Difference between Secret Information and Public One - Essay Example

?Answers There are two possibilities in Geoffrey’s case: A) he entrusted the information to his wife, and reasonably expected her to keep it to herself or B) he told Jane about the fax, knowing that she is a journalist and actually expecting her to publish it. In the first case, I believe he might be charged with committing an offence under the Official Secrets Act 1989. According to Section 12, 1(c) of the Act, he is a Crown servant. This section defines a crown servant as “any person employed in the civil service of the Crown, including Her Majesty’s Diplomatic Service, Her Majesty’s Overseas Civil Service, the civil service of Northern Ireland and the Northern Ireland Court Service...”1 Therefore, it was his duty to preserve the information received by him by fax as secret. Being a civil servant, he must have had some experience in making difference between secret information and public one. Geoffrey might be found guilty under subsection 1, Section3 of the Act (1) as being “A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he makes a damaging disclosure of—(a)any information, document or other article relating to international relations.” Geoffrey told his wife Jean about the information in the fax without lawful authority, as required by the law. According to Section 7 of the Act For the purposes of this Act, authorized disclosure is defined as “a disclosure by a Crown servant is made with lawful authority if, and only if, it is made in accordance with his official duty.” Geoffrey did not have the necessary authorization to disclose that kind of information and therefore, he should have kept it to himself. On the other hand, Geoffrey might have not known that this information was secret, as the case description speaks about a secret agreement between Government ministers and the United Nations that no exact figures would be given as to the number involved. Therefore, he might raise the defence provided by the Official Secrets Act 1989, in Section 3, subsection (4), which stipulates that: “It is a defence for a person charged with an offence under this section to prove that at the time of the alleged offence he did not know, and had no reasonable cause to believe, that the information, document or article in question was such as is mentioned in subsection (1) above or that its disclosure would be damaging within the meaning of that subsection.” If Geoffrey can prove that he was not aware that the information was confidential and its disclosure would be damaging, he might avoid being held liable for disclosing it. On the other hand, by telling his wife, whom he, of course, knew that is a journalist, it must have occurred to his mind that his wife, as any journalist, might use that information in her own interest and make it public. I believe that Geoffrey, as a Crown servant, should have acted with caution as regards the information and find out if it is secret or not before passing it to other parties. His wife, on the other hand, might be held liable for publishing this information under Section 5 of the Act, within the provisions of which she might fall. Section 5 (2) stipulates that: “Subject to subsections (3) and (4) below, the person into whose possession the information, document or article has come is guilty of an offence if he discloses it without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession as mentioned in subsection (1) above.” So, unless the disclosure was not damaging, Jean can be held liable under the Act. This is the case of the information passed to Jean by her husband, as he entrusted her that information, in accordance with Subsection 1, Section 5 of the Act. Geoffrey should have warned his wife about the importance of the information and the necessity to keep it secret. This is applicable, unless Geoffrey intentionally told his wife about the fax, expecting her to publish it, and not hold it as a secret, whereas he will also be charged under the Act. In conclusion, no matter which possibility is applicable to Geoffrey’s case, the fact is that he – as a Crown servant, should have held the information possessed by him in confidence, and not tell it to a journalist, even if the journalist is his wife. 2. Considering the case description, I believe that Alfred might be regarded as a government contractor, under the terms of Section 12, subsection 2 of the Act, as being “...a person who is not a Crown servant but who provides, or is employed in the provision of, goods or services.” Therefore, he should have complied with the provisions of Section 8 of the Act and take proper care of the information that he possessed. If the burglar himself understood that the stolen documents were of great importance, it is reasonable to expect that Alfred, too, must have known that the design specifications are to be held secret. Alfred should have taken care to prevent unauthorized disclosure of the documents, and leaving them in an open cupboard proves the contrary – lack of care. Being a government contractor, Alfred was obliged to apply the proper measures of protection in order to avoid accidental disclosure of the information entrusted to him. Subsection 1, Section 8 specifies that: “Where a Crown servant or government contractor, by virtue of his position as such, has in his possession or under his control any document or other article which it would be an offence under any of the foregoing provisions of this Act for him to disclose without lawful authority he is guilty of an offence if— (b)...he fails to take such care to prevent the unauthorised disclosure of the document or article as a person in his position may reasonably be expected to take.” Therefore, I believe that Alfred might be held liable under the above legal provision. Pete, the burglar, who has illegally come into the possession of the design specifications by stealing them, is, of course, guilty of stealing them and selling them to Daily Fail. He has come into their possession illegally and, understanding the importance of the stolen documents, he actually sold them in order for the design specifications to be published. The purpose of the burglar selling the documents is irrelevant in this case: of course, he probably sold them in order to get some money and not to cause damages. However, the action itself is illegal, as he was aware of the importance of keeping the design specifications in confidence and he still decided that his own financial situation is more important. According to Section 5 of the Act, the design specifications shall be considered as being disclosed to Pete by Alfred, without lawful authority (Section 5, 1-a (i)disclosed (whether to him or another) by a Crown servant or government contractor without lawful authority). The fact that Pete has actually stolen them is not relevant in this case, as the Official Secrets Act 1989 does not exclude accidental disclosure from liability. Pete, possessing such secret information, which has been accidentally disclosed to him by Alfred, and being aware of the importance of the information, should have acted with caution and not sell the documents to a newspaper. Therefore, in addition to the criminal charges regarding illegal trespassing and burglary, Pete will also be held liable for disclosing secret information under the Official Secrets Act 1989. The Official Secrets Act 1989, however, provides means of getting the design specifications back. The Ministry of Defence must issue in the address of Daily Fail an official direction for their return, under Section 8 of the Official Secrets Act 1989. According to this stipulation, ““official direction” means a direction duly given by a Crown servant or government contractor or by or on behalf of a prescribed body or a body of a prescribed class.” In case the newspaper refuses to return the design specifications, it might be held liable under Subsection 4, Section 8 of the Act, which stipulates that: “Where a person has in his possession or under his control any document or other article which it would be an offence under section 5 above for him to disclose without lawful authority, he is guilty of an offence if—(a) he fails to comply with an official direction for its return or disposal.” I believe this is possible, as this subsection does not specify if it refers only to Crown servants and Government contractors. Considering this, I would believe that the provision is applicable to any person, disregarding if it is a natural person or a legal entity, which possesses or has under his control secret information that may cause damages if disclosed. Considering this, the Daily Fail will be obliged by law to comply with the official direction issued by the Ministry of Defence and return the design specifications. Read More

 

Read More