I was reading a draft of David Pozen’s terrific article, forthcoming in the Harvard Law Review, about “The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information.” With my bent of mind, though, I was reminded of this:
Sir Humphrey Appleby:
“What is the difference between a breach of the Official Secrets Act and an unofficial briefing by a senior official? The former is a criminal offence. The latter is essential to keep the wheels turning. Is there a real objective difference? Or is it merely a matter of convenience and interpretation? You, prime minister, will inevitably argue that it is up to you to decide whether it is in the public interest for something to be revealed or not. This would be your justification for claiming that a leak … which must have come from an official is a breach of the act. However, this raises some interesting constitutional conundrums.
1. What if the official was officially authorised?
2. What if he was unofficially authorised?
3. What if you, prime minister, officially disapprove of a breach of the act but unofficially approve? This would make the breach unofficially official but officially unofficial. I hope this is of help to you.”