Official Secrets Act

gadarnol

Leaving aside all political posturing I’m curious about two aspects of this Act that have been highlighted recently. Firstly the act excludes its application to members of the Oireachtas and secondly it doesn’t define “benefit”. My questions are: is the exclusion for MoO universal and if so what act if any prohibits the disclosure of state secrets by MoO. The next question is of course what is a state secret? Finally if an act omits a definition of a term, in this case “benefit”, how have the courts interpreted the lack of such definition in an act previously. No politics please.

nuac

Mod
Open for discussion. Pls indicate which portion of the query you are dealing with

Samuel T. Cogley

Am I right in thinking the maximum penalty under the Act is 2 years in prison, always struck me as kind of light.

Losty Dublin

Samuel T. Cogley wrote: »

Am I right in thinking the maximum penalty under the Act is 2 years in prison, always struck me as kind of light.

Although such a sanction is not specified under the Act, anybody who'd end up being found guilty are almost certainly going to have lost their Public Sector job as well.

Samuel T. Cogley

Losty Dublin wrote: »

Although such a sanction is not specified under the Act, anybody who'd end up being found guilty are almost certainly going to have lost their Public Sector job as well.

Oh absolutely - even get the probation Act (unrelated to the OSA) and you're probably gone.

Victor

Note that there are several acts to consider.

gadarnol wrote: »

The next question is of course what is a state secret?

There is a document classification hierarchy - something like confidential, restricted and secret.

A state secret is something marked "secret".

Peregrinus

gadarnol wrote: »

Leaving aside all political posturing I’m curious about two aspects of this Act that have been highlighted recently. Firstly the act excludes its application to members of the Oireachtas and secondly it doesn’t define “benefit”. My questions are: is the exclusion for MoO universal . . .

Members of the Oireachtas are not “public officials” for any purpose of the Act.

But this doesn’t mean that the Act doesn’t apply to them. See below.

gadarnol wrote: »

The next question is of course what is a state secret?

The Act doesn’t use the term “state secret”. In fact, despite being called the Official Secrets Act, it doesn’t even use the term “official secret”. The central provision of the Act is a prohibition on the communication of “official information” (unless authorised to communicate it). (There’s a slew of execptions and qualifications, but let’s ignore those for the time being.) “Official information” is defined as:

- any secret official code or password; and

- any document or information which is secret or confidential, and which or has been in the possession of a public office holder, or which a public office holder has access to by virtue of his office.

Couple of points:

1. The prohibition applies to “any person”, inc. members of the Oireachtas. So if civil servant Mr A passes confidential information to TD Ms B, that’s “official information” because it has been in the possession of a holder of a public office - namely, Mr. A. TD Ms B is prohibited by the Act from communicating that official information to any other person unless duly authorised etc etc.

2. “Secret” and “confidential” are not defined, which means they have their ordinary meanings. As a quick check of a dictionary will show, information is “secret” if it’s not supposed to be publicly known, or is supposed to be known only to a limited number of people. Most of the information that most public servants handle is “secret” in this sense, unless it has already been published or is destined or expected to be published.

gadarnol wrote: »

Finally if an act omits a definition of a term, in this case “benefit”, how have the courts interpreted the lack of such definition in an act previously. No politics please.

The act doesn’t use the term “benefit”, so the question of defining it doesn’t arise.

cml387

Has anyone in Ireland ever been prosecuted under the OSA?

There was a civil servant last year convicted, Jonathan Lennon.
Worked in the office of the DPP.

Theres a number of official secret acts. I think the 1963 act gives the most examples and definitions of what falls within it's meaning. I think peregrinus has covered it really.

The penalty is 7 years imprisonment under the act BUT if you breach the act, you could be charged with the higher offence of treason in theory albeit a hard thing to actually achieve.

ohnonotgmail

gadarnol wrote: »

Finally if an act omits a definition of a term, in this case “benefit”, how have the courts interpreted the lack of such definition in an act previously. No politics please.

If an act does not explicitly define a term then it's ordinary meaning applies.

gadarnol

I won’t quote Peregrinus in full but thanks for the lengthy answer. Even though the term “benefit” does not appear in the Act you have answered the substance of the question in relation to it ie in the absence of definition the dictionary definition applies.

The lack of definition there seems to also apply to what is a “state secret”. It seems that practically everything the civil service handles falls into that category. There are all sorts of implications from so broad a definition.

ohnonotgmail

gadarnol wrote: »

I won’t quote Peregrinus in full but thanks for the lengthy answer. Even though the term “benefit” does not appear in the Act you have answered the substance of the question in relation to it ie in the absence of definition the dictionary definition applies.

The lack of definition there seems to also apply to what is a “state secret”. It seems that practically everything the civil service handles falls into that category. There are all sorts of implications from so broad a definition.

I think the issue you have is your use of the phrase "state secret". this phrase does not appear in the 1963 version of the act. The phrase used is "official information". can you clarify where you are seeing the phrase "state secret"?

gadarnol

ohnonotgmail wrote: »

I think the issue you have is your use of the phrase "state secret". this phrase does not appear in the 1963 version of the act. The phrase used is "official information". can you clarify where you are seeing the phrase "state secret"?

I raised several queries in the op. All have been answered and I await to see if there is any different opinion particularly around MoO. State secret is the common or garden term used around this: although the Act uses Official secrets in the title it doesn’t seem to appear anywhere after that. Maybe it should be renamed the Official Information Act.

ohnonotgmail

gadarnol wrote: »

I raised several queries in the op. All have been answered and I await to see if there is any different opinion particularly around MoO..

There was an opinion from a SC released a couple of days ago that matches up with the post from Peregrinus.

gadarnol wrote: »

State secret is the common or garden term used around this: although the Act uses Official secrets in the title it doesn’t seem to appear anywhere after that. Maybe it should be renamed the Official Information Act.

the problem with using common or garden terms in a legal discussion is that you only end up with confusion. If one wishes to discuss a particular act it makes sense to restrict yourself to the terms used within.

gadarnol

ohnonotgmail wrote: »

There was an opinion from a SC released a couple of days ago that matches up with the post from Peregrinus.



the problem with using common or garden terms in a legal discussion is that you only end up with confusion. If one wishes to discuss a particular act it makes sense to restrict yourself to the terms used within.

One of the values of the discussion is that it clarifies the legal term and how it differs from the usual use of a term. I’ll be guided by the fact that the mod allowed the thread to be opened.

ohnonotgmail

gadarnol wrote: »

One of the values of the discussion is that it clarifies the legal term and how it differs from the usual use of a term. I’ll be guided by the fact that the mod allowed the thread to be opened.

but you were not using a legal term hence your confusion over it's meaning.

gadarnol

ohnonotgmail wrote: »

but you were not using a legal term hence your confusion over it's meaning.

Thank you and good morning.

gadarnol

So this descended into the op being a dick for some reason.

gadarnol wrote: »

Maybe it should be renamed the Official Information Act.

And yet you insist on using 'state secret' which isn't mentioned at all.

Op, I have never used the term 'state secret'. People doing so is irrelevant when discussing the act that states 'official'.

We cannot debate the legal view of a term that is not used because he simple won't come up. The term will not be used in a case.

gadarnol

Niner leprauchan wrote: »

So this descended into the op being a dick for some reason.



And yet you insist on using 'state secret' which isn't mentioned at all.

Op, I have never used the term 'state secret'. People doing so is irrelevant when discussing the act that states 'official'.

We cannot debate the legal view of a term that is not used because he simple won't come up. The term will not be used in a case.

Reported for personal abuse.

gadarnol

gadarnol wrote: »

Reported for personal abuse.

It's number one in the rules but whatever, you dragged your own thread down

gadarnol

Niner leprauchan wrote: »

It's number one in the rules but whatever, you dragged your own thread down

I’ll leave it to the mod to deal with.

cml387

What is considered to be a secret is an interesting discussion I would have thought.

Clive Ponting was acquitted after leaking top secret documents on the sinking of the Belgrano, his defence being that it was in the public interest to do so, and the jury agreed (despite being directed by the judge to find him guilty).

Subsequently the British OSA wa modified to say that the public interest is defined by the government.

cml387

cml387 wrote: »

What is considered to be a secret is an interesting discussion I would have thought.

Clive Ponting was acquitted after leaking top secret documents on the sinking of the Belgrano, his defence being that it was in the public interest to do so, and the jury agreed (despite being directed by the judge to find him guilty).

Subsequently the British OSA wa modified to say that the public interest is defined by the government.

It just takes it's general meaning, information not meant to be known by others.

The UK case was interesting because he leaked to a sitting mp and the very odd amendment it resulted in. "Your interests are what we tell you they are". How very 1984

gadarnol

cml387 wrote: »

What is considered to be a secret is an interesting discussion I would have thought.

Clive Ponting was acquitted after leaking top secret documents on the sinking of the Belgrano, his defence being that it was in the public interest to do so, and the jury agreed (despite being directed by the judge to find him guilty).

Subsequently the British OSA wa modified to say that the public interest is defined by the government.

I think that unless a court case decides to the contrary the consensus seems to be in response to my queries: MoO are included in scope of act, the title of the act is a portmanteau term for what is called official information with various terms and types described in the act and in law generally terms that are undefined in an act carry their ordinary meaning.

The Ponting case and one consequence mentioned above raises other issues: I’m not sure if this is the forum for it. I think in relation to a case coming before the courts in appeal a SC wrote that the “interest of the public isn’t the public interest”. That leads into an examination of public, state and govt and I said no politics so I’m not going there. But the interplay between law and the state and the govt and the public is a very central space.