23 November 2017
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Official Secrets Act covers more than just secret information: Experts

TODAY
14 Nov 2017
Kelly Ng

The recent case of a Housing and Development Board (HDB) officer who allegedly communicated confidential information to a journalist has shone the spotlight on the wide-ranging nature of the Official Secrets Act (OSA), lawyers and other legal experts said.

Chief of this, they say, is that the definition of what is commonly accepted as secret – sensitive information, images or documents that may compromise the workings of Government – is considerably widened under the Act.

OSA “covers more than just information that is secret”, media law experts pointed out. “As long as the information in the latter category has one of the connecting factors mentioned, such as if it has been obtained by someone due to his position holding office under the Government, then it will be protected by the Act even if it is not secret,” said Dr Jack Lee, who researches constitutional and media law issues.

In the HDB officer’s case, the invocation of the Act has received widespread attention, and has also raised concerns about whether it will have an impact on journalistic practices.

On Nov 10, Ng Han Yuan, 25, an estate manager with HDB’s resale operations section, was charged with allegedly sharing confidential information with Ms Janice Tai - a reporter from The Straits Times - on a resale portal which the board is developing. The case will be heard again on Dec 15. Ms Tai was given a stern warning by police. She had approached several parties with queries on the confidential information in July.

Public servants, said experts contacted by TODAY, must be mindful of the “very wide” and “sweeping” ambit cast by the OSA.

“Civil servants have to be mindful of their confidentiality obligations (under the OSA)… A lot of factors would likely have been taken into consideration before charges are brought, including the nature of the information and the person who leaked the information and his motives, (such as) whether they were careless and/or reckless and/or it was a deliberate breach,” said lawyer Daniel Chia, a partner in Morgan Lewis Stamford.

Dr David Tan, law professor at the National University of Singapore, reiterated that the Government is acting within the constitutional limits of national security when invoking the OSA.

Mr Chia added that every jurisdiction “has some form of legislation that functions like the OSA here”. “In Singapore, it was put in place for various reasons, including to protect national security, market sensitive information, or so as not to prejudice the Government’s ongoing operations,” he said.

Even in the United States for example, the Trump administration and its predecessor, the government of Mr Barack Obama, actively went after those who leaked information about the workings of government, including initiating criminal proceedings against some public officials for leaks to the press.

Still, Dr Jack Lee noted that in contrast to Singapore, the default position in some countries is that “governmental information should be publicly disclosed, and withholding such information is seen as the exception rather than the norm”.

He said: “A broadly-worded Act, however, may tend to disincentivise decision-makers from carrying out their duties meticulously, since the reasons for reaching a decision can be withheld. In the worst case, it can become a shield for wrongdoing as it makes it very difficult for people to access the information needed to hold the Government accountable.”

IMPACT ON JOURNALISM

In Singapore, media law experts and media practitioners were divided on the effects of the latest case on journalists.

This is only the second time in 25 years that the legislation has been used against civil servants who communicated information to the press.

In 1992, the Government launched legal action against five individuals — including then-director of the Monetary Authority of Singapore Tharman Shanmugaratnam, as well as Mr Patrick Daniel, then-editor of The Business Times, and reporter Kenneth James – after the growth rate for Singapore’s economy in the second quarter of that year was published in the newspaper before it was revealed officially. All five individuals were found guilty and fined. The courts could not prove that Mr Shanmugaratnam, who is currently Deputy Prime Minister, actually communicated the confidential data to economist Manu Bhaskaran at a meeting, but he was found guilty of “negligence”.

That case had a “chilling effect” on the media, “there was no question about that”, said Professor Ang Peng Hwa, who teaches media law and policy at Nanyang Technological University’s Wee Kim Wee School of Communication and Information.

Prof Ang expects that the effects will be similar this time around – journalists will be less likely to follow up on tip-offs that they receive, and will resort to writing cookie cutter stories instead.

However, Mr Chia felt that authorities had generally taken a “light touch approach” towards journalists who receive information that may be subject to the OSA. “This is likely because, as a journalist sits outside of the government machinery, they may not be aware what information is confidential or restricted. There is no such excuse for civil servants,” he said.

Professor Cherian George, who teaches media studies at Hong Kong Baptist University, expressed concern that the Government may be enforcing the OSA “far more strictly than before”.

The “modus operandi” for journalists has always been that it is “safe” to receive information from the Government that they are not authorised to possess, as long as they do not publish it, he said. Such tip-offs are rarely, if ever, cited as the only source in a story, he said. “You need to check with the relevant authority first. If the authorised source gives you a response, including a ‘no comment’, you go ahead with the story once you have enough facts. In very rare cases, the agency may mention the OSA, so you drop the story and that’s the end of the matter,” said Prof George, a former Straits Times journalist.

Mr Alan John, a former Straits Times Deputy Editor who is currently director of the Asia Journalism Fellowship, urged journalists not to be “paralysed”. “ I hope they won’t be…I can’t imagine that that’s what the government wants for media here, because nobody gains when the sour online crowd beats down the mainstream media and journalists regardless of the good work many do,” he said.

Some public servants will cite the OSA when reporters ask questions about issues which their agencies are not ready to discuss yet, but this should not be a stumbling block, said Mr John. “I hope that, as in the past, good reporters and their editors will press on regardless and pursue stories that need to be told,” he added.

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