Abstract
It is commonly stated, by both whistleblower protection laws and political philosophers, that a breach of state secrecy by disclosing classified documents is justified if it serves the public interest. The problem with this defense of justified whistleblowing, however, is that the operative term – the public interest – is all too often left unclarified. This is problematic, because it leaves potential whistleblowers without sufficient certainty that their disclosures will be covered by the defense, leading many to err on the side of caution and remain silent, depriving the public of much-needed information. Failing an agreed upon definition of the public interest or a process to determine it, judges’ applications of the public interest in whistleblowing cases have been criticized for demonstrating ‘judicial idiosyncrasy’. The present paper, therefore, sets out to (1) provide some clarity concerning the concept of the public interest, and (2) to ascertain the extent to which a public interest defense for whistleblowing is feasible and desirable.
Highlights
By both whistleblower protection laws and political philosophers, that a breach of state secrecy by disclosing classified documents is justified if it serves the public interest
The problem with this defense of justified whistleblowing, is that the operative term – the public interest – is all too often left unclarified. This is problematic, because it leaves potential whistleblowers without sufficient certainty that their disclosures will be covered by the defense, leading many to err on the side of caution and remain silent, depriving the public of much-needed information
For example, that unauthorized disclosures constitute a breach of promissory obligations and are, wrongful.[5]
Summary
Contemporary liberal democracies recognize the importance of citizens having access to government information. When a whistleblower discloses classified government documents, she is, in effect, arrogating to herself a superior say in the organization of the polity by usurping the power to decide what is and what is not a legitimate state secret, whereas this is properly the prerogative of our democratically elected officials.[9] This is what Candice Delmas has called political vigilantism.[10] As Rahul Sagar puts it: ‘[W]hen unauthorized disclosures occur, vital decisions on matters of national security are effectively being made by private actors, an outcome that violates the democratic ideal that. Political philosophers,[19] legal[20] and public administration[21] scholars, whistleblower protection laws,[22] national[23] and international[24] guidance documents, courts25 – all agree that a breach of state secrecy by disclosing classified documents is justified if it serves the public interest.
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