Whistleblowers and journalists could face jail for revealing information obtained under FoI

Whistleblowers and journalists could be sent to prison for disclosing information that would otherwise be available under freedom of information legislation under proposals by the government’s law reform body, according to freedom of information campaigners.

In a joint response, the Campaign for Freedom of Information (CFOI) and ARTICLE 19 argue that the Law Commission’s plans for a so called Espionage Act are about to set the Freedom of Information Act and the Official Secrets Act 1989 on ‘a collision course’.

The Commission is proposing to make it easier to secure convictions under the 1989 legislation. ‘The proposals would substantially and unnecessarily extend the reach of the 1989 Act,’ the two groups say. ‘They would threaten journalists and whistleblowers who release information about danger to the public, abuse of power or serious misconduct. They would go a long way towards turning the clock back towards the discredited section 2 of the 1911 Official Secrets Act.’

Under the 1989 Act, the leaking of information and its publication is an offence however some offences require proof that a disclosure is ‘likely’ to damage defence, international relations, law enforcement or else threaten the work of the security services. The Law Commission argues the ‘likely to damage’ test prevents prosecutions being brought as it requires more damaging information to be revealed in court.

The CFOI and ARTICLE 19 argue that sensitive evidence could be given in camera during a trial of OSA offences and argue the Commission has not explained why such a safeguard is inadequate. The groups argue that the proposals would ‘punish those making disclosures that are unlikely to cause harm’; make it a criminal offence to ‘leak information to which there is a public right of access’; increase the maximum prison sentence for those convicted; and not permit a public interest defence. ‘There is no indication that the Commission has appreciated the highly oppressive cumulative effect of these changes, which we believe should be fundamentally reconsidered,’ they add.

The proposals were ‘not only oppressive but unworkable’, commented CFOI director Maurice Frankel. ‘It is beyond common sense to make it an Official Secrets offence to leak information which anyone could obtain under FOI. The proposals would deter officials from discussing information that has lawfully been made public. It will set the FOI Act and the Official Secrets Act on a collision course. It is not the Law Commission’s job to make an ass of the law but that’s what its proposals would do.’

‘In many countries in the world, secrecy laws are abused to imprison and harass journalists, whistleblowers and civil society, in particular in many Commonwealth countries where these laws are a legacy of British colonial control and oppression,’ said ARTICLE 19 executive director Thomas Hughes. ‘If taken forward, the Commission’s proposals would move the clock backwards, undoing improvements in the UK’s 1989 Official Secrets Acts, and setting a dangerous example of eroding freedom of expression protections, which may be copied by oppressive regimes globally.’

The UK recently slipped down the World Press Freedom Index rankings by two places to 40 as a result of – according to the Press Gazette – proposals for the Espionage Act, Snoopers’ charter as well section 40 of the Crime and Courts Act.