Tread with great care where official secrets are concerned

In recent weeks the Official Secrets Act (1989) has featured heavily in the news with a member of the Metropolitan Police staff being charged in connection with the disclosure of information to a reporter, and the jailing of a Cabinet Office communications officer and an MP’s researcher for leaking a memo detailing defence talks between George Bush and Tony Blair. The Act could also be used against journalists themselves.

The main purposes of the Act are, firstly, to prevent the disclosure of certain types of information by members of the security services, crown servants and Government contractors, and, secondly, to prevent further disclosure by the people to whom they gave that information.

The first point has been the subject of much attention recently but it is the second that can impact directly on a journalist, or anyone else for that matter.

Any person who gets information that is protected by the Act from certain sources commits an offence if they disclose it without lawful authority when they know, or would have reasonable cause to believe, that it is protected. The offence is punishable by a fine or up to two years in prison.

Sources included in the Act are

• Crown servants and government contractors where they disclose information without lawful authority or entrust it to someone and ask them to hold it in confidence

• Someone who has received it from one of those people.

There are six types of information protected by the Act: security, defence, international relations, crime, information on government interception of communications, and information given in confidence to other states or international organisations (a source in relation to this category can be anyone, not just the people referred to above).

Some (but not much) leeway is provided by the fact that, in relation to the first three types of information, an offence is not committed unless the disclosure can be shown to be ‘damaging’or made by someone who knew, or had reasonable cause to believe, that it would be damaging. This has to be proved by the prosecution only in relation to these types – it is assumed in relation to the others.

Exactly what is considered damaging varies according to the type of information disclosed although, importantly, the definition is expressed in very wide terms and extends to information ‘which is such that its unauthorised disclosure would be likely to’have any of the effects listed.

Tread carefully!

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