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Chapter Nine examines rights of access to state held information, also known as freedom of information law, as well as unauthorised disclosure of such information. As this Chapter explains, the European Union's direct and indirect transparency obligations on member states to disclose information are subject to national security, public order and privacy exceptions. The EU Charter of Fundamental Rights and other EU legislation also contain significant rights of public access to information held by EU institutions. The Chapter discusses the development of positive rights of access to state held information as well as principles concerning unauthorised disclosure of state information and the protection of journalists’ sources under the ECHR Article 10 right to freedom of expression. It then looks at international law, which contains few positive obligations to disclose state held information, aside from the transparency disciplines of the GATT and GATS.

This chapter presents an interview with Michael Mann, who talks about his 1999 film The Insider. Starring Russell Crowe and Al Pacino, The Insider is not only a docudrama about Big Tobacco, Big Television and a whistleblower who upends both; it is also a docutragedy about men who face, too late, that they are bigger than the jobs corporate America lets them do. It is a ravaging account of the hell their business dealings wreak on their bonds with friends and family. The travails of upper-middle-class life and corporate careers are often fodder for movie comedy; The Insider approaches them without condescension or preconceptions. In this interview, Mann discusses his views about smoking; how he came to know Lowell Bergman, the character played by Pacino in The Insider; his purchase of Marie Brenner's Vanity Fair piece; the collision between Lowell's world and that of Jeffrey Wigand, the character played by Crowe; and Pacino and Crowe's performances in the film.

National security policy has changed little from the Bush to the Obama administration. Programs such as rendition, military detention without trial or legal counsel, drone attacks, offensive cyberweapons, whistleblower prosecutions, covert operations, and NSA surveillance all have been continued or expanded. The reason is to be found in Walter Bagehot’s 1867 theory explaining the operation of the English Constitution. In the United States, “double government” comprises the public, Madisonian institutions—Congress, the courts, and the presidency—and a concealed network of intelligence, military, and law enforcement managers, tracing to the Truman administration, who largely define security policy. While not invidiously motivated or conspiratorial, the network does operate largely immune from constitutional constraints. The façade of double government is driven and sustained by the electorate’s abiding political ignorance.

This chapter examines depth in oversight. It brings into focus the new oversight regime instituted by Congress in the wake of the Nixon impeachment and considers its effect in instigating impeachment charges against President Trump. Whistleblowers and inspectors general safeguard congressional interests in administration and qualify hierarchical control by the president. Activated by Trump’s backchannel dealing with the government of Ukraine, a whistleblower and an inspector general brought the relationship between administrative depth and congressional power out into the open. During the House’s impeachment hearings, congressional provisions for oversight split the executive branch, pulling administrative subordinates into Congress’s orbit and pitting them against the president more explicitly than ever before. Congress depended on the administrators who were willing to come forward, and it provided them a forum for airing their own ideas about good government.

The legal, political, and technological developments of the past twenty years have rendered us more reliant on whistleblowers even as the developments have made whistleblowing more difficult and more hazardous. To promote informed public debate about national security and to preserve the connection between democratic consent and government policy in this sphere, we should extend legal protection, in some circumstances, to government insiders who responsibly disclose official secrets without authorization. Affording leakers a “public value” defense against prosecution would have benefits beyond those usually cited. It would, among other things, reduce the disincentive to socially beneficial leaks, lend legitimacy to Espionage Act prosecutions, more closely align our legal regime with widely shared intuitions about moral responsibility, and restore the courts to an appropriately central role in protecting the public’s access to an essential channel of information.