What constitutes public interest?

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Dear Corruption Watch,

 

I am trying to understand how the law defines 'public interest'. It seems to vary according to who is championing it. For instance, the Public Service Act has a section that says an official can be transferred to another unit if it is in the 'public interest', which seems to happen even when (or especially when) a public official is busted for some kind of corrupt activity. And then in the draft legislation to protect state information a 'public interest' defense is anathema to the government. It seems that it's in our interest for criminals to be redeployed but not to be allowed access to a good deal of information in the hands of officials we elect. – Confused

 

 

Dear Confused

 

The term “public interest” is used in a wide variety of contexts in our law. Its meaning varies according to the context – there is no single definition of the phrase that applies in all contexts. At its heart is the idea of something being of benefit to the public – in other words, of benefit to all of us, rather than just to some individuals. 

 

Black’s Law Dictionary defines “public interest” as follows: 

 

1. The general welfare of the public that warrants recognition and protection. 

2. Something in which the public as a whole has a stake especial an interest that justifies governmental regulation.

 

For example, in many countries in the world, a litigant may only approach a court if the relief that she seeks is in her own interest. Our Bill of Rights provides that litigants may approach the courts where doing so would be in the public interest, in other words, for the benefit of the public. 

 

In the context of the Protection of State Information Bill, the debate is about whether the Bill should include a public interest defence to a charge of unlawful disclosure of classified information. This would mean that if someone is criminally charged for disclosing classified information, they will not be convicted if they can prove that the disclosure benefited the public. 

 

For example, if a local government official discovered a scam to profit from a school feeding scheme, disclosure of that knowledge would clearly be in the public interest. 

 

There is a difference between information that is in the public interest and information that which is interesting to the public. Topless photographs of a member of the royal family may be interesting to some members of the public, but publication of those photographs would not be in the public interest.  

 

At the time when a public interest defence was going to be included in the Bill, it was very narrowly worded: there would only be a defence against a charge of disclosure of classified information if the disclosure revealed criminal activity.

 

Though revealing criminal activity would clearly be in the public interest, there are many disclosures that would be in the public interest that would not fall into this category. We believe that “public interest” should be more broadly defined if a defence is included in the Bill. 

 

In the context of the Public Service Act, the transfer to another unit of a corrupt official would only be legally justified if, objectively, that decision means that the public would be better served than by dismissing him or taking other disciplinary measures. For example, the transfer could not legitimately be effected for the purpose of protecting politically well-connected individuals. 

 

Despite this, officials often attempt to justify their decisions by referring to legal provisions that appear to assist them, even if those justifications are unsound and would not stand up in court.  

 

Take a stand and report an incident of corruption. This article originally appeared in the Sunday Times Business Times on 25 November 2012.