INTRODUCTION

Military information has historically been graded according to rigid security classifications. The relevance of this is increasingly being questioned in the post-Cold War period, resulting in defence forces being criticised for document over-classification.

This article seeks to argue the need for a simpler information management system that balances governments' need to protect sensitive military information against the need to ensure adequate public access to routine military information. It also seeks to outline a methodology whereby rigid departmental rules and subjective individual opinion can be integrated into an easy and accessible information management policy.

INTERNATIONAL TRENDS TOWARDS DECLASSIFICATION OF MILITARY INFORMATION

On 26 April 1993, President Clinton issued a Presidential Directive, in which a review of the current American system of classifying documents was ordered. The directive established a task force aimed at drafting new rules on national security classification. It is envisaged that this directive will lead to the release of literally millions of secret military and diplomatic records.2

Steven Garfinkel,3 Director of the Information Security Oversight Office, states that a government has a finite number of secrets, disproportionate to the mountain of classified documents that exist. This reflects not only the tendency towards over-classification of documents, but the lack of adequate criteria on which to determine what information is actually crucial to national security.

The South African military has repeatedly adopted the argument that the military is a 'special case' and, as such, should be treated differently to other government departments. This argument is based on the differences between its task and those performed by other departments. This argument was used during the public discussions on the Open Democracy Bill, where the military unsuccesfully argued that the provisions of this Bill should not apply to it.

Although it was recognised that there was merit in this argument, the military was ultimately not excluded from the Bill's jurisdiction. Routine military information has been placed under the same purview as other government information and only very specific, sensitive military information is to be treated differently. This is a marked departure from the pre-1994 situation where all military information was protected from public scrutiny under a blanket definition of 'national security'.

Defence information does indeed have definite characteristics which argue for special case treatment in some areas. For example, there is the need to protect the country's strategic intelligence and its ability to conduct foreign relations. In the same way, military operational plans, strategy, tactics and deployments have to be protected, as well as equipment performance capabilities, all of which maximise the country's ability to provide its citizens with adequate defence. It is argued, however, that this uniqueness does not in any way negate the Department of Defence's responsibility to be transparent. The same duties and responsibilities that apply to other departments and agencies, must also apply to the Department of Defence.

PROTECTING SENSITIVE MILITARY INFORMATION IN THE INTERESTS OF NATIONAL SECURITY

The question is thus raised : What specific military information needs to enjoy special protection? In order to understand this, one must develop an understanding of what information is deemed to be critical to national security.

Mr Ken Owen,4 former editor of the Sunday Times, posed the following problem to the military: "I think you have a major unresolved question, what is a legitimate military secret, and who decides? Secrets should be secrets, told to nobody, and the rest should be open." This statement clearly captures the post-modern military dilemma of a changing national security paradigm.

Modern human rights legislation routinely guarantee the rights and freedoms of its citizens, including the fundamental rights of freedom of thought, belief, opinion and expression, the freedom of the press and the freedom of association. The Canadian Charter of Rights and Freedoms5 and the Canadian Bill of Rights6 can be cited as modern examples of such fundamental rights and freedoms.

It is generally accepted that all of these may however be limited, should it be reasonably expected that the disclosure of information would detract from the government's ability to conduct international affairs, interfere unduly in the government's capacity to defend the country, or if it would detract from the government's ability to detect, prevent or suppress subversive or hostile activities.7

Canada8 specifically provides five reasons why public access to information may be restricted. These are:

information relating to military tactics or strategy, military exercises and operations;



information relating to the quantity, characteristics, capabilities and deployment of weapons and other defence equipment;



information relating to the characteristics, capabilities, performance, potential, deployment, and function of any military force, unit or personnel;



information obtained for intelligence relating to the defence of Canada or any state allied or associated with Canada; and



information relating to the communications or cryptographic systems of Canada.

The South African Open Democracy Bill contains similar sentiments to those of the Canadian legislation outlined above. The Bill provides that a request for information may be refused if the information would be likely to substantially harm the national defence or security of the country. Similar to the Canadian legislation, it provides for five specific reasons for the restriction of public access to information:9

if the information would frustrate any measure aimed at the prevention, detection or suppression of aggression (including sabotage or terrorism) or activities that may be aimed at changing the constitutional order of the Republic;



if the information would disclose capabilities, deployment or performance of a person or body intending to prevent, detect or suppress aggression, etc.;



if the information would jeopardising the effectiveness of arms, equipment (including communication and cryptographic equipment) used, intended to be used or being developed, by disclosing its capabilities, quantity or deployment;



if the information would jeopardise the effectiveness of collecting, assessing or handling information (intelligence) or the disclosure of a confidential source of information; and



if the information would cause serious and identifiable harm to the capacity of the Republic to maintain or conduct (international) relations.

In comparison with the Canadian legislation, South Africa's proposed legislation is not only more rigorous, but actually provides more protection for military information than most international legislation.

DEFINING 'PUBLIC INTEREST'

The argument around freedom of information versus national security rests ultimately on 'public interest'. This is not an easy concept to define, as the line between the genuine right to know and that which is merely of interest to the general public is not clear10 and ultimately rests on the subjective opinion of an individual. Public interest is defined by Ellis and Oppenheim11 as being "where the good of society may need to take precedence over individual privacy."

The Open Democracy Bill12 indicates that an understanding of public interest is derived from where, in "giving due weight to the importance of open, accountable and participatory administration, the public interest in disclosure clearly outweighs the need for non-disclosure."

Although the Open Democracy Bill13 does not offer an exhaustive definition of what constitutes public interest, it does contextualise public interest by indicating that information should be revealed if there is:

an abuse of authority, illegality, neglect in the performance of the duties of an official or government body;



injustice to an individual;



a danger to the environment or the health and safety of an individual or the public; or



the unauthorised use of funds or other assets.

METHODOLOGY FOR MANAGING MILITARY INFORMATION

The balancing of national security versus public interest is at its most difficult when deciding on whether or not to disclose sensitive military information. Internationally, there exists two options for an information management system: firstly, a rules-based approach and secondly, a case-by-case approach in which subjective opinion and judgement is used.

The benefit of a rules-based approach is that the criteria for disclosure or non-disclosure are clear defined and easily identifiable. A rules-based approach lends itself towards inherent inflexibility and an insufferable procedural bureaucracy. A case-by-case approach on the other hand, allows for flexibility, yet is more time consuming and prone to inconsistencies and subjectivity.

A rules-based approach is certainly applicable to the disclosure of routine government information, but in the case of sensitive military information (which does have definite peculiarities), a rules-based approach is too rigid in its application. In the same manner, a pure case-by-case approach is not desirable as it may lead to information manipulation and gross inconsistencies.

It is argued, therefore, that military information, similar to intelligence and foreign policy information, has too many peculiarities to apply a rigid rules approach or a flexible case-by-case approach. Rather, it lends itself to a mixture of the two approaches which will allow sufficient flexibility without compromising the existence of clear guidelines. This methodology has been applied in UK competition policy investigations, mixing a rules and case-by-case approach very successfully.

The solution therefore lies in dealing with routine military information in a rules-based manner, and the Open Democracy Bill provides a sound framework against which this can be accomplished. Sensitive military information, which often has foreign policy and trade and industry implications, needs to be dealt with in a case-by-case manner that takes holistic cognisance of a number of impacting issues. If one adopts this approach, the next obstacle is that of ensuring appropriate accountability for subjective decisions.

The ultimate responsibility and accountability for mooting or vetoing a request for information must reside at the quasi-political level, where a decision can be made that takes into account a balance of national and public interest. Accountability must therefore rest with the head of department and the minister. There should also be a system of recourse that handles appeals against decisions taken, that is able to arbitrate between the Department of Defence and the public.

As stipulated in the Open Democracy Bill, it is essential that there is free and fair access to the courts for external appeal and adjudication. Any decision by the court must be binding on both parties.

ENDNOTES

The views, opinions and deductions are solely the opinions of the writer and do not represent the opinions of the Department of Defence.



Editor and Publisher, President Clinton takes First Step towards Declassifying D Documents, 8 May 1993, p. 17.



S Garfinkel, quoted by T Weiner, The New York Times, 5 May 1993, reproduced in the Editor and Publisher, ibid.



K F Owen, Personal correspondence, 29 March 1995.



Canadian Government, Canadian Charter of Rights and Freedoms, Constitution Act, 1982, art. 2.



Canadian Government, Canadian Bill of Rights, Ontario, 1960.



Canadian Government, Access to Information Act, 1980, art. 12 (1).



Ibid., art. 15.(1)(a-i).



Republic of South Africa, Open Democracy Bill, Government Gazette, Government Printers, Pretoria, 1995.



S Ellis and C Oppenheim, Legal Issues for Information Professionals, part III, Journal of Information Science, Principles and Practice, 19(2), 1993, p. 92.



Ibid., p. 94.



Republic of South Africa, Open Democracy Bill, op. cit., art. 34(1)(a-e).



Ibid., p. 60.