To Leak or Not to Leak?

Last Thursday, anti-terrorism police in the UK arrested the opposition minister for immigration, Damian Green (http://www.guardian.co.uk/politics/2008/nov/29/whitehall-damian-green-civil-servant). He is suspected by the police of ‘conspiracy to commit misconduct in public life’, having published documents leaked to him by a junior civil servant. That official was himself arrested on 19 November, and has been suspended from duty. We should expect that many other such officials are now asking themselves whether, if they come across some document which they believe is a matter of public interest, they should leak it.

Such leaks are in effect equivalent to civil (that is, non-violent) disobedience: breaches of the law committed in the name of the public interest. Since most people accept that, ordinarily, there are strong moral reasons to obey the law, such disobedience is justified if and only if the moral reasons in favour of disobedience are stronger still.

For this reason, it is commonly suggested that those contemplating civil disobedience should first pursue any legal means at their disposal before breaking the law. So perhaps the junior official in the Green case should first have brought his concerns to a superior, or several superiors.

If they had refused to act, would the leaking then have been justified? In effect, such  a leak would have been an overt, non-secret act, since the superiors would have known the source. And it might be thought unfair that the official should have to pay the price of legal punishment and the loss of his job for an act committed, in good faith, with the public interest in mind. But publicity is generally considered extremely important in civil disobedience. Indeed, some definitions of civil disobedience require publicity (so the ‘civil’ is understood to mean something like ‘carried out openly in the civic or public sphere’). This has various advantages. First, the message of the disobedience will attract more attention. Second, the motives of the disobedient individual are less likely to be suspected. Third, disobedience is far less likely to be entered into insincerely or without serious reflection. And, finally, partly because of its greater rarity, disobedience is likely to arise only in matters of great significance. One of the problems with a culture of frequent leaks is that the issues that really matter are less likely to be picked up and acted on.

Of course, there may be a case in which an official comes across a matter of great public interest and decides to leak information secretly on the ground that further such information is likely to become available and secret leaking now is the only way to enable the leaks to continue in future. But even in such a case one might hope that the official intends ultimately to make his or her disobedience public.

Liberal government depends on a culture of public trust, and part of that culture consists in trust between the legislature and the executive, understood to include the civil service. A culture of distrust brought about through widespread leaking, especially in a context where many disclosures are anyway required under freedom of information legislation, may well be more damaging than at least certain harms left undisclosed. For that reason, a civil servant inclined habitually to leak should be encouraged to step back from trying to assess the harms and benefits of any particular leak, and consider her actions in the light of the practices of government as a whole. And if she does come across information that, on reflection, she is convinced it is clearly in the public interest to make known, she should seriously consider first approaching her superiors and then going public.