Confidentiality:Confidentiality:Access to information, Access to information,

official secrets and official secrets and protecting sourcesprotecting sources

Doreen WeisenhausDoreen Weisenhaus

JMSC 0019JMSC 0019

November 2010November 2010

Remember Hong Kong Bill of Remember Hong Kong Bill of Rights Ordinance, Article 16?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 informationLimiting information in Hong Kong 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 Ordinance• Official Secrets Ordinance• Personal Data (Privacy) Ordinance• Future: Article 23/Theft of State Secrets/Other?

Part 1: Access to informationPart 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) lawsFreedom 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.

Judicial review!Judicial review!

Goals of FOI lawsGoals of FOI lawsMake 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 individualsDiscourage governments from using

context of national security to place unjustified restrictions

Who has FOI?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 Inter-American Court of Human Rights says access to information is fundamental says access to information is fundamental rightright (Reyes v Chile(Reyes v Chile, 2006), 2006)

Hong Kong does NOT have!

What does Hong Kong 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 COAILimitations 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 COAIExemptions Under COAI Defense and security internal discussion law enforcement economy management public service

management privacy of an

individual third party’s

commercial interests Public employment

research, statistics, analysis

immigration and nationality

damage to the environment

business affairs external affairs improper gain or

advantage legal restrictions premature requests

No HK “Sunshine”No HK “Sunshine” (open meeting) laws (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 governmentCosts of a secret government Documents and

records related to financial details of major government projects such as HK HK DisneylandDisneyland..

• HK SAR holds 57% equity. Won’t release agreement, attendance docs, financing, etc

Appealing to Ombudsman Appealing to Ombudsman Case 1: CyberportCase 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 OmbudsmanAppealing to Ombudsman Case 2: Subway suicide dataCase 2: Subway suicide dataIn 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 Appealing to Ombudsman Case 3: Salaries of appointeesCase 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 OmbudsmanAppealing to OmbudsmanCase 4: Melamine in foodCase 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 reviewedOmbudsman reviewed Code’s effectiveness 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 15th 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 experienceThe 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 1st 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

FOI-related storiesFOI-related storiesIn 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 scandalMPs 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 experienceThe U.S. FOI experienceFederal 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 factorCitizen journalist factor Russ Kick, blogger

http://thememoryhole.com

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 China: Open Government Information (OGI) regulationsInformation (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*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?

• NGOs, lawyers, rights advocates, academics pursuing. E.g., earthquake info, highway levies.

• Survey: 77% want to know officials’ income! • 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

ExamplesExamples

Winning case:

Lawyer requests police dept to provide info on motorcycle licenses, etc. Police refuse to respond, sued in court.

Court ordered police to comply

Losing case:

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:Part 2: Limits on newsgathering: Criminal investigations 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-Post-Ming PaoMing Pao, Prevention of, Prevention ofBribery Ordinance AmendedBribery 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 addedPublic 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?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 GardenCovering 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 newsgatheringUS 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:Part 2: Limits on newsgathering: Official secrets Official secrets

Prohibited areas : Security and intelligence Defense International relations Crime/Special investigations FUTURE? Theft of State Secrets,

Article 23

HK Official Secrets Ordinance 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 journalistsCurrent 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 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.

Public-interest defense?Public-interest defense?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 Part 3: Protecting sources/Newsroom searches, searches, Apple Daily v. ICAC, 2000Apple 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.

S. 84/85: 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. ICACApple 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 More on Apple Daily v. ICACApple Daily v. ICACApple 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 2004ICAC Newsroom raids 2004CFI, 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 SourcesMore on Protecting Sources

Can a reporter refuse to reveal his sources? No reporter shield law here

John Sham case: “The Newspaper RuleThe 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 USProtecting sources in USNewsroom raids: Zurcher v. Stanford Daily (1978) 1st A didn’t

prevent: “where materials sought to be seized may be protected by 1st A, the requirements of 4th 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 1st 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 UKProtecting Sources in UKNewsroom 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 worldProtecting 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 European Court of Human Rights says Art 10 (ECHR) supports reporters protecting sources protecting sources ((Uitgevers v. NetherlandsUitgevers v. Netherlands, 2010, , 2010, Financial Times v UKFinancial Times v UK, 2009; , 2009; Goodwin v UKGoodwin v UK, 1996), 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 SecretsJournalists 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.

Next week:Next week:

Copyright and the journalistCopyright and the journalist