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Resolution 1954 (2013) Final version
National security and access to information
1. The Parliamentary Assembly recalls
the importance of the principle of transparency, including access
to information held by public authorities, for democracy and good
governance in general and for the fight against corruption in particular.
2. It welcomes the fact that the Council of Europe was the first
intergovernmental organisation to elaborate an international legal
instrument on access to information, namely the Council
of Europe Convention on Access to Official Documents (CETS No. 205), and recalls its Opinion 270 (2008) on the draft
convention in which the Assembly had encouraged the Committee of
Ministers to improve the text with a view to ensuring even greater transparency.
The convention still requires four ratifications in order to enter
into force.
3. The Assembly considers legitimate, well-defined national security
interests as valid grounds for withholding information held by public
authorities. At the same time, access to information forms a crucial component
of national security, by enabling democratic participation, sound
policy formulation and public scrutiny of State action.
4. Recalling the Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political
Rights, the Assembly strongly confirms that the systematic violation
of human rights undermines national security and may jeopardise
international peace and security. A State responsible for such violation
shall not invoke national security as a justification.
5. Recalling its Resolution
1838 (2011) on abuse of State secrecy and national security:
obstacles to parliamentary and judicial scrutiny of human rights
violations, and its Resolution
1675 (2009) on the state of human rights in Europe: the
need to eradicate impunity, the Assembly stresses the need to place
reasonable limits upon the use of national security to justify restrictions
to access to information.
6. In particular, the Assembly confirms its position, expressed
in paragraph 4 of Resolution
1838 (2011), that information concerning the responsibility
of State agents who have committed serious human rights violations
such as murder, enforced disappearance, torture or abduction does
not deserve to be protected as secret. Such information should not
be shielded from judicial or parliamentary scrutiny under the guise
of “State secrecy”.
7. The Assembly welcomes the adoption, on 12 June 2013, by a
large assembly of experts from international organisations, civil
society, academia and national security practitioners, of the “Global
Principles on National Security and the Right to Information” (“the
Tshwane Principles”), which are based on existing standards and
good practices of States and international institutions. The Tshwane
Principles are designed to give guidance to legislators and relevant
officials throughout the world with a view to reaching an appropriate balance
between public interests both in national security and in access
to information.
8. The Assembly supports the Tshwane Principles and calls on
the competent authorities of all member States of the Council of
Europe to take them into account in modernising their legislation
and practice concerning access to information.
9. The Assembly wishes to stress, in particular, the following
principles.
9.1. As a general rule,
all information held by public authorities should be freely accessible;
in addition, business enterprises, including private military and
security companies, have the responsibility to disclose information
in respect of situations, activities or conduct that may reasonably
be expected to have an impact on the enjoyment of human rights.
9.2. Exceptions to the rule of free access to information which
are based on national security, or other equally important public
interests, must be provided for by law, pursue a legitimate purpose
and be necessary in a democratic society.
9.3. Limitations to the rule of free access to information,
including the rule of the neutrality of the Internet, should be
interpreted restrictively. The burden of demonstrating the legitimacy
of any restriction rests with the public authority seeking to withhold
information.
9.4. Rules on the procedure for the classification and declassification
of information and the designation of persons authorised to perform
these tasks should be clear and publicly accessible. Information
may be withheld on national security grounds for only as long as
is necessary to protect a legitimate national security interest.
Public archives containing secret information should periodically review
whether the legitimacy of secrecy still exists on national security
grounds.
9.5. As a safeguard against overly broad exceptions, access
to information should be granted even in cases normally covered
by a legitimate exception, where public interest in the information
in question outweighs the authorities’ interest in keeping it secret.
An overriding public interest can typically be found where the publication
of the information in question would:
9.5.1. make an important
contribution to an ongoing public debate;
9.5.2. promote public participation in political debate;
9.5.3. expose serious wrongdoings, including human rights violations,
other criminal offences, abuse of public office and deliberate concealment
of serious wrongdoing;
9.5.4. improve accountability for the running of public affairs
in general and the use of public funds in particular;
9.5.5. benefit public health or safety.
9.6. Information about serious violations of human rights or
humanitarian law should not be withheld on national security grounds
in any circumstances.
9.7. A person who discloses wrongdoings in the public interest
(whistle-blower) should be protected from any type of retaliation,
provided he or she acted in good faith and followed applicable procedures.
9.8. Requests for access to information should be dealt with
in a reasonable time. Decisions to refuse access should be duly
motivated, open to appeal before an independent national authority
and ultimately subject to judicial review. Upon receipt of a request
for information, a public authority should in principle confirm
or deny whether it holds the requested information.
9.9. Public oversight bodies in charge of overseeing the activities
of the security services should be independent from the executive
and have relevant expertise, robust powers of investigation and
full access to protected information.
10. The neutrality of the Internet requires that public authorities,
Internet service providers and others abstain from using invasive
wiretapping technologies, such as deep packet inspection, or from
otherwise interfering with the data traffic of Internet users.
11. Recalling Recommendation No. R (2000) 7 of the Committee of
Ministers on the rights of journalists not to disclose their sources
of information, the Assembly reiterates that the following measures
should not be applied if their purpose is to circumvent the right
of journalists not to disclose information identifying a source:
11.1. interception orders or actions
concerning communication or correspondence of journalists or their employers;
11.2. surveillance orders or actions concerning journalists,
their contacts or their employers;
11.3. search or seizure orders or actions concerning private
or business premises, belongings or correspondence of journalists
or their employers, or personal data related to their professional
work.
12. The Assembly calls on all the member States of the Council
of Europe which have not yet done so to sign and ratify the Council
of Europe Convention on Access to Official Documents and to implement
and, in due course, further improve the convention in the spirit
of the Tshwane Principles.
13. The Assembly is worried about recent disclosures on large-scale
surveillance of communications by secret services and resolves to
follow up this important issue in due course.