Right to Information and State Secrecy: A Balancing Approach in Democracies

Introduction

The term "Right to Information" (RTI) means the ability of individuals to access information. The word "Information" traces its roots in the Latin expressions "Formation" and "Forma", that respectively signify shaping something and forming a pattern. In the context of RTI, the term specifically refers to information held by the government. This information is a collective representation of facts about the people and the country, making it the property of both the government and the citizens (Pakistan Information Commission, n.d.). The RTI is a crucial aspect of democracy, allowing citizens to form public opinions and make rational decisions about their future (UNESCO, n.d.). Well-informed citizenry can make better choices in various situations including elections and public policy decisions. The lack of transparency and denial of information to public can lead to destruction of democratic norms as Judge Damon Keith said that democracies die behind the closed doors (Detroit Free Press v. Ashcroft, 2002). Without access to information, democratic systems would hinder the electorate's ability to assess their representatives rationally (Peled & Rabin, 2011). Therefore, RTI is vital as an essential pillar of democracy (Province of Punjab v. Iqbal & others, 2018). RTI is enshrined in the constitutions of numerous world democracies and backed by international institutions (McDonagh, 2013). It holds immense power, as Justice Louis Brandeis has likened it to sunlight, stating that "sunlight is the best disinfectant" (Brandeis, 1914). It serves as a cornerstone of good governance, empowering citizens to curb corruption within state machinery. As an inherent right of every citizen, it also safeguards other rights and acts as a bulwark counter to the misuse and abuse of authority (Banisar, 2006).

Undoubtedly RTI is valuable, but permitting infeasible and irrelevant access to information can lead to adverse consequences on its functionality (Bose, 2021). Therefore, this right is subject to certain limitations. As this right cannot be limited to a deterrent formula and is complex in its scope, its powers must be regulated to strike a balance with other rights (B&B Associates, 2018). Thus, the RTI legislation is designed to bolster transparency and accountability within a democratic system (Sanjoy Narayan editor in chief Hindutan & other v Hon High Court of Allahabad, 2011). By providing a practical framework, the legislation allows citizens to access public information, while taking into account diverse interests such as efficient governance, fiscal operations, and safeguarding sensitive data. As a result, the RTI legislation contributes to a more participatory and balanced democratic system (Access to Information Programme, 2012).

On the other hand, state secrecy encompasses information and documents whose disclosure would jeopardize national unity, rule, constitutional order, inner and exterior security, and global relations. In a modern democratic state, though there is an obligation to grant access to information held by state agencies but it is subject to state secrets (Kaya, 2006). This secrecy assists to safeguard the government, society, and individuals. Every state possesses such secrets in various forms (Lefebvre, 2021). Secrecy is crucial for intelligence agencies, safeguarding sources, and supporting their work. It offers significant benefits including rationalizing policies and attains stability. Hiding certain information enhances statecraft by promoting candid advice among policymakers and their advisors. Policymakers are more open to the truth without fear of political repercussions (Rovner, 2020). In the functioning of democratic government, unconditional publicity is not a prerequisite for democratic accountability. In certain instances, secrecy is justified and even beneficial within a democracy (Morgan, 2018). However, such secrecy must be carefully specified, ensuring it remains subject to democratic accountability (Thompson, 1999).

Nevertheless, the practical realization of RTI is not without challenges. Executive actions often prioritize state secrecy, and instances of information withholding emerge, potentially hindering the efficacy of the right. While secrecy is undeniably essential for state functioning, it must coexist harmoniously with RTI to strike a delicate balance (Tomar, 2023). State secrecy plays a crucial role in national security, but it can also be misused to hide misconduct. The public functionaries might misuse secrecy, harming democratic norms and policies, transparency is not always flawless, nor secrecy inherently harmful. Ensuring responsible use of this power becomes a challenge (Sagar, 2016). There is a need to balance the confidentiality and the citizens' entitlement to pertinent information for effective democratic participation. Opposing to common perception, the RTI and state secrecy are not inherently contradictory (Mokrosinska, 2018). Rather, they are interdependent basics that form the foundation of a well-functioning democracy. It is imperative to find a judicious resolution to this apparent conflict for safeguarding democratic principles even though maintaining state security (Relyea, 1980).

This article explores the apparent conflict between the state secrecy and RTI. The analysis of legal frameworks and case studies from different democratic jurisdictions allows this article to apply the doctrine of proportionality to strike balance between RTI and state secrecy. In addition, the article aims to provide insights and recommendations to assist public functionaries in balancing between these rights and ensuring their coexistence. It would strengthen the democracy norms and enhanced public trust in governmental institutions. The article comprises of six parts. The first segment introduces the area of the research and sets the scheme of the article. Second part of the article explores the concept of RTI and state secrecy and their significance in the contemporary scholarship. The third and the fourth section explore the conflict between secrecy and transparency in administration and highlight the implication of the doctrine of proportionality in the context of RTI and state secrecy. The fifth portion aims to strike balance between the both concepts by applying the public interest and proportionality tests. Final division concludes the whole discussion and emphasis the need for the use of responsible discretion by public functionaries.

The Concept of Right to Information and State Secrecy

The RTI empowers citizens of a state to examine activities of the public functionaries and allows them to make informed decisions concerning government policies. However, RTI faces numerous challenges including legal barriers, bureaucratic resistance and lack of awareness. One such challenge is the privacy and security concerns of the state. The inherent conflict between the RTI and state secrecy may cause delay or denial of information rights of a citizen. Prior to any discussion on their nexus and conflicting nature it is pertinent to explore both concepts.

Right to Information and its Importance

The importance of the RTI lies in its character as an instrument to safeguard transparency, public participation, and accountability in discussions about good governance (Jain, 2012). It advocates for public access to crucial government data, fostering transparency and enables citizens to scrutinize government actions, ensuring accountability. The RTI serves the impression that society is assisted by their legislatures, not ruled by them (Sharma, 2021). It has now been extensively recognized as a fundamental right, crucial in a republic where citizens must be well-informed to make informed choices during elections, making it vital for democracy (Roy, 2018). The RTI is not only vital for revealing inefficiencies and corruption but also for ensuring effective public accountability and good governance (Transparency International, 2006). It serves as a powerful means to empower citizens with essential information and to grasp those in power answerable for their activities. Without the right to information, citizens would lack the means to access critical data about their government and would be unable to actively engage in the policymaking development (Ghosh, 2018).

Information is a crucial first step in exercising political and economic power. The battle over who has access to information is a significant struggle today. The debate revolves around "transparency" then "the right to know" as against "privacy" then "national security." Citizens worldwide increasingly reject secretive decision-making and demand greater transparency to combat corruption. Advocates of disclosure argue that transparency is not just about cleaning up governments, it is essential for effective public policies as well. As democratic norms spread globally, broad access to information becomes fundamental for a functioning democratic society (Shamshad, 2009). In representative democracies, informed consent relies on disclosing information regarding administration practices and strategies, which should belong to the public, not the administration (Florini, 2007). Access to information plays a vital part in fostering a well-informed public and laying the groundwork for increased individual and group involvement in governance. With the expansion of governmental power, there's an increased need for safeguards against misuse. It is under the light of transparency that good thrives and no evil can persist. Secrecy, on the other hand, fosters an environment where those in power could potentially abuse it.

Therefore, enhancing democracy requires ensuring informed participation from citizens in governmental processes, making it representative of their interests (Birkinshaw, 2010). The authors argue that countries with effective FOI laws experience lower poverty and underdevelopment. These countries have stronger democratic governance systems (Muyot, 1998) and better protection of human rights. In contrast, nations without successful FOI implementations face developmental challenges and struggle to uphold true democracy and protect human rights (Abdulai, 2022). The RTI is crucial as a tool for achieving various objectives. It enhances oversight functions, combats corruption, and promotes transparency. Countries with extensive access to information tend to have better press freedom, transparent public expenditure, and strong integrity standards for public officials. The Right to Information strengthens democratic practices and upholds the rule of law (Blanke, 2018).

State Secrecy and its Justifications

Despite efforts to promote political transparency, democratic states hold back information from people, including military based programmes, consular discretion, party-political negotiations, and administrative opaqueness. Andrew Murray, a legal scholar, presents an intriguing cover of the state's right to limit the RTI. He aims to strengthen the limited democratic right on the state's authority to hold back information. Murray's cover introduces a significant shift by proposing the right to privacy of state as the conceptual framework instead of secrecy or confidentiality (Murray, 2011). Likewise, according to Westin, states can shield specific financial, police based, international relations based, and defence based policies from citizens and the media, as they have a right to privacy (Reynolds, 1969). A distinct democratic defense of secrecy in authority is that the country's use of confidentiality is intrinsic to the authority wielded by democratic countries (Mokrosinska, 2020).

It is basically the privilege of state to retain its secrets, claimed by the administration, to resist the revelation of information. This resistance is based on the reasonable threat that such revelation would damage the national security of the country (Garvey & Liu, 2011). Furthermore, secrecy is seen as essential to safeguard information from enemies. Within the government, confidentiality serves various purposes, such as military secrecy during war and restricted diplomatic communications. Many consider confidentiality and privilege crucial for effective working relationships, including those within the government. Some believe that making all communications public would render government operations impossible (Kostal, 2021). From an ethical standpoint, for secrets to be seen as acceptable, citizens must trust the authorities who keep information confidential. Having oversight systems in place is essential to prevent misuse of this power by executive actors. Nevertheless, in a democratic system, there are instances where it may be necessary to prioritize secrecy over transparency in the interest of effective governance (Ansell & Torfing, 2016). Moreover, secrecy can also be warranted to make policies more effective. For example, it helps in anticipating or deceiving potential enemies and suppressing enemy competences in the arena of security matters (Colaresi, 2014).

The Conflict between RTI and State Secrecy

The growing interest of authorities in surreptitious government operations and secrecy arises from technological, social, and political changes that reduce privacy while increasing political secrecy. As a result, the tensions amongst democratic answerability, with its transparency requirements, and secrecy have escalated and gained political significance (Rittberger & Goetz, 2018). However, democracies face the challenge of making political decisions both effective and transparent. And secrecy can be legitimately acceptable if it is democratically authorized. Public officials bear the responsibility to create suitable establishments and measures to certify that provisional secrets do not become perpetual (Thompson, 1999). Nowadays, the Executive Branch has sometimes disregarded laws that limit its actions in the best interests of national security. One of the doctrines contributing to this is the privilege claim by the state to retain its secrets, which has limited the possibilities for parties to seek remedies when claiming official misconduct in national security cases (Dakich, 2022).

The Constitution's requirements for government openness and public access to information are not entirely settled in law. Some theorists argue that freedom of information laws primarily serve to check government abuse and misconduct. Secrecy can facilitate wrongdoing, while unlawful conduct seeks secrecy to escape accountability and public scrutiny. Moreover, unlawful secrets weaken democratic accountability in specific ways: when public is denied access to such secrets, they cannot hold the administration accountable for evident misconduct or to ensure compliance with laws. Here the term "illegal secret" includes various state secrets that raise concerns about government illegality (Condon, 2013). Today, in every government, the RTI is fundamental, but there are provisions on secrecy that restrict RTI for official documents (Parry, 1954).

RTI laws have been achieved through a long-term struggle, mandating executive agencies to respond to information requests, while also granting the agencies the right to withhold certain details that may pose risks to national security or privacy. However, for the general public, making a request under the RTI Act can often be a challenging battle due to bureaucratic shenanigans and a culture of secrecy (Schewe, 2017). Getting information can be difficult due to habits, protected privileges, and fear of misuse. Deciding what should be kept secret is not always clear. The debate over transparency is complex (Shamshad, 2009).

The RTI acts as a powerful tool to control corruption and holds administration, its bodies, agencies, and departments accountable to the public. This not only prevents arbitrary state action, but also underlines the essence of a responsible democracy. Thus, it becomes essential to maintain the democratic ideal by finding a balance between information that should be accessible to the public and secure information that is crucial to the country's security and economy (Gopi, 2016). In summary, secrecy and openness in science are often perceived as opposing ideas, but they are interconnected and can support each other, adding to their importance. Instead of being contradictory, they should be viewed as positive categories that can coexist harmoniously (Vermeir, 2012).

The Doctrine of Proportionality

The idea of proportionality was originated in Europe, specifically in 18th-century Prussia and later in the 19th-century German judicial system (Mohamed, 2023). After the World War II, Germany included it in their constitution, and it was eventually adopted by the European Court of Human Rights in 1959 (Gilani et al., 2021). Proportionality is a way to resolve conflicts between different rights or interests. It involves a balancing stage where the competing rights or values are weighed against each other to find a fair resolution. This process helps settle disputes and find a middle ground (Cohen-Eliya & Porat, 2011a).

Jurisprudentially, the term 'proportionality' refers to the rules that determine when a law can limit a constitutionally protected right (Modern Dental College & Res.Cen. & v State Of Madhya Pradesh & Ors, 2016). According to Aharon Barak, former Chief Justice of the Supreme Court of Israel, four sub-components must be satisfied for limitation of a constitutional right to be permissible. First, it must have a proper purpose. Second, the measures must be rational and connected to that purpose. Third, there should be no alternative measures with lesser limitation. Finally, there must be a proper balance between the purpose and the importance of preventing the limitation (Barak, 2012).

The doctrine of proportionality is a significant concept in modern jurisprudence, emphasizing that authorities should use their powers in a way that minimally impacts individuals' rights. They must carefully measure and choose the least restrictive approach to avoid unnecessary harm to these rights. The doctrine also implies that any permissions, limitations, or penalties imposed should be proportional and not excessive compared to the intended goal (Gilani et al. 2021). Today, the rule of law is built upon striking a balance amongst constitutional rights and the public interest. Justice Khanna, an Indian Supreme Court Judge, emphasized that the rule of law is a universally recognized standard connected with the liberation of citizens. It aims to establish harmony amongst individual rights and the maintenance of public order. It includes more than just safeguarding constitutional rights; instead, it involves finding the right equilibrium between all its aspects. This is a widely accepted viewpoint in modern democracies. (Additional District Magistrate v. Shukla etc. 1976) . Despite facing some criticism (Gallego, 2020), the doctrine of proportionality continues to be widely accepted and influential in legal and constitutional matters (Barak, 2009; 2010).

To sum up the discussion, in 1982, Fritz Fleiner aptly summarized the law of proportionality, advising that one should never use excessive force or resources for a small problem, similar to not using a cannon to kill a sparrow (Mathews, 2017). The researchers find that the doctrine of proportionality can be located in the past to Aristotle's era and has influenced criminal, constitutional, and administrative law (Engle, 2012). T. Alexander outlined the doctrine of proportionality through constitutional rationality. He suggests examining constitutional interpretative theories that involve conflicting interests and metaphorically explained that the tribunal or judge should focus on which interest outweighs the other (Aleinikoff, 1986). Robert Alexy, a prominent advocate of the proportionality principle, views fundamental rights as principles, and the proportionality principle as a result of the principled nature of fundamental rights. As a consequence, fundamental rights express values and necessitate the optimization of these values. This can lead to conflicts between fundamental rights and sometimes with the guiding principles of the State in pursuing its objectives. The goal is to find the best possible balance in this process (Alexy, 2005; 2010). In summary, balancing, in a broader sense, means that the justifications for reasonable restrictions on a right must be proportional, and if the restrictions are disproportionate, then they are unjustified (Rivers, 2006).

Striking a Balance between RTI and State Secrecy

Equilibrium between the RTI and state secrecy is crucial for promoting transparency. Informed citizenry can hold the officials accountable for their actions. It contributes to a stable and progressive society. Considering the national and security concerns, certain limitations can be imposed on access to sensitive state confidential information. However, these limitations must be reasonable and appropriate. Taking into considerations of RTI and national security, this article analyzes the nexus between RTI and state secrecy in the context of "Public Interest Test" and "Proportionality Test".

Public Interest Test

Herbert D. Laube suggests that "human interest" is the driving force behind people's actions and motivations (Laube, 1949). The concept of public interest is fundamental in the field of public relations (Akcay, 2023). Public Interest in political context refers to universally beneficial policies or decisions. It transcends individual or group interests, focusing on the welfare of the entire community. It is a broad and diverse concept that should not be restricted. Its definition varies depending on the context and should be evaluated case by case. At its core, it means actions or outcomes that benefit the public as a whole for the promotion of equality and justice (Thaldar, 2022).

The courts have embraced openness, treating secrecy as an exception rather than the norm. In the Gupta case, seven judges supported the Right to Information, recognizing its significance. However, they also acknowledged that citizens' interest in accessing information can create competing dimensions for public functionaries. Balancing the Right to Information with the state's need for secrecy is crucial. Excessive disclosure can lead to controversies that challenge the smooth functioning of government, showing that transparency, while valuable, must be exercised judiciously to avoid adverse consequences (Gupta v. Union of India, 1981).

The significance of balance can be exemplified through cases like D. Trivedi case. In this case, a committee was formed to gather information about the mafia, and its report was sought to be made public. However, the court, upon examination, decided not to disclose the information as it could compromise the secrecy of the investigating arms of the state (Trivedi MP & Others v. Union of India, 1997) . Another instance involves sought information based on a report about irregularities in nuclear plants. The court refused to disclose it, emphasizing the importance of nuclear secrecy. Without maintaining such secrecy, there could be risks of sabotage or other security threats (People"s Union for Civil Liberties v. Union of India & others, 2004) . The primary goal is to achieve a balance between the RTI and the public interest. However, in specific circumstances like national security and commercial confidentiality, non-disclosure may be necessary to protect the public interest (McDonald & Terrill, 2016). But then again Judge Krishna Iyer emphasized that a régime functioning in secrecy not only undermines democratic principles but also leads to its own downfall (Gandhi v. Union of India, 1978). These examples demonstrate that while the RTI is essential, it must be balanced with the need for maintaining secrecy in certain critical matters to safeguard national security and prevent potential harm.

In Pakistan, the Right to Access to Information Act, 2017 establishes a legal framework to ensure transparency by providing access to information. It promotes the right to information enshrined in Article 19-A of the Constitution of Islamic Republic of Pakistan and incorporated in international treaties including International Covenant on Civil and Political Rights, 1966. The 2017 Act applies to all public bodies of the Federal Government. In order to protect the national security, the 2017 Act exempt certain information from disclosure. One such exemption is stated in section 7 (f) of the Right to Access to Information Act, 2017. It states that the Ministry-in-charge of the Federal Government can declare certain records to be exempted from disclosure by stating reasons as to "why the harm from disclosure of information outweighs public interest and further that information pertaining to allegation of corruption and violation of human rights shall not be excluded". Similarly the Punjab Transparency and Right to Information Act 2013, section 13 (2) provides certain exemptions from disclosure of the information. It states that a public information officer may refuse to grant access to information if it is likely to cause harm to public order. (Punjab Laws Online, 2013).

Proportionality Test

The proportionality test is a legal method used by courts, particularly constitutional courts, to deal with cases involving a clash between two or more legitimate rights. Under this approach, the court carefully balance the satisfaction of certain rights with the potential harm caused to others" rights. This test certifies that the court considers the impact of its decisions on all rights involved and they must strives to reach a fair and reasonable conclusion (Sobek & Montag, 2018).

The "Proportionality Test" requires a precise balance, or proportionality, between the benefits achieved in attaining the objective and the damage caused to the fundamental right in the process. To attain this, three practical steps are proposed by Barak. First, a reasonable link between the objective and the restriction must be established. Second, the least restrictive means must be used to achieve the objective. Thirdly, a proportionate result between the achievement of the objective and its impact on the troubled fundamental right must be considered. This balancing act requires consistent justification while considering each case of restriction on human rights (Barak, 2012). Researchers continue to make efforts to improve the proportionality doctrine and have identified some weaknesses in Barak's works (Bendor & Sela, 2015). Professor Jowell outlines a sophisticated four-stage proportionality test including the persuasiveness of the action for a legal purpose, means suitable to attain that purpose, accomplishment of the objective with a less preventive substitute and overall derogation acceptable in the interests of a democratic social order (Law Teacher, 2023). By employing this four-fold test, potential violations of fundamental democratic rights receive heightened scrutiny, ensuring a thorough examination of the decision's impact and safeguarding individual rights to the utmost extent.

Despite its imperfections, the doctrine of proportionality remains the most suitable approach for striking equilibrium amongst competing interests and upholding the principles of justice and fairness. In the words of the court "while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as 'doctrine of proportionality'" (Modern Dental College & Res. Cen. & v. State Of Madhya Pradesh & Ors, 2016) . In the well-known Oakes verdict, Lord Dickson highlighted that the proportionality test's nature may differ depending on the situations. However, in every situation, courts are needed to weighing scale in the interests of society with persons and factions. There are three crucial constituents of a proportionality test. Firstly, the procedures adopted must be rationally linked to the goal. Secondly, the methods should triflingly damage the right or freedom in question. Then thirdly, there is an essential availability of proportionality between the effects of the procedures restricting the right and the identified goal's importance (R v. Oakes, 1986) .

Conclusion

In conclusion, the right to information is pivotal for promoting accountability, mitigating corruption, and enhancing democratic participation. The points discussed clearly underscore that freedom of information is not only essential for good governance but also considered a fundamental human right. It is imperative for governments to take tangible actions to uphold transparency, or else their credibility could be at stake (Ali, 2006). Furthermore, the article underscores the importance of maintaining a balance between necessary secrecy and required transparency in governance (Barak, 2010). While secrecy is crucial in some scenarios, it must be carefully monitored to prevent misuse of power.

The article also highlights the doctrine of proportionality, stressing the need to justify reasonable limitations on rights in a balanced manner. The notion of proportionality has long been a critical tool in constitutional rights law globally, despite some scholarly criticism of its effectiveness in dealing with moral issues and the balancing process, their arguments have not convincingly undermined the significance of proportionality (Möller, 2012). The recommended approach is to apply the constitutional doctrine of proportionality as a check and balance mechanism, ensuring that the need for secrecy does not eclipse the principles of transparency and accountability essential to a democratic society (Davis, 2003). Legislatures have the primarily responsibility to create laws that uphold rights, and the executive branch should implement these laws following the constitution's value framework. When rights are restricted, courts must be convinced (Bedi, 2023), based on the balance of probabilities and substantial and compelling reasons provided by the State, that every phase of the proportionality analysis is met (Rivers, 2006).

The notion of proportionality has had a remarkable journey: from a moral philosophy concept to a legal rule, from an administrative law rule to a constitutional law norm. It has been dubbed the ultimate rule of law. While there may not be a definitive 'ultimate' rule of law, it's undeniable that the principle of proportionality is a rule that all courts inevitably consider in their decisions (Schlink, 2011). Judicial reluctance to conduct proportionality review stems from a misperception linking it to particular penological theories, whereas, in reality, it is rooted in essential liberal principles. To uphold the credibility of the government and ensure effective governance, concrete steps must be taken to align verbal commitments with the implementation of freedom of information. This would ultimately lead to a better-balanced approach that respects individual rights and safeguards against arbitrary state actions (Ristroph, 2005). Today, the proportionality test has become the standard for judicial review of executive actions, ensuring they align with constitutional principles and respect individual rights (Mustafa, 2015). In light of the evolving administrative landscape, it is evident that the doctrine of proportionality holds immense significance in maintaining the delicate balance between citizens' rights and the exercise of state authority.

Moving forward, it becomes imperative to actively apply and develop the proportionality principle in practice, ensuring that it serves as a powerful tool in safeguarding individual liberties, promoting good governance, and upholding the principles of justice and fairness in our society (Pradeep, 2021). In last but not least, public functionaries must exercise their discretion with care and responsibility. Training and adherence to the doctrine of balancing can promote good governance, reduce corruption, and enhance efficiency (Shoebridge, 2019). Acceptance of a culture of honesty and openness is vital for effective implementation of the RTI legislation, and then it will lead to a more accountable and participatory governance system.

Conflict of Interest

The author of the manuscript has no financial or non-financial conflict of interest in the subject matter or materials discussed in this manuscript.

Data Availability Statement

The data associated with this study will be provided by the corresponding author upon request.