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National security does not bar release of Gotabaya’s ‘departure’ cost details
View(s):- Appeal Court affirms RTIC ruling, declares RTI Act to supersede Official Secrets Act
- States that information may be refused on ‘legitimate national security reasons’ but not to ‘protect a government from embarrassment or conceal wrongdoing’
By Ranjith Padmasiri
The Court of Appeal held this Thursday that ‘financial and contractual information tied to defence infrastructure’ requested by citizens under the Right to Information Act (RTI Act) cannot be refused by the government on ‘remote’ considerations of national security.
Justice Dr. Sumudu Premachandra, with Justice R. Gurusinghe agreeing, emphasised that refusal of information can only be on cogent material demonstrating a ‘real or identifiable prejudice’ to national security. ‘A public authority cannot merely assert a blanket claim of secrecy and protection,’ Justice Premachandra reminded, adding that if the public interest ‘outweighs the harm’, the information has anyway to be released.
This was in dismissing an appeal by Vice Admiral Priyantha Perera, the then Navy Commander, against an order of the Right to Information Commission (RTI Commission) to disclose costs of travel of former President Gotabaya Rajapaksa when he boarded the naval ship SLNS Gajabahu in July 2022 in the wake of people’s protests which led to his ouster, along with the source of the payment and other details.
The Court of Appeal held that the risk of any harm to national security by such disclosure was too ‘remote’. The argument that the RTI Commission had failed to offer the ‘protection’ of Sri Lanka’s Official Secrets Act (OSA) to the public authority (SLN) was also dismissed, with the court pointing out that the OSA (1955) is superseded by the RTI Act (2016) by virtue of Section 4 of the RTI Act.
The case arose from a journalist asking for information regarding the travel of the former president, specifically the costs of the travel of the former president and who issued the approval/date of such approval. The SLN had refused to disclose the information on the basis that this would ‘undermine the defence of the State, its territorial integrity and national security.’
The 2023 order by the RTI Commission comprising (Rtd) Justice Upali Abeyratne, (Rtd) Justice Rohini Walgama, senior attorney-at-law Kishali Pinto-Jayawardena and attorney-at-law Jagath Liyanarachchi found that the Public Authority (SLN) had adduced no proof to establish a threat to either national security or territorial integrity under Section 5 (1)(b)(i). The Commission declined to accept the argument of the SLN that disclosing financial information would expose operational details of the travel.
However, the refusal of the SLN to release other items of information asked for, including the duration and travel movements of the former President after boarding the ship, was upheld by the Commission
Appealing against the directive to disclose costs of travel and source of payment, the SLN had argued that the Commission had failed to recognise that ‘national security matters are best left to the judgment of the relevant authorities’ and that it had ‘wrongly’ been required to prove that disclosure of the information would lead to a specific threat. The court dismissed the arguments holding that the SLN had failed to demonstrate a clear nexus between the disclosure of the information and national security.
While acknowledging that the matter concerned an ‘emergency naval operation’, Justice Premachandra remarked that the requested information ‘cannot be classified as a threat to national security as it does not directly link to warfare or military operations.’ Citing the Johannesburg Principles on National Security, Freedom of Expression and Access to Information, U.N. Doc. E/CN.4/1996/39 (1996), the court observed that information may be refused on ‘legitimate national security reasons’ but not to ‘protect a government from embarrassment or conceal wrongdoing’.
Referring to comparative jurisprudence, it was emphasised that ‘any restriction must be strictly necessary, proportionate, and supported by a ‘demonstrable risk of serious harm to the State.’ In the absence of ‘specific evidence’, the court held that the SLN’s ‘reliance on security characterised as a ‘generalised assertion or mere assertion’ cannot be a panacea and is ‘insufficient to meet the statutory threshold.’
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