Dear FOI Advocates: The Justice Initiative is in the process of collecting information about penalties for public servants who disclose classified information to the public. One use of this information will be to support a challenge to South Africa's new Protection of State Information Law. We thus would be very grateful if you could respond by May 27, and sooner if possible. Arwa Shobaki, a lawyer working with us, created the attached chart from information collected by Amy Jacobsen, an academic at the U of Copenhagen, from experts on the following 20 European countries: Albania
France Norway Slovenia Australia Germany Poland Spain Belgium Hungary Romania Sweden Czech Rep Italy Russia Turkey Denmark Netherlands Serbia UK If you are from one of those countries we would be grateful if you would double check the information in the attached chart, and in the below narrative summary. If you are not from one of the above countries, we would be grateful if you would provide us with information about your country, especially if your country either: 1) Has a maximum penalty of ten years for disclosure to the public even of top secret information; 2) Recognizes in law or practice some sort of a public interest defence (and if yes, please describe) 3) Requires the prosecutor to establish that the disclosure actually caused harm to national security, or 4) Allows the fact that the disclosure did not cause harm to be considered as a mitigating factor concerning punishment. We seek the following information: 1. Country 2. May a person with authorized access be punished for disclosing info to the public? 3. What must the prosecution prove? 4. In particular, must the prosecution prove that the info was likely to cause harm? If yes, harm to what? 5. What are the penalties, including for disclosure of top secret information, to the public? (note that we are not interested in espionage or treason) 6. What are the available defenses? We of course will share with this list all the info sent by FOI Advocates as well as the results of any additional research. Here is our narrative summary. Corrections/additions most welcome! "All of the surveyed states proscribe criminal penalties for the disclosure of classified national security information. However, where there is no espionage or treason, the penalties are far less than in the US: up to two years in Denmark and Great Britain; three years in Slovenia; four years in Spain and Sweden; five years in Belgium, Germany, and Poland; and seven years in France. Moreover, prosecutions are rare. In seven countries-Albania, Belgium, Norway, Romania, Spain and Turkey- there has not been a single conviction in the past 10 years. In eleven countries, there have been just a handful of prosecutions, and even fewer convictions. Russia is the only country surveyed in which significant numbers of prosecutions have been conducted. In the past decade, 10 public servants were convicted and sentenced for terms ranging from 4 to 15 years for the public disclosure of information. The cases illustrate the serious consequences for individuals as well as the public's right to know of excessive prosecutions for public disclosure of classified information. Significantly, ten states-Albania, Czech Republic, Germany, Italy, Moldova, the Netherlands, Norway, Romania, Spain, and Sweden-require the government to prove either actual or probable harm resulting from the disclosure in order for any penalty to be imposed. An additional three countries-Hungary, Denmark, and France-allow the lack of harm to be raised as a defence or mitigating circumstance. Many thanks for your help - by May 27 please, and sooner if possible. Sandy
Penalties for unauthorized primary disclosures.xlsx
Description: Penalties for unauthorized primary disclosures.xlsx
