Debate intelligently: more openness, less secrecy

5 February 2015

By Eduardo Bertoni

The author is Director of the Center for Studies on Freedom of Expression and Access to Information (CELE) at the University of Palermo. Also in Spanish.

This week started in the Honorable Senate of Argentina the debate on the reform of the Law 25,520 , known as the “Law of National Intelligence” -LIN-. The reasons that prompted the National Executive -PEN- send a draft reform of the law are publicly known. The debate on the need, merit or need to reform a law whose application in practice left much to be desired is not the subject of this note. Rather, I will focus on one aspect of the reform: on the classification and access to information related to intelligence activities. Unfortunately, the Executive’s proposal is, at least, insufficient, since they do not include guarantees transparency prevail as a rule on the secret.

It is obvious that there are areas where clarification may be exceptions to access to information There is no law in the world to enshrine access to information as an absolute right Actually, the opposite is true:.. Any law that enshrines the right to know clearly states that the governing principle is that of maximum publicity and then lead to the explanation of where that right may be limited. The bill of PEN is contrary to this principle established between other international norms and standards, the model law developed in the framework of the Organization of American States-OAS. And it is contrary because its design of the exceptions and nowhere explained or clarified that the rule should be open.

The PEN project also brings us no indication of how to proceed with the refusal to grant information. Or how to respond to a disagreement about the ratings granted to information. One can say that the answer will be in the courts. This is clear, but times of justice are often not guarantee a timely exercise of the right to know. The information is not known in time is information that loses its importance for the exercise of rights. Revelations of Edward Snowden within 30 years they met, no doubt, its impact would have been nil.

I said earlier that there are areas where access to information has been more problematic. Everything about the activities of national intelligence, as defined by the project fall into that bag because the unveiling of some information may put national security at risk. For this reason, the international community has developed a set of principles to achieve a balance between the right to know and national security. These principles were compiled into what is now known as Tshwane Principles .

These principles, based on the study of international and national legislation, standards and best practices, as well as expert reports provide, inter alia, that information must be kept secret only if disclosure imposes “an identifiable and substantial risk of significant damage to a legitimate national security interest “; that information relating to serious violations of human rights or humanitarian law should always be disclosed; and that public servants who expose government abuses and act in the public interest should be protected from retaliation.

None of that has been taken into account in the design of PEN. On the impact of these principles in the international arena enough just to remember the words of Frank La Rue where, as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression of the United Nations, said: “The Principles are a important for the development of the right of access to information and the right to the truth in cases of human rights violations contribution, and I think that should be adopted by the Human Rights Council. All states should reflect these principles in their interpretations of the law of national security. “

Our country has a debt: have a law on access to information at the federal level, as they have, with few exceptions, all Latin American countries is difficult to discuss a law that states secrets, as the draft amending LIN. without a framework law that guarantees the right to know. In doing so, the PEN has wasted a huge opportunity. But the process has already begun and my suggestion is to take into account the discussions, principles and models like those that excelled in this note. Otherwise, the law will punish a product that will benefit our democracy.

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