19791
COMMENTS – COMMENTAIRES
Freedom of Information and the Official Secrets Act
I.
Introduction
“open government”; “secrecy”
The operative notions in this field of inquiry are: “national se-
curity” –
“openness”. Clearly,
the very terms employed compel discussion of the need to accom-
modate the tension between opposites, as both are said to represent
important values in a modern democratic state.
–
Doern captures some of the flavour of the present national
dilemma:
Governmental secrecy in Canada is based largely on British parliamentary
practice: the common-law doctrine of crown privilege, the traditions of
ministerial responsibility and of an anonymous civil service, the principle
of the freedom of the press, the Canadian version of the British Official
Secrets Act, and a system of classification for government documents. The
prevailing view among scholars is that Canadian public bureaucracies are
excessively secretive and that Canada’s official information policies reflect
traditional concepts and a slavish adherence to bureaucratic secrecy.
Common-law traditions of crown privilege recognize the right of the crown
to refuse to disclose classified information where it is felt that disclosure
would be detrimental to the public interest. The concepts of ministerial
responsibility and civil service anonymity have, in part, contributed to
the general assumption that all documents are secret unless they are
specifically declared to be public. These concepts also mean that oppo-
sition -politicians are less able to question or criticize public servants
than iii other systems of government.1
Doern goes on to make the point that Canada’s secrecy legisla-
tion exerts a significant influence on administrative practices.
Because the legislation fails to distinguish periodic serious offences
from minor offences that are likely to result from the day-to-day
exercise of administrative discretion, there exists at present an
inappropriate balance between the public’s right to know and the
government’s preference for confidentiality.
The Official Secrets Act,3 though not the sole statutory guardian
of national security in Canada, is the most important one, and will
I Doern, “Canada” in Galnoor (ed.), Government Secrecy in Democracies
(1976), 143, 145-46. See also Rowat (ed.), Administrative Secrecy in Developed
Countries (1979), especially ch. 11.
2 Ibid.
8 R.S.C. 1970, c. 0-3, as am. by S.C. 1973-74, c. 50.
McGILL LAW JOURNAL
[Vol. 25
be the primary focus of this comment’ The present Canadian
Official Secrets Act does not enhance national security significantly
more than would other less Draconian alternatives, but the Act does
pose a substantial impediment to greater openness in government.
The 1939 Act5 was scarcely a uniquely Canadian product. In
essence, it was an amalgamation of the British Official Secrets Acts
of 1911 and 1920.” Two Canadian Royal Commissions have surveyed
the inadequacies of the legislation.7 Two British Government studies
have also criticized the parent British Act.8 Both governments have
recently issued Green Papers on the related issue of “open govern-
ment”.9
The Mackenzie Commission accurately described the Canadian
Official Secrets Act as “an unwieldy statute couched in very broad
and ambiguous language”,’0 and as possessing “unusual” and “ex-
traordinarily onerous” evidentiary and procedural provisions relat-
ing to espionage cases.1 The Act’s provisions include unjustifiably
broad police powers: arrest may be based upon “reasonable suspi-
cion” and searches may be conducted on this same loose ground. 2
4The Official Secrets Act is supplemented by the Criminal Code [R.S.C.
1970, c. C-34 as am.] provisions relating to treason, sedition, sabotage, breach
of trust by public officers and other related sections potentially affecting
national security. The provisions are listed in Government of Canada, Royal
Commission on Security Report (Abridged) (1969), 78 (hereinafter Mackenzie
Report).
5 The Official Secrets Act, S.C. 1939, c. 49.
6 Official Secrets Act, 1911, 1-2 Geo. V, c. 28 (U.K.); Official Secrets Act,
1920, 10-11 Geo. V, c. 75 (U.K.).
7See Mackenzie Report, supra, note 4; and Government of Canada, Report
of the Royal Commission to Investigate the Facts Relating to and the
Circumstances Surrounding the Communication, By Public Officials and Other
Persons in Positions of Trust of Secret and Confidential Information to
Agents of a Foreign Power (1946) (hereinafter Taschereau/Kellock Report).
8 Home Office, Report of the Departmental Committee on Section 2 of the
Official Secrets Act, 1911 Cmnd 5104 (1972) (hereinafter Franks Report); Home
Office, Report on Reform of Section 2 of the Official Secrets Act, 1911 Cmnd
7285 (1978) (hereinafter White Paper).
9See Legislation on Public Access to Government Documents (1977) (Otta-
wa, Green Paper); Open Government Cmnd 7520
(London, Green
Paper). See also the response of the Standing Joint Committee on Regulations
and Other Statutory Instruments in House of Commons, Votes and Pro-
ceedings (June 28, 1978), 916-25.
10 Supra, note 4, 75.
“1 Ibid., 76.
12 Arrest is governed by s. 10 of the Act, and search by s. 11. Note the higher
Criminal Code standard of “reasonable grounds”: R.S.C. 1970, c. C-34, ss.
443 and 455.
(1979)
1979]
COMMENTS – COMMENTAIRES
Any person in the vicinity of a designated place may lawfully be
searched.13 In contrast to the Crim’iinal Code provision, a senior
officer of the R.C.M.P. is authorized, in certain instances, to issue
warrants.14
Both the U.K. and the Canadian statutes are designed to cover spying
in its generally understood sense of obtaining information not other-
wise in the public domain in order to make it available to a foreign
government or agent. Perhaps. more important, section 2 of the British
Act and section 4 of the Canadian Act embrace in intent almost any form
of information obtained in the course of service or contract of em-
ployment, or otherwise, and then passed on without authority to any
other person whatever his status and whatever the purposes of the
transfer of information may be, however unclassified the information
may be, if obtained from sources available because of holding a govern-
ment position or having a government contract. 15
The statutes have been criticized for effecjing a deliberate shift
of the onus of proof to the accused when a cerfain limited case
on the facts has been made out by the Crown, and for granting a
broad power to the court to order the public excluded from the
trial.'” Section 3(2) of the Canadian Act, which allows a defendant’s
purpose in revealing information to be implied from his conduct
or known character, is particularly prejudicial: any evidence of
communication or attempted communication with a foreign agent is
prima facie evidence of “purpose”.
It is impossible to view the Act other than as a needlessly tough,
authoritarian instrument –
one which in its search for violation
roams far beyond the usual (and, for the most part, adequate)
criminal law evidentiary and -procedural strictures. Even as awesome
a concept as “national security” seems not to require the type of
blanket excesses which prevail in the Act.
II. The civil servant conundrum
In Canada, despite the government’s imposition of voluntary
guidelines upon itself in 1973,17 the rule concerning administrative
openness ensures that all administrative information is secret unless
and until the government, at its discretion, chooses to release it.
13 Official Secrets Act, s. 11(1).
14Offici’al Secrets Act, s. 11(2). Criminal Code s. 455.3 provides for the
issuance of warrants by a judge or justice of the peace.
‘6 M. Cohen, “Secrecy in Law and Policy: The Canadian Experience and
International Relations” in Franck & Weisband (eds.), Secrecy and Foreign
Policy (1974), 355, 357. See in this regard Official Secrets Act, s. 3(2) and (3).
16 Ibid. Note that the public may not be excluded from the sentencing.
“7 See (1973) 17 H.C. Deb. 2288.
McGILL LAW JOURNA,
[Vol. 25
It has been said that “[i]n Canada, there is no legal right to know…
[n]or is there a legal duty on the government to inform. On the
contrary secrecy is sanctified by the Official Secrets Act and the
civil servant’s Oath of Office and- Secrecy”.”8 To this, one should
add that the inherited tradition of “civil service anonymity” causes
matters to become even more clandestine, and secrecy even more
exaggerated. This tendency culminates in section 4 of the Act, the
so-called “leakage” provision.
The section embraces far more than mere “communication” of
secret information. It makes recipients of official information (most
notably the press, but potentially any civil servant) guilty of an
offence under the Act.2 0 Liability is also imposed for unlawful
retention of documents and for failure to take reasonable care of
retained documents. 21
The Franks Committee criticized the “catch-all quality” of the
equivalent English provision:
[The section] catches all official documents and information. It makes
no distinctions of kind, and no distinctions of degree. All information
which a Crown servant learns in the course of his duty is “official” …
whatever its nature, whatever its importance, whatever its original source.
A blanket is thrown over everything; nothing escapes. The section catches
all Crown servants as well as all official information.22
The breadth of the section, and the fact that in Canada there is no
official, legally based system of “classification of documents” by
which the secret or non-secret status of a given document can be
accurately ascertained, has promoted a climate described by the
Franks Committee as a “general aura of secrecy”m with the natural
corollary of “an inhibiting effect on openness in government”.24
Reform of the secrecy legislation is thus a “necessary preliminary
to greater openness in government”. 5
The section’s breadth makes it impossible for the ordinary
public servant to comply with its precepts. As a matter of daily
IsTurner, “Freedom of Information”, unofficial transcript of speech de-
livered at the Canadian Bar Association Annual Meeting, Winnipeg, Manitoba,
August 30, 1976, 2.
19 See Rowat, supra, note 1, 279-80.
20 0fficial Secrets Act, s. 4(3). Note that liability is to be presumed unless the
accused proves that the communication to him of the information was con-
trary to his desire.
21 Official Secrets Act, s. 4(4)(a).
22 Franks Report, supra, note 8, 14.
2Ibid., 18.
24 Ibid., 19.
2 5,Ibid.
19791
COMMENTS – COMMENTAIRES
routine, the public servant will receive and communicate information
in technical violation of the Act. Many individuals quite simply are
not authorized by the terms of the Act to communicate and receive
the information that the responsibilities of their employment man-
date them to receive and communicate. Discretion in the charging
process, coupled with a “doctrine of implied authorization”, prevents
the system from collapsing upon itself.
The operation of the Act was recently scrutinized in the Treu
case.2 6 Peter Treu, though not strictly a civil servant, was ensnared
by this “civil servant conundrum” and was prosecuted for violations
under section 4 of the Act. It was alleged that Treu, in the course of
carrying out Government/NATO contracts concerning secret air
communications systems, unlawfully retained classified documents
and failed to take reasonable care of them. A completely in camera
trial commenced four years after search warrants had been execut-
ed at Treu’s home. He was convicted on both counts and was
sentenced to imprisonment for two years on the major count of
retention, and to a concurrent term of one year on the lesser count
of failure to take reasonable care. Both convictions were reversed
on appeal.
Treu’s appeals succeeded because the Court found that a reason-
able doubt existed on the whole of the evidence. Essentially, this
finding implied acceptance of Treu’s claim that he, in good faith,
believed himself to be properly cleared for the possession and use
of the secret documents. A reading of the appeal judgment reveals
that Treu was a victim of the ambiguity of the “classification”
system and the security procedures affecting the sensitive docu-
ments to which he had access. Treu had been prudent enough to
read the security manuals governing his work and had been cleared
by a designated security officer to handle most of the documents in
his possession; still, he ran afoul of the Act.
The Treu case demonstrates that the breadth and ambiguity of
the Official Secrets Act, features which in theory are said to promote
ease of prosecution, do not necessarily enhance the cause of national
security. Presumably, greater precision in draftsmanship and im-
proved clarity, especially with respect to the definition of the types
of information (that is, the classifications) which must be kept
secret, would promote both national security and greater openness
26 Treu v. The Queen, unreported judgment, Que. CA., Feb. 20, 1979 per
Pard J.A.
27Treu was an engineer under personal contract with the government.
McGILL LAW JOURNAL
[Vol, 25
in government. However, it should not be thought that the mere
passage of freedom of infornation legislation will necessarily pro-
mote greater openness in government. The real issue is how effective
the government wants its proposed legislation to be. Nader has
cautioned:
No government really wants effective information legislation. Secrecy
is too long an established tradition and too convenient a mode of operation
to be voluntarily discardedZ9
In this regard, it should be noted that the voluntary guidelines by
which the government agreed to disclose information to members of
Parliamentn contained sixteen exemptions, several of them extre-
mely broad3 The Federal Court Act3’ clarifies and limits the extent
of Crown privilege (the discretion to refuse a request for the pro-
duction of documents in open court); however, if a Minister cer-
tifies to the court that the production of a document “would be
injurious to international relations, national defence or security,
or to federal-provincial relations, or that it would disolose a con-
fidence of the Queen’s Privy Council for Canada, discovery and
production shall be refused without any examination of the docu-
ment by the court” 2
According to Nader, “[t]he single most important ‘citizen right
conferred by the Act is the right of judicial review of agency de-
cisions to withhold information, with the burden of proof on the
agency and the standard of review de novo”.’ Former Justice Minis-
ter John Turner, in endorsing this approach, declared that, even in
matters involving national security,z the judiciary should be the
final arbiter
a marked contrast to the approach which he
,advocated in 1970.35a
–
28 Nader, “Freedom of information”, unofficial transcript of speech de-
livered to the Canadian Bar Association Annual Meeting, Winnipeg, Manitoba,
August 30, 1976, 7.
29Supra, note 17.
30The sixteen categories are listed in Rowat, supra, note 1, 287.
31 R.S.C. 1970, 2d Supp., c. 10, s. 41(1).
32Ibid., s. 41(2).
33Supra, note 28, 8.
34 Supra, note 18, 13-14. He defines “national security” in terms of informa-
tion which could “jeopardize the safety or security of the state and its
relations with foreign countries”, “military and tactical secrets which could
endanger defence or national security”, and “negotiations leading up to
agreements with foreign countries”. The term, in his view, “ought to be strictly
construed”. He does not, in this context, “equate the economic well-being of
the State with national security”.
35 Ibid., 19. Review of such matters would take place in camera.
35a Ibid., 18-19.
19791
COMMENTS – COMMENTAIRES
This -argument is not posited upon access to information as a
total and unqualified right. Clearly, there are legitimate limits to
openness. These limits can in large measure be ascertained through
the formulation of a precise and adequate -definition of “national
security” or other similar term;3 6 once the definitional obstacle has
been overcome, a safeguard may be provided by granting to our
courts (or to some other independent body) a supervisory juris-
diction in this area.
Strictly speaking, questions of open government do not depend
upon a consideration of national security; information truly relating
to national security is not a matter -for public consumption. National
security information requires protection (through the imposition
of criminal sanctions) from unauthorized disclosure.87 Nevertheless,
official secrets legislation has, in the eyes of the Franks Committee,
fostered a general aura of secrecy in government and thus. the
relationship between national security and open government be-
comes apparent.38 Reform of secrecy legislation is a necessary pre-
liminary to greater openness in government.
III. The Toronto Stm affair: National Security v. Press Freedom
The Toronto Sun prosecution 9 places the national security/open
the
government debate into high relief. All the participants –
Crown, the accused, and third parties such as M.P. Tom Cossitt –
were concerned about the state of Canada’s national security. Spe-
cifically, they shared a fear of what was perceived by Cossitt and the
Sun to be excessive official toleration of known Soviet espionage
activities in Canada. This matter first came to public prominence
when Cossitt revealed secret government information, relating to
suspected Soviet intelligence officers and diplomatic establishments
in Canada, on the floor of the House of Commons. Cossitt subse-
in press interviews conducted
quently repeated his disclosures
outside the House Chambers. By any standard, the information
revealed was once “secret” and bore directly upon the national
security. Before publication in the Sun, the material in question
had been distributed internally via sixty-seven inter-departmental
copies, and the C.T.V. television network had utilized the information
36 The present language of the Official Secrets Act, s. 3 refers to actions
which are “for any purpose prejudicial to the safety or interests of the State”.
37 White Paper, supra, note 8, 42-44, 73-74.
38 Franks Report, supra, note 8, 18.
39 R. v. Toronto Sun, unreported judgment, Ont. Prov. Ct, Apr. 23, 1979
per Waisberg Prov. Ct J.
McGILL LAW JOURNAL
[Vol. 25
in its television report “Inquiry”. The case raised the interesting
questions of what constitutes “secret information” under the Official
Secrets Act and whether “secret information” can lose the quality
of secrecy through dissemination. The Mackenzie Report contains
these relevant observations:
[Miust the Crown prove in all cases that the information concerned is
secret and official? If so, an espionage operation directed towards the
collection of information in the public domain, or within the possession
of a government agency but not classified (such as much information
in government files) might not constitute an offence under the Act.40
In R. v. Boyer,41 Marchand J. expressed the view that the Official
Secrets Act by its very title did not apply to what had already been
published or publicized or had fallen into the public domain. 2 This
view prevailed at the Sun preliminary inquiry (where the documents
were termed “shop-worn ‘ 4 3) and resulted in the discharge of all
accused on counts of communicating secret information to the
public44 and receiving secret information.45 Waisberg Prov. Ct J.
attacked the Act as ambiguous and unwieldy and called for its
complete redrafting. 6 He observed that
what is designated “secret” … cannot be determined to be secret by
the mere stamp itself. Secrecy must lie in the very nature of the document
itself and in the existing circumstances surrounding and affecting the
document … [Here] the evidence is that the document was no longer,
if ever, secret.47
The prosecution of the Sun raises deeper and more disturbing
issues relating to the exercise of prosecutorial discretion in matters
affecting national security. At first glance, the discretion to proceed
with the laying of charges, or to refrain from proceeding, may not
seem to relate to the issue of open government. Closer analysis
reveals an intimate connection. “Open government”, in the last
analysis, is not a legislative –
creature. Rather,
it is an atmosphere or an environment, within which governments
and citizens may, if they are fortunate, operate. Turner had this
to say:
or legislated –
In the ultimate, [sic] … no matter what a statute might say, or the
courts may do, access to information will depend on the good faith of
4o Supra, note 4, 75.
41 (1946) 94 C.C.C. 195 (Que. C.A.).
42 Ibid., 244.
43Supra, note 39, 23.
44 In alleged contravention of Official Secrets Act, s. 4(1) (a).
45 In alleged contravention of Official Secrets Act, s. 4(3).
46 Supra, note 39, 22.
47 Ibid., 20-21.
1979]
COMMENTS – COMMENTAIRES
those in government. There will always remain the conundrum that the
public will never fully know what and how much information exists.
There will always be the force of government to protect its sources and
its documents. Governments can, always muster arguments against
disclosure. 48
Good faith, rectitude, and fidelity to duty are essential attributes
of open government. These features are crucial to the prosecutorial
function wherever the national interest is involved. The integrity
of the state is bound up in the prosecution of those who allegedly
imperil its well-being. If the public is left with the impression that
partisan politics, rather than more appropriate considerations, has
guided the prosecutor’s hand, the state may well have induced “a
general disillusionment with democratic government and the rapid
erosion of public confidence in the administration of criminal
justice”. 9 Edwards, in a brilliant essay on the integrity of criminal
prosecutions, quotes former British Prime Minister Harold Mac-
Millan to this effect:
It is an established principle of government in this country, and a tradition
long supported by all political parties, that the decision as to whether
any citizen should be prosecuted or whether any prosecution should be
discontinued, should be a matter, where a public as opposed to a private
prosecution is concerned, for the prosecuting authorities to decide on the
merits of the case without political or other pressure. It would be a most
dangerous deviation from this sound principle if a prosecution were to
be instituted as a result of political pressure or popular clamour.8 0
In the area of discretion to prosecute, the Attorney General is
accorded by Anglo-Canadian constitutional theory complete au-
tonomy and independence, even from his own party, his own
cabinet, his own prime minister8 1
4 8 Supra, note 18, 23.
49 Edwards, “The Integrity of Criminal Prosecutions – Watergate Echoes
beyond the Shores of the United States” in Glazebrook (ed.), Reshaping the
Criminal Law (1978), 364, 380.
50 Ibid., 373.
51 See in support of this contention Edwards’s seminal work, The Law
Officers of the Crown (1964). See also, supra, note 49, 373 et seq. Note, how-
ever, that the independence of the Attorney General is not immune from
challenge, as he is answerable before the High Court of Parliament: R. v.
Allen (1862) 9 Cox C.C. 120, 122 (Q.B.) per Cockburn CJ. In this regard see
S. Cohen, Due Process of Law (1977), 131 et seq. Note also the recent set-
backs suffered by the proponents of the doctrine of abuse of process (a pro-
cedure whereby the judiciary was called upon to assume supervisory control
over alleged prosecutorial misconduct): Rourke v. The Queen (1977)
33
C.R.N.S. 268 (S.C.C.); Gouriet v. Union of Post Office Workers [1977] 1 All
E.R. 696 (CA.); and see the discussion of the doctrine by Edwards, supra,
note 49, 381-88.
McGILL LAW JOURNAL
[Vol. 25
Anything savouring of personal advancement, protection or sympathy
felt by an Attorney General towards a political colleague, or supporter,
or which relates to the political fortunes of his party and the government
in power cannot be countenanced if adherence to the principles of im-
partiality and integrity are to be publicly manifested. 52
The then incumbent Minister of Justice/Attorney General claim-
ed to be guided by these principles in reaching his decision not to
prosecute Cossitt, and in authorizing, for the first time, the use of
section 4(3) of the Official Secrets Act –
the recipient of informa-
in the prosecution of a Canadian newspaperY3 In
tion section –
the course of justifying his decision, Mr Basford proclaimed the
independence and integrity of his office. At the same time, he
acknowledged, quite correctly, that he had exercised his right to
seek information and advice from others (including the Solicitor
General and the Commissioner of the R.C.M.P.) before embarking
upon his cou’rse of action. However, subsequent to this statement,
an investigative reporter insisted that the Minister of Justice had
not been in favour of the charges, but had sided with the R.C.M.P.
Commissioner who felt that no charges should be laid against the Sun
since Cossitt and the C.T.V. network were not to be charged.64
Either, or perhaps neither, of these two versions of history may be
true. Ordinarily, one would presume in favour of the Chief Law
Officer of the Crown, but as Professor Edwards amply demonstra-
tes, 55 these are hardly ordinary times, and the Watergate echoes are
heard far beyond the -shores of the United States.
IV. Can freedom of information and official secrecy co-exist?
Scholars have been saying for some time that Canada is ready
for a modernization of its general approach toward official secrets
and freedom of access to information. 0 Government spokesmen for
almost as long have been proclaiming the pending appearance of
significant new freedom of information legislation to remedy these
present ills.5’ However, is a freedom of information statute the
total, or only, solution? In terms of strict theory, freedom of in-
52 Edwards, supra, note 49, 375.
53 See
(1978)
121 H.C. Deb. 3881-83 for the full text of the Minister’s
remarks in this regard.
54See “Trudeau Gave the Final Order”, Press Review, April 1978, 5. This
article was written by Robert MacDonald, a Sun employee. He does not
name his sources.
55 Supra, note 49.
56 See, e.g., M. Cohen, supra, note 15, 374.
57 See Rowat, supra, note 1, 279, 306.
19791
COMMENTS – COMMENTAIRES
formation laws are decidedly different from those governing official
secrecy. It is possible to conceive of a marriage between the two
concepts, but one must remember the different ends which each
seeks to serve. Freedom of information laws seek to regulate public
access to government information which is not to be kept secret.
On the other hand, official secrecy legislation concerns the protec-
tion of secret government information from unauthorized disclosure.
Both systems, in order to be credible and effective, require a viable
system of document classification. As previously mentioned, the
classification’s adequacy is a central area of concern. Who de-
termines the classification of material? Can a classification be
challenged? If so, where shall the power ultimately lie – with the
executive, or with a supervisory authority? If a single statute
approach is adopted, where will the emphasis lie? Will the governing
assumption be that all information must be disclosed save that
which’is specifically exempted, as is the case under the U.S. Freedom
of Information Act?58 Or is everything to be presumed to be secret
save that which is specifically to be disclosed, as is presently the
case in Canada in the absence of a precise statutory classification
regime? 59
Maxwell Cohen proposed a single statute incorporating liberal
access to government information with provisions concerning offi-
cial secrets. 0 He acknowledged that such a statute must address
the difficult problems of establishing classifications and creating
a credible review mechanism
to oversee the adequacy of the
determination of administrative classifications:
after a period of years –
A single statute thus could incorporate (1) the right to information that
it is not necessary to keep secret, and –
virtually all information; (2) the criminal law prohibitions on disclosure
of information that it is necessary to keep secret;
(3) a classification
system to distinguish between what must, and what need not, be kept
secret; and (4) an independent body to review the way this distinction is
applied in practice: This proposal has the virtue of combining com-
plementary ideas within a single legislative project. It would also have
to reconcile clearly antagonistic positions, and would moreover require
considerable skill in draftsmanship to incorporate statements that libera-
lize the disclosure of information with the subsequent sections dealing
N6 Freedom of Information Act, 5 U.S.C. 552 (1970), as am. by Pub. L. 93-
502, 88 Stat. 1561 (1974). For a competent survey of the U.S. Act and its treat-
ment, see Singer, “United States” in Rowat, supra, note 1, 309.
59The situation in England may also be characterized in this fashion. See
generally Williams, Not in the Public Interest. The Problem of Security in
Democracy (1965).
1o Cohen, supra, note 15, 375.
McGILL LAW JOURNAL
[Vol. 25
[
with prohibitions on communication and disclosure. The virtues out-
weigh the difficulties. In a single statute the public, the bureaucracy,
and the courts could all see more readily the balancing of interests: the
liberalizing provisions regarding access, and the restrictive rules for the
protection of confidentiality. 61
It should not be assumed that the United States, which has the
most progressive and highly developed freedom of information
legislation in the world, has opted for a single statute approach.
Significant machinery for dealing with secrecy issues, such as
leakage and publication, exists under certain espionage statutes.G
The U.S. Supreme Court’s decision in the Pentagon Papers case93
raised, for the first time, the spectre of successful criminal pro-
secution of those who publish defence information.
Whatever statutory framework is chosen, there is certainly no
dearth of sources to consult for guidance. As a recent Law Reform
Commission study paper points out,
… find ample guidance in the U.S. legislation, the private
[one can]
member’s bill introduced in the House of Commons, the Proceedings of
the Statutory Instruments Committee, the Australian proposals and in
numerous other documents.64
The challenge lies in producing credible, balanced legislation.
Half measures could be worse than no legislation whatsoever; it is
“much more difficult to correct faulty legislation than to write it
correctly in the first place”.65 It must be recognized that our present
vague and imprecise statutes seriously fetter our ability to become
informed about vitally important matters where the larger public
interest does not mandate impenetrable secrecy.
Stanley A. Cohen*
61 Ibid.
-2 See Edgar & Schmidt, The Espionage Statutes and Publication of Defense
Information (1973) 73 Colum. L. Rev. 929, and Schmidt, “The American
Espionage Statutes and Publication of Defense Information” in Franck &
Weisband, supra, note 15, 179.
63 New York Times Co. v. United States 403 U.S. 713 (1971). See the com-
mentary on this case by Schmidt, supra, note 62, 180-83, and Boudin, “The
Ellsberg Case: Citizen Disclosure” in Franck & Weisband, supra, note 15, 291.
14 Law Reform Commission of Canada, Access to Information: Independent
Administrative Agencies (1979), 67. See n. 108 of the study for an enumeration
of some of these sources.
65Nader, supra, note 28, 8.
* Faculty of Law, McGill University. This comment is a revised version of
a speech prepared for the Annual Symposium of Osgoode Hall Law School,
York University, Toronto, Ontario, September 27-28, 1979.
