Protecting sensitive national security information in the age of Freedom of Information

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Major General Chris Olukolade, Director, Defence Information (Nigeria)

Being a keynote address delivered by Major General Chris Olukolade, Director, Defence Information, at the African regional conference on Freedom of Information implementation, Reiz Continental Hotel, CBA District Abuja, Nigeria, 18-19 March 2014.

INTRODUCTION

This paper essentially is a review of the statutory and institutional framework that protects classified information. Open government is the norm in democracy. Consequently, citizens have the right of access to government information in order to allow for public oversight. Secrecy in government affairs is usually frowned at since the government exists in the public interest. 

In the Nigerian context, democracy has given impetus to the passage of the Freedom of Information law. With the law, greater disclosure is expected in the conduct of government business as the judiciary can now intervene where such disclosure as required by law is denied.

Evidently, this has implication for sensitive security information or what we normally refer to as classified information. Information of this nature must be protected from getting into the wrong hands, because it has the potential to compromise national security. Crafters of the FOI law in their wisdom have put provisions in the law to ensure that defence information is protected.

Be that as it may, protecting defence information portends enormous challenges. This is because the public’s right to know must be continually balanced against national security, in the preparation and dissemination of information, especially as the country grapples with internal and external security threats.

At the heart of the matter is managing the main stream media, the online media and the social media whose main business is disclosure.

The aim of this paper is to examine these challenges: statutorily and institutionally and how we have partnered with stakeholders in the management of security information over the years.

PROTECTING NATIONAL SECURITY INFORMATION 

Protecting national security information is a fundamental activity in defence administration. This is provided for in the National Security Agencies Act, the National Defence Policy and the FoI Act itself.  Information is generated and used within the various arms of the military on a daily basis to document actions, confirm decisions, identify rights and responsibilities, and to communicate within the hierarchy and with members of the public.

Without information flow, communication within the system would simply grind to a halt. The public would simply view us with suspicion and hostility. Information generally is compartmentalised or classified. Classification would generally range from the non risk information to the high risk or top secret information. While the non risk information is generally made available on demand or exists in the public domain the top secret information is restricted. At the lowest level is the information which is usually made available to guide members of the public on our activities or operations. Such information are disseminated through briefings, publications, and the media.

Information within the defence apparatus, is used for wide-ranging purposes but the ones we may consider as sensitive would have to do with those that may have negative repercussions or prejudicial to national security and strategic objectives if mishandled.

Such information may border on troop deployment, operational procedures, numbers and where troops are deployed. Resources available, hardware and software and their location amongst others. The enemy laying hands on such information may use it to sabotage our national defence strategy. Hence there is always the need for institutional and statutory cover for classified information especially when national security is at stake.

Much of this has been recognized and endorsed in definitions contained in the principles spelt out in Part II of the Global Principles on National Security and The Right to Information (The TSHWANE Principles) of 2013:

PART II:  INFORMATION THAT MAY BE WITHHELD ON NATIONAL SECURITY GROUNDS, AND INFORMATION THAT SHOULD BE DISCLOSED 

Principle 9:  Information that Legitimately May Be Withheld

(a) Public authorities may restrict the public’s right of access to information on national security grounds, but only if such restrictions comply with all of the other provisions of these Principles, the information is held by a public authority, and the information falls within one of the following categories:

(i) Information about on-going defence plans, operations, and capabilities for the length of time that the information is of operational utility. 

 (ii) Information about the production, capabilities, or use of weapons systems and other military systems, including communications systems.

 (iii) Information about specific measures to safeguard the territory of the state, critical infrastructure, or critical national institutions against threats or use of force or sabotage, the effectiveness of which depend upon secrecy;

 (iv) Information pertaining to, or derived from, the operations, sources, and methods of intelligence services, insofar as they concern national security matters; and  

(v) Information concerning national security matters that was supplied by a foreign state or inter-governmental body with an express expectation of confidentiality; and other diplomatic communications insofar as they concern national security matters.

Note: To the extent that particular information concerning terrorism, and counter-terrorism measures, is covered by one of the above categories, the public’s right of access to such information may be subject to restrictions on national security grounds in accordance with this and other provisions of the Principles. At the same time, some information concerning terrorism or counterterrorism measures may be of particularly high public interest.

Institutionally the military restrict information to certain officers within it ranks and mishandling of such information can result in serious sanctions. In this instance, anyone outside the scope of access is required to first obtain a formal security clearance before such information is made available.

The secrecy of a document is usually hierarchical in nature, the higher an officer is up the ladder the greater his access to secret documents. This it must be said is a direct result of the regimental nature of defence institutions. Be that as it may sensitive information may fall into the hands of unauthorised personnel. When this happens we can only pray that such individual would act responsibly and in the national interest. I am sure we are all aware of the embarrassment the civilian defence contractor, Edward Snowden is currently causing the United States government.

The challenge is to ensure that sensitive security information is processed and stored in such a way that only authorised personnel can access it. However with changing communication technologies, where miniaturised storage and retrieval devises are readily available in the open market this can be a daunting challenge.

 The important thing to note here in protecting information is to recognise that information has a life-cycle. The task is to make sure that information is organized and controlled all through its life circle from creation, to use, and final disposal. This we do with methodical patience and professionalism in the service of the nation.

OUTLINE OF OPERATIONAL PROCEEDURE

The responsibility of protecting national security information from getting into unauthorised hands, lies on the military and security establishment generally, below is a review of major operational procedures put in place by the security establishment to protect sensitive national security information. The procedures as you would observe has human capacity development component, public relations and media relations components and institutional development.

Security of Documents

The flow of security documents is very vital to the management of security related information.   Accordingly, the training on document security has remained an essential aspect of training for officers and soldiers.    Document security is the collective term which describes protective measures designed to ensure that classified information in documentary form is correctly safeguarded always.  Some of the document include: notes, letters, maps, charts drawings, carbons, films, photographs, slides, recording tapes, printing plates and so on.  The principle that are inculcated in military personnel by training border on:

a.       The Need to Know.  A fundamental principle of security is that knowledge or possession of classified materials of any grade should be limited to those who are both authorized to receive it and need to know it in order to carry out their duties.  Rank and appointment do not of themselves entitle anyone to knowledge or possession of classified information.

b.      The Need to Hold.  Classified materials are retained by an individual officer after it has ceased to be necessary for the efficient discharge of his duties.  The materials are therefore reviewed at regular intervals.

c.       Security of Reproduction and Reproduction Processes.   Only authorized personnel may be employed to produce and reproduce classified documents.  Commanders have responsibility to pay particular attention to those offices or facilities where productions of official information materials are conducted emphasizing the need for:

(1)    Regular and frequent inspection of such facilities by intelligence officers.

(2)    All officers are billed on need for precautions to prevent extra copies being produced either inadvertently, or for unauthorized purposes

(3)    Unauthorised persons are not allowed access to or recorded information.

(6)    When in use recording machines are kept away from telephones as far as possible.

(7)    Recording machines are not allowed near security communications, equipment (eg.  Cypher machines and radios.

(8)    As a safeguard against the threat of eavesdropping, machines are forbidden in rooms in which classified information is being discussed or other buildings which might be used for the installation of intercept equipment.

(9)    All classified material should be erased from tape as soon as possible and when no longer required, tapes are cut into small pieces and then disposed of as classified waste.

(10)  Photocopy machines are carefully handled in such a way necessary to prevent copies being made accidentally. 

(11)  All soft copies used for classified material are kept in secure containers out of normal duty hours, and destroyed as classified waste when they become unserviceable.

(12)  In general, all materials used in producing classified documents, eg, flash drive, plates, trial copies and all hard drives are treated as classified matter.

(13)  When documents are being passed, they are carried under cover to prevent unauthorized persons from seeing them. 

(14)  Extract from, or copies of top secret and secret documents are made only on the authority of a responsible officer who is himself entitled to originate such documents.

(15)  Contingencies might warrant that certain documents or instructions be seen only by Nigerians troops or certain other nationals.  Such documents would be appropriately marked.  This may be useful in multinational operations.

Other Approach.

In spite of allowances granted under the FoIA however, the military has been promoting the principles of the responsibility to report by regular capacity building for personnel tasked with information management.  Public information officers are being encouraged to be up to date in the dynamics of information and media management especially in the light of the imperatives of globalization and place of real time reporting.  Beyond the foregoing approach however, and as a way of taking care of specific requirements of the freedom of information, the services also have in placed some programmes:

Training. The Training on Media Relations has been added as a package in the various tactical operational and strategic level training for military institutions.  The Nigerian Army now has established Nigerian Army School of Public Relations and Information in Lagos to train its information managers for a more professional input.  This school has aspiration to be like the Defence Information School in the United States.

The practice of public information management is also being professionalised.  All the Services including the intelligence or secret services now have Public Relations/Media Relations Units.  The military is promoting a procedure of managing its information.  On its part, the Nigerian military intends to guide its Public Information management and dissemination on a philosophy that observes the principle or checklist of: Security, Accuracy, Propriety and Policy.  It is necessary that media be encouraged to also understand and endorse this approach in order to promote harmonious relations.

 It is noteworthy that despite the gravity of our security situation, Government has not placed any definite restriction that could be said to have violated or abused the Johannesburg Principles on National Security, Freedom of Expression and Access to Information at least since the declaration of State of Emergency in May 2013. Security agencies have been generally careful in enforcing or demanding compliance with laws that could impugn on freedom of expression. 

The disconnection of telephone emplaced at the commencement of state of emergency was duly lifted when security evaluation of the situation allowed for it. But from all indications, the necessity of the measure was well understood, as there was no spirited challenge of the restriction, while it lasted.  

It is also significant to bear in mind, the relevance of the values identified and advocated in the Johannesburg Principles of National Security Freedom of Expression and Access to Information prescribed in Principle 3 and Chapter II as they clearly indicate the circumstances that explain the justification for the approach to protecting sensitive national security information in our context.   Among others, these principles were clear in their statements:

“In time of public emergency which threatens the life of the country and the existence of which is officially and lawfully proclaimed in accordance with both national and international law, a state may impose restrictions on freedom of expression and information but only to the extent strictly required by the exigencies of the situation and only when and for so long as they are not inconsistent with the government’s other obligations under international law”

Expression That May Threaten National Security.  Subject to Principles 15 and 16, expressions may be punished as a threat to national security only if a government can demonstrate that:

a.      The expression is intended to incite imminent violence,

b.     It is likely to incite such violence and

c.      There is a direct and immediate connection between the expression and the likelihood or occurrence of such violence

Generally, there has been a very remarkable development could be attributed to the general understanding and cooperation shown by the local media in Nigeria.  While most foreign media were ready to disregard principle and laws in favour of security in Nigeria by throwing caution to the winds, the local one were able to show some cool headedness.  While media such as BBC Hausa Service, BFI, Aljazeera and the social media have continued to offer their channels for slanted reports in violation of virtually all the principles of Chapter 11 (Principles 6 – 10) of the Johannesburg Principles which discusses restrictions on Freedom of Expression, no individual or media has so far been sanctioned.  The movement of journalists has not been restricted either.  Rather, they have been occasionally conducted on visits to crisis areas.  No censorship process has been installed even in the face of glaring concerns of insecurity.

The National Assembly in its oversight function on FoIA has also provided a platform for interaction between security agencies and stake holders on the implementation of the Act. A one day session was held at the National Assembly in October 2013.  The Nigerian security and defence system has been able to cope with the evolving challenges implied in FoIA and are still disposed to developing ways and means of ensuring compliance. 

The Nigerian military will continue to study the details of the Johannesburg Principles, and the TSHWANE Principles as well as other principles and document with a view to making necessary provisions and adjustments that would foster their observance, within the limits permitted by Nigerians laws.  The Nigerian military has always demonstrated its commitment to the basic principle of democracy which demands that citizens be informed about their Government.  

The FoIA is designed to ensure that the FGN provides the public with information to the maximum extent possible.  Despite the exemptions granted the defence/security sector by the Act, the military will endeavour to practice maximum disclosure within the limits permitted by the dictates of the nation’s security.  Hence information dissemination will be guided by observance of the principles emphasizing priority to Security, Accuracy, Propriety and Policy as a guide.

Indeed, the task of protecting security information, while providing information to the public could be very challenging, and delicate especially with the sensitive legal dimension now added by the need to observe the dictate of FoIA.  It could get to serious public relations ramifications and implications.

The above generally constitute the institutional structures and procedures within the security services for the protection of National Security Information. There is however the statutory dimension that requires transparency and disclosure, especially under the FOI regime.

DEMOCRACY, RULE OF LAW AND THE FOI ACT 2011

Media’s right of access to information coupled with individual liberty in a democratic society is unalienable, and these rights are enshrined in constitutional provisions. The 1999 constitution (as amended) grants press powers in section 22, and section 39.

Apart from this constitutional cover we now live in an age of Freedom of Information. The freedom of Information Act (FoIA), which was signed into law by President Goodluck Jonathan on May 28, 2011contains far reaching provisions which l dare say is challenging to national security information management.

The underlying philosophy of the Act is that public officers are custodians of a public trust on behalf of a population who have a right to know what the Government does. In particular, the FoIA removes the aura of mystery and exclusion with which public institutions clothe the ordinary operations of government. This clearly has implications for national security information.

The preamble to the Johannesburg Principles of National Security, Freedom of Expression and Access to Information alluded to this necessity by stating that an FoI law should not be a cover to place restriction on information which should be in the public domain:

“to promote clear recognition of the limited scope of restrictions on freedom of expression and freedom of information that may be imposed in the interest of national security, so as to discourage governments from using the pretext of national security to place unjustified restrictions on the exercise of these freedom”.

It is hoped nevertheless, that the safety valves incorporated in the Act will strike the necessary balance and the need to protect national security information. A review of some provisions of the Act in relation to other statutory and legal provisions is necessary in this regards.

FoIA, OFFICIAL SECRETS ACT (OSA) AND THE NATIONAL SECURITY AGENCIES ACT

The Official Secrets Act took effect from September 13, 1962. The law has hitherto protected public officials from the disclosure of information that has national security implications. It prohibits the publication of ‘classified matter’ by newspapers and it defines classified matter as ‘any information or thing, under any system of security classification from time to time in use by any branch of the government, which is not to be disclosed to the public and of which disclosure to the public would be prejudicial to the security of Nigeria.’

Offences under this act include: obtaining, reproducing or retaining any classified matter which an individual is not authorised on behalf of government to obtain, reproduce or retain as the case may be, entering or being in the vicinity of a protected place, or photographing, sketching or making record or description of a protected place or of anything situated therein, transmitting of classified matter to any person to whom any other person is not authorised on behalf of government to transmit it and failure on the part of a public officer to comply with instruction to, on behalf of the government, safeguard any classified matter which by virtue of his office is obtained by him or under his control.

The contravention of this Act earns the guilty person 14 years imprisonment or less and the Act is not only applicable throughout Nigeria but is also applicable to all citizens of Nigeria irrespective of their country of domicile.

Observers have often remarked that, public officers use the OSA as a cover to decline information deemed to have security implication. However Section 2(1) of the FoI Act establishes:

“the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution, however described.”

This provision has been interpreted by some legal commentators to means that the FoIA is superior to and supersedes the Official Secrets Act. Thereby rendering its provisions null and void. But the FoIA does not have the same effect on the National Security Agencies Act because this Act is entrenched in the Constitution and the special procedure prescribed in Section 9(2) of the Constitution for its amendment would have to be invoked for this to change. The National Security Agencies Act 1986, grants legal backings to the three principal security agencies of the Federal Government of Nigeria. These agencies are: the Defence Intelligence Agency, the State Security Service and the National Intelligence Agency. Section 1 (b & c) of the Act charged the Defence Intelligence Agency with:

       (b) the protection and preservation of all military classified matters concerning the security of Nigeria, both within and outside Nigeria;

      (c) such other responsibilities affecting defence intelligence of a military nature, both within and outside Nigeria, as the President, or the Chief of Defence
Staff, as the case may be, may deem necessary.

It is of interest to also note that section 7 subsection (2)  of the Act has settled any contradiction that may arise in respect of the FoI Act.

“If any other law is inconsistent with the provisions of this Act, the provisions of this Act shall prevail and that other law shall, to the extent of the inconsistency, be void”.

Protection for defence and security information is clearly provided for in our statute books before the enactment of the FoI Act and l dear say even after as the FoI Act itself protects defence information

Some Categories of Information Exempted from Disclosure

Specifically, sections 11-17 of the FoI Act exempt certain information and records from public access. Such exempted information includes information the disclosure of which could damage the conduct of international affairs and defence of Nigeria; information on administrative law enforcement proceedings and investigation; personal information; third party information such as trade secrets and commercial or financial information. Information and records pertaining to professional privileges, journalism confidentiality, legal practitioner and health worker privileges are similarly exempted.

The implication of this is that Freedom of access to information, though legally enforceable is not absolute. The law provides for protection of certain classes of information, which in a balance of probability would not serve any public interest but rather detrimental to national security. While the public right to know is enshrine in the FoI Act it can be curtailed under certain circumstances.

This notwithstanding, the defence information manager still has a lot to do in protecting defence and security information from getting into the public domain. The National Defence Policy states clearly in Chapter 7 that:

“Without prejudice to the freedom of the press as enshrined in the Constitution”, the Defence Headquarters for orderly reporting of events during wars or national emergencies.  It emphasized that:  “In all situations, national interest and the need for national security shall take precedence”

The Armed Forces of Nigeria’s Counter Terrorism Strategy in Part II, identified what it called the: “Exploited Mass Media marketing” as one of the trends fostering terrorism in Nigeria. It noted the misuse of media coverage or reportage as a norm for the terrorists in his bid to cause fear and destruction among the population to gain attention.  The normal appropriate attitude for a security conscious people and the press is to deny the terrorists the use of this channel for such motives. Hence the role of the media in protection of sensitive security information is paramount.

The security situation in the country has made Nigerians more interested in issues relating to security.  For example, it is now usual for citizens to be discussing issues such as budget allocation to security and defence; Rules of Engagement for the ongoing security operations in the northern part of the country; operational strategy or procedure of the military; equipment purchased etc.  Citizens now watch with keen interest, Parliamentary debates or discussions of: Baga: terrorist attack on schools and security installations etc.  Security issues have become so typical that it has become the focus of a “media feeding frenzy” and not just the media, we also have the , academic and NGOs, in the fray.

DISPOSITION OF THE MEDIA

It is obvious that the task of the media, however sedulously it may be disguised, is disclosure. The media is not in business to foster public confidence in public administration, or public institutions, however admirable. Disclosure is its business. This is even more so, in a convoluted political environment where people play politics with everything and there is no red line on security information.

Consequently what kind of headlines do we see in the newspapers when a major incident occurs? Let us look at some examples:

 “Boko Haram have better arms than the military”

“Boko Haram members better motivated”

“Army top brass divert monies meant for troops”

These headlines are enough to indicate the media’s objectives in reporting the news, highlighting the negatives and speculating as to the causes or indicating possible blame. Evidently national security is a distant consideration. Under this condition the task of protecting national security information is daunting.

It is the role of the media to report and to comment on events. Modern technology enables them to add speed and impact to their professional response. Moreover, how can we hope to monitor, let alone restrict, the modern media?

In the light of this the only sensible thing to do is to seek the cooperation of the media. There is the need to proactively cultivate the media in the task of protecting sensitive national security information. In my experience, good relationships help to:

·       promote a better understanding;

·       inspire confidence and respect;

·       enable an acceptable policy to be formulated;

·       encourage co-operation and assistance from the media;

·       assist in the protection of embargoed information.

·       facilitate the solving of problems;

·       assist in the achieving of mutually beneficial objectives.

CONCLUSION

In conclusion l would say that there are statutory and institutional framework for the protection of sensitive security information. Such statutory provisions are contained in the National Security Agencies Act the FoI Act and the Constitution of the Federal Republic of Nigeria 1999 and the National Defence Policy.  The security services on its own part have its own internal mechanism of protecting security information in the interest of national defence and security.

The news media can be a strong or a weak link in the pursuit and protection of sensitive national security information. This is because of the awesome powers of the media especially in a democratic government.

The media should be seen as partners. I believe that  the best policy is to proactively cultivate the news media and be as forthcoming and helpful as possible when the need arises. In particular, the aim should be to provide the media with as much factual information about incidents as possible, provided:

“disclosure would not compromise or be prejudicial to national security; as to hamper operations; or cause public panic. The goal should be building an enduring partnership of mutual trust and understanding”.

Given good relationships, the media can be positively helpful in protecting sensitive national security information. The media in effect should be seen as partners. National security in an age of freedom of information is in the interest of every one including the media practitioners themselves. A strong and virile nation serve the purpose of every one.

The media and advocacy bodies such as the Media Rights Agenda are implored to accept the hand of fellowship from security agencies to enable the nation enjoy the reality of the spirit and letter of the Freedom of Information Act in Nigeria.  Thank you.

References

1.        Stewart, M. and Hodgkinson, P.E., “Disaster and the Media”, Disaster Management, Vol. 1 No. 2, 1988.

2.        Raphael, B., When Disaster Strikes, Hutchinson, London, 1986.

3.        Denny, A., “Incident – What Incident?”, paper to Hazchem Symposium, Cleveland, 1999.

4.        Maho, A. E, “Media Management and Planning”, paper presented at a workshop for Resident Information Officers, FMI, Abuja, 2009.

5.        Constitution of the FRN, 1999 as amended.

6.        Nigeria Freedom of Information Act 2011.

7.        National Defence Policy.

8.        National Security Agencies Act, 1986.

9.        Kemi Okenyodo, Discussion Paper, “Nigeria's Freedom of Information Act 2011, 2 Years After: Challenges and Prospects” Abuja, 30th and 31st July, 2013.

10.      Armed Forces of Nigeria Counter Terrorism Strategy handbook. 2013.