Thursday, January 18, 2018

‘Public interest trumps confidentiality’

...says Daly on publication of documents in media


urges caution: Martin Daly

Mark Fraser

The public interest in key operations of the State may trump confidentiality when it comes to the publication of an allegedly confidential document in Parliament or by the media.

This is the view of former Law Association president Martin Daly SC.

Daly was asked for a comment by the Express on the current controversy, arising out the leak of the report of the Police Complaints Au­tho­rity (PCA) and the report of the Police Service on the Flying Squad.

The reports were leaked to Opposition Senator Faris Al-Rawi and Express investigative reporter Anika Gumbs. Attorney General Anand Ramlogan has described the leak of this “confidential” information as “tantamount to treason and a subversion of the State”.

Daly emphasised he had not seen the document said to be emanating from the Police Complaints Authority “so I cannot apply my views to it. My views are provisional”.

He said even without an express provision for confidentiality, a document might nevertheless be confidential “if it is issued in circum­-

stances which when viewed objectively, create an expectation of confidence or con­fidentiality, e.g., the official communications between the President and the Prime Minister”, or attorney-client and doctor-patient communications.

“In matters of national security, confidentiality may be more readily inferred. However, the public interest in key operations of the State may trump confidentiality when it comes to the publication of an allegedly confidential document in Parliament or the media,” he said.

Daly said notwithstanding the fact it had the pow­er to disseminate infor-

mation and had made “lau­dable attempts” to keep the public informed, the PCA was constrained by the PCA Act in what information it can release.

He said a careful review of the PCA Act suggested “caution is required because the bodies or offices to which it (the PCA) may furnish reports are specified and limited in number and there is a general provision in wide terms, stating “information and evidence obtained by the authority in the performance of its function is confidential”.

He stressed however that “by contrast, the release from confidentiality contained in the act begs the question whether in reporting to the public on matters before it, the authority is free from the confidentiality provisions contained in the act”.

Meanwhile, Minister of National Security Gary Griffith said yesterday he was streamlining the country’s confidentiality systems where documents would be classified according to the level of confidentiality and the group of per­sons with access would correspond to this classification.

He said the four categories for classification of documents would be restricted, confidential, secret and top secret. He said documents were not so classified since the Ministry of National Security, which “quite comically”, only had two stamps—confidential and top secret”. “The document may have fallen under the category of restric­ted or confidential”, Griffith stated.

He said the classification of documents would ensure only persons who have authorisation for that classification have access to the document, with a restricted document being accessible to the higher number of persons while a “top secret” being accessible to the smallest number of persons.

“This system would ensure that only those persons on a need-to-know basis have access to information and not a despatch clerk or who­ever. Also, by doing this, you are able to streamline and pinpoint individuals if there is a breach in confidentiality. What we would also need to do is look at a system to have persons face the consequences and have disciplinary action taken when people breach the confidentiality,” Griffith said.

Griffith said he gathered the information in the PCA and police reports did not constitute any national security threat.

“It may not be a matter that affects the nation’s security,” he said.

However he said he was concerned with how the reports were leaked.

“Because the person who has access to such confidential information and breach confidentiality...could very well do it in a situation that involves life or death, or a situation which could seriously damage the country’s security.

“Suppose it was a secret document involving rogue police officers and they had the names of the persons actually reporting the police officers. That could put persons lives at risk.” he said.

Griffith denied the focus on confidentiality was a ruse to distract the country from the contents of the reports.

He said it was the PCA which raised the issue of the leak, saying it was concerned about the “sensitive information” by Faris Al-Rawi when he referred to the report in the Senate.

“The Government only came in after the fact,” the National Security Minister stated.

Asked whether “sensitive information” was confidential, Senior Counsel Dana Seetahal said “not neces­sarily”.

She added: “It would all depend on the context. Confidentiality is considered in the realm of being kept private. Sensitive (according to the dictionary) is more things that can offend or upset or it is restricted disclosure.... Sensitive information about someone’s mental status might not necessarily be is sensitive because it could affect the person’s well being and perception of people, but it might be required to be disclosed for other reasons.”

On the issue of what was confidential, Seetahal said certain things were described in specific legislation and case law which were deemed confidential.

She cited attorney-and-client pri­vilege, doctor-patient privilege and public-interest immunity (national security interests), the latter carrying the highest level of confidentiality.