcfp.org
Citizen journalist factor
Russ Kick, blogger
Made FOIA request w/ Dover Air Force Base. Initially denied, but won administration ruling.
In 2004, received 288 photos of flag-draped coffins coming back from Iraq.
China: Open Government Information (OGI) regulations
State Council adopted Open Government Information (OGI) regulations in 2007, effective May 2008. (State Council Order 492)
Requires government to disclose wide-ranging scope of info (sections 10-12) (either by publicizing or providing to public upon request).
Hundreds of local legislation enacted subsequently
History : local OGI initiatives in Shanghai, Guangdong and elsewhere in the early 2000s.
OGI goals : enhance transparency, strengthen accountability, improve governance, allow citizens to exercise right to know with legal remedy
China’s OGI Experience*
Legal hurdles : Primary legislation v. subsidiary legislation (interpretation by local govts, ministries, courts). How to make consistent?
E.g., OGI regs say exemption for “state secrets, trade secrets, public order, privacy” but local legislation allows exemption for “info that likely affects inspection, investigation, gathering of evidence or other law enforcement activity, or endanger the safety of persons, property of citizens, legal persons, other organizations”!!
Political hurdles : Much info to be publicized but not embarrassing info? E.g., entertainment, budgets, salaries?
Will court system stand up? Since 2004, 400 cases received in Shanghai courts. How many have plaintiffs won?
Cultural hurdles : secrecy, privilege, etc.
*research/analysis by Fu Hualing
Lawyer requests police dept to provide info on motorcycle licenses, etc. Police refuse to respond, sued in court.
Court ordered police to comply
Beijing has 700,000 dos, police charge 300 per dog per year
Zhu Fuxiang wanted to know how $ spent
Police, Finance Bureau and court refused case
Part 2: Limits on newsgathering: Criminal investigations
Ming Pao v. Attorney General, 1996
Ming Pao disclosed an ICAC investigation. “ICAC took steps to meet reporters in its investigation in relation to the developers joint bidding for land…the ICAC is investigating whether anyone had infringed any ordinance in a land auction...in which over 10 developers combined to bid for land…The target of this ICAC investigation has not yet been ascertained.”
While UK Privy Council said Ming Pao was not liable as there was no specific suspect, it also ruled that Prevention of Bribery Ordinance did not violate right to freedom of expression under Art. 16 of BORO.
Post- Ming Pao , Prevention of Bribery Ordinance Amended
As result of Ming Pao case, Legco amended the law. Now, the POBO permits reporting criminal investigations in 6 circumstances:
1) warrant issued for suspect’s arrest
2) suspect arrested (with or w/o warrant)
3) ICAC forces suspect to furnish detailed information about finances
4) ICAC serves restraining order preventing disposal of certain property
5) ICAC searches suspect’s home
6) ICAC confiscates suspect’s passport or other travel document
Public interest defense added
Legco also adopted a limited public interest defense of “reasonable excuse” if disclosure reveals “any unlawful activity, abuse of power, serious neglect of duty, or other serious misconduct by the commissioners, the deputy commissioner or any officer of the commission; or a serious threat to public order or to the security of Hong Kong or to the health or safety of the public.”
Remember, covering court cases?
Statutory restrictions against releasing certain information once legal case starts
No identification of juveniles
No identification of victims of sex offenses
Other restrictions of judicial proceedings
Contempt of court (“wrongful interference with administration of justice”) for commenting on issues before court, publishing photos of suspect, casting doubt on credibility of defendant/witnesses, reporting jury deliberations, etc
Covering protests, Chater Garden
April 2002, 2 journalists arrested and handcuffed by police while covering a right-of-abode protest in Chater Garden in Central.
Part of trend worldwide to restrict media in covering public demonstrations
Increasing use of “designated press areas”
Problems: too far from action scene, police block view of journalists, not allowed to leave press areas
Police Force Procedure Manual : “Photographers and TV cameramen in particular should be given an opportunity to have vantage points; they have the right to take photographs or TV footage in a public place.”
What about Public Order Ordinance?
US on newsgathering
“ No constitutional right of access to scenes of crime or disaster when the general public is excluded." (Branzburg v. Hayes, 1972)
Although governments generally may not limit or deny access to public forums, they may impose reasonable "time, place and manner" restrictions.
3-part test : must be content neutral, narrowly tailored to serve a significant government interest, & must leave open other channels of communication.
U.S. Sup Court not yet considered whether media have right to follow news onto private property .
Regardless of whether news occurs on public or private property, police can limit media access when they believe such restrictions are needed for public safety or to prevent interference with investigations
Part 2: Limits on newsgathering: Official secrets
Prohibited areas :
Security and intelligence
FUTURE? Theft of State Secrets, Article 23
HK Official Secrets Ordinance
Modeled on UK’s Official Secrets Act 1989, it covers:
Spying and related offences
Unlawful and damaging disclosure of protected information
Persons affected include:
current or past members of the security services
current or past Crown servants or gov’t contractors
persons who are not and never have been members of the security services, Crown servants or gov’t contractors
Current impact on journalists
Persons who are neither members of the security force or public servants and government contractors:
damaging disclosure without lawful authority knowing or having reasonable cause to believe that (1) information is protected; and (2) information comes into possession by an unauthorized disclosure; and (3) disclosure would be damaging
Defense if no knowledge and no reasonable cause to believe the nature of the information and the damaging effect of disclosure
Article 23 proposed changes
Proposed new category of protected information:
Unlawful and damaging disclosure of information on “ relations between the Central Authorities of the PRC and the HKSAR” -- But what does that mean? More than national security. To cover political or economic information? Immigration? Air service? Consulates?
Proposed new way on how protected information is obtained :
directly or indirectly by illegal access: theft, robbery, burglary, bribery, hacking. No longer would matter whether info came from government source directly.
After July 1, 2003 rally, government adds public- interest defense to its proposals (if person makes a disclosure that reveals unlawful activity, etc) but gov’t also limited the defense by these 2 caveats:
Disclosure does not exceed extent that is necessary for revealing matter
Balancing test for public interest served by disclosure v. nondisclosure.
However, since the Article 23 proposals were withdrawn, no public-interest defense currently exists.
Part 3: Protecting sources/Newsroom searches, Apple Daily v. ICAC, 2000
History : Interpretation and General Clauses Ord. amended in 1995 for press to have better procedural safeguards against search and seizure of “journalistic” materials.
reasonable grounds for believing that an arrestable offence has been committed
there is journalistic material on premises, material is likely to be of “substantial value” or “relevant evidence” for arrestable offence
other methods of obtaining materials have been tried and failed or have not been tried because unlikely to succeed
and there are reasonable grounds that search is in public interest
Apple Daily v. ICAC
Apple Daily reported a series of police actions with great details in 1999. Police suspected Apple obtained confidential documents. ICAC took over investigation
ICAC narrowed suspects to Apple reporter and 2 police communications officers
ICAC obtains 2 search warrants by Court of First Instance
ICAC raids Apple’s newsroom Nov. 1999 and took away documents, photos, computers, disks. 8 people arrested. Apple challenged search warrants
More on Apple Daily v. ICAC
Apple says warrants are defective and overreaching.
Two warrants under review:
1 under 17(1) Prevention of Bribery Ordinance provided power to search, no reference to seize
2d under s.85 of Interpretation of General Clauses Ordinance that authorized search and seizure of “journalistic materials”
Court of Final Appeal : doesn’t matter, ICAC s. 10 allows officers to seize and retain anything that officer has reason to believe as evidence of offenses. Officer has authority independent of warrant! Apple misled about source of authority, not fact of authority.
Reaction: HKJA : “If journalists’ sensitive material can be seized, the identity of their informers…might be revealed. As a result, no informer will tell us the story in confidence, our work will be greatly affected and the right of citizens to know such information will not exist”
ICAC Newsroom raids 2004
CFI, Hartmann: “must be viewed through prism of Art. 27 of Basic law…a free press must be an effective press… Without protection, sources may be deterred from assisting the press in informing the public on matters of public interest.”
7 principles (serious intrusion on freedom of press, just saying there are reasonable grounds not enough, that journalists themselves are subject of criminal investigation not enough, preferred method is production order, risk that material may be hidden or destroyed must be “real risk”, judge must give reasons)
Court of Appeal: Forget 7 principles! No preferred method; if journalist a suspect, warrant may be appropriate; no need to show real risk, enough to show “may seriously prejudice the investigation”
Note: While “dicta”, still persuasive!!
More on Protecting Sources
Can a reporter refuse to reveal his sources?
No reporter shield law here
John Sham case: “ The Newspaper Rule ”
Defendant at pretrial stage of defamation case should NOT be forced to disclose source of information. Generally considered to have broader application.
In another Apple Daily case, paper did NOT have to disclose name of reporter
Under “theft of state secrets”?
Protecting sources in US
Newsroom raids : Zurcher v. Stanford Daily (1978) 1 st A didn’t prevent: “where materials sought to be seized may be protected by 1 st A, the requirements of 4 th A must be applied with scrupulous exactitude.”
Privacy Protection Act 1980: limits govt from search/seizure of materials from journalists. Must get a subpoena (search warrant not enough) unless believed that reporter has committed crime, that someone will be harmed if materials are not seized or if police fear materials might be destroyed if subpoena sought.
Revealing sources/testifying : Branzburg v Hayes (1972), journalists did not have 1 st A privilege to refuse to testify before grand jury. Despite this, courts have said there is a constitutional, common law privilege protecting journalists subpoenaed to testify at legal hearing. However, in recent times, reporters from NYT, Time, others forced to testify in criminal cases. Now, maybe even civil cases. In 2007, Congress considers federal shield law . Still not passed.
In limbo, Wikileaks effect?
Protecting Sources in UK
Newsroom raids : Police and Criminal Evidence Act 1984 excludes “journalistic material,” “material acquired or created for purposes of journalism”
--Must be held in confidence. If not, police must show public interest in obtaining. E.g., film. Generally, police not entitled to search warrant for excluded material, but usually for official secrets..
Journalists are protected unless it is “necessary in the interests of justice or national security for prevention of disorder or crime.” In 1980s Guardian forced to hand over papers which revealed source of details re: delivery of missiles. The source, a civil servant in foreign office, was jailed.
Advice from lawyers : if journalist about to publish article revealing official secrets, destroy material leading to source’s identity!
Contempt of Court Act 1981 (HK does not have) : “No court may require a person to disclose…the source of information contained in a publication for which he is responsible unless it is established to the satisfaction of the court that is necessary in the interests of justice or national security or for the prevention of disorder or crime.”
Protecting sources around the world
Global study of protecting sources found widespread legal recognition. 100 countries adopted laws to allow journalists to keep promises to confidential sources that their identities will not be revealed.
New laws have been adopted in Belgium, Mexico, Switzerland, New Zealand, Australia, Angola, Luxembourg and El Salvador.
Recognized by many major international bodies including UN, Council of Europe, African Union, Organization for American States,Organization for Security and Cooperation in Europe.
European Court of Human Rights says Art 10 (ECHR) supports reporters protecting sources ( Uitgevers v. Netherlands , 2010, Financial Times v UK , 2009; Goodwin v UK , 1996)
Most significant problems are found in countries lacking a specific law such as US, Canada, Netherlands and Ireland.
Protections also undermined by search warrants on media offices and journalists' homes, legal and illegal surveillance and national security claims.
Journalists and Secrets
Journalists worldwide and in HK have long depended on confidential government information.
JMSC journalist survey 2003: 74% use anonymous sources. One-third used confidential government documents in news stories in previous year.