JIMOH Moshood, Nigeria’s Police Public Relations Officer, said on Thursday that the case the police have against detained Premium Times journalist, Samuel Ogundipe, is that of unlawful access to and publication of classified documents.
He passed this remark while addressing protesters who demanded for the release of the detained journalist at the Police Headquarters, Abuja.
“What we are saying is that even the Freedom of Information Act is limited when it comes to documents that are classified,” he had said.
“And if you have access to such a document, it is wrong; and that is the case we are investigating. The case the police department is investigating with respect to Samuel Ogundipe is that of theft and unjustified access to documents that are restricted and classified.”
Moshood added: “This document does not fall under what the Freedom of Information Act permits a journalist to have.”
But how true really are these statements? In this fact-check, The ICIR places them on a scale against available facts.
WHY ARE DOCUMENTS CLASSIFIED?
According to Nigeria’s Official Secrets Act of 1962, “classified matter means any information or thing which, under any system of security classification, from time to time, in use by or by any branch of the government, is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the security of Nigeria”.
The Act, in its very first section, also states as an offence transmitting “any classified matter” to an unauthorised person or obtaining, reproducing or retaining “any classified matter which he is not authorized on behalf of the government to obtain, reproduce or retain”.
Documents, according to the United Kingdom Government Protective Marking Scheme, may be classified as top secret, secret or official. Before 2014, we had top secret, secret, confidential, restricted, protect and unclassified.
Documents are classified because of reasonable likelihood to cause some level of damage to national security if there is unauthorised disclosure, and the classifier must be ready to justify the classification upon request.
HOW DOES A CLASSIFIED DOCUMENT LOOK?
The Official Secrets Act does not proceed to lay down a fundamental system of security classification nor stipulate how a classified document can be physically recognised. There are however general standards that may be applied by inference.
The 2001 Guide to Marking Documents of the U.S. National Imagery and Mapping Agency says marking classified documents has six purposes: to alert the holder that the item requires protection, advise the holder of the level of protection, show what is classified and what is not, show how long the information requires protection, give information about the origin of the classification, and provide warnings about any special security requirements.
It further provides that “there are three essential markings required on all information classified as national security information… [and they] will appear on the face of each classified document.” They are a. Classification Line (at the top and bottom, usually in red ink); b. Portion Marking; and c. Classification Block which consists of the identity of the original classification authority (OCA), agency and office of origin, declassification instructions, and reason for classification.
A look at former secret documents released under the Freedom of Information Act reveals these markings to be present. (S) represents secret, (TS) represents top secret, (C) represents confidential, (U) represents unclassified, and so on.
IGP LETTER TO ACTING PRESIDENT HAS NO MARKINGS
A leaked copy of the interim investigation report sent to the Acting President by the Inspector General of Police evidently has none of the aforementioned markings that suggest it to contain classified information. It is, by all indications, a typical letter.
If it is argued that the document is indeed classified, then reference may be made to Section 1(3)(a) of the Official Secrets Act which provides possible defences to the offence of transmitting or reproducing classified information.
It states: “In proceedings for an offence under subsection (1) of this section relating to any classified matter, it shall be a defence to prove that when the accused transmitted, obtained, reproduced or retained the matter, as the case may be, he did not know and could not reasonably have been expected to believe that it was classified matter.”
Therefore, in this case where Premium Times journalist, Samuel Ogundipe, is alleged to have unlawfully published classified information, it is the case that he could not have known as the document itself does not claim to be classified.
When Donald Trump became president of the United States, he wanted reporters who publish classified documents arrested by the Federal Bureau of Investigation (FBI). But according to this Forbes article by Anders Corr, publisher of the Journal of Political Risk: “This would be a break from past enforcement policies and would be an increase in the power of government relative to the free press in the U.S.”
He also wrote: “While it may technically be illegal to publish classified material, the Federal Government has generally not enforced laws against such publication by legitimate journalists when that classified material leaks from government sources.”
His view was supported by Supreme Court Justice Hugo Black—and the court generally—in the 1971 case of New York Times and Washington Post where it was ruled that the Nixon administration could not prevent the press from publishing leaked, classified Vietnam War documents.
James Comey, Director of FBI, was asked in 2017, and he replied that the matter was “probably beyond my ken”. But Jonathan Peters, a media law professor at the University of Kansas has said, for prosecution to be valid, the publication under scrutiny would have to result in “direct, immediate and irreparable damage” to the safety or interest of the state. Leaking classified information is, therefore, not automatically a crime in itself.
Finally, also instructive is that in 2013 the U.S. Justice Department said it was not going to bring charges against Julian Assnage, WikiLeaks founder, for publishing classified documents because “government lawyers said they could not do so without also prosecuting U.S. news organizations and journalists.”
POLICE CHARGE HAS NO MENTION OF ‘CLASSIFIED INFORMATION’
The charge filed by the Police against Ogundipe, released on Thursday by Premium Times, has also partly belied Police PRO Moshood’s claims. The nature of the crime committed, according to the document, is “criminal trespass, theft in dwelling house, and having in possession of police interim investigation report”.
While it claims that the document was stored “in the confidential registry of the State House, Federal Capital Territory”, the charge does not expressly categorise the document as classified.
From all indications, it is not true that the IGP interim report sent to Acting President Yemi Osinbajo was classified information. Unlike other classified documents, it was not marked with necessary classifiers. And if it is truly classified, then not only does Ogundipe have a defence under the Official Secrets Act, it might be rash for the government to take legal action on that basis alone.