Openness and the Classification Law

The government of Oman operates through a culture of secrecy, where everything is assumed to be confidential unless proven otherwise. This culture restricts the ability of the government to be truly open, and substantially limits the flow of information between and within government entities. This secrecy is a result of a number of factors, such as the lack of proper governance structures for decision-making within most government entities, the unjustified fear around any security-related issue, and the frequently misunderstood Law on the Classification of State Records and Governance of Protected Places (the “Classification Law”).

The Classification Law sets the rules for classifying government information into four categories: Top secret, secret, restricted, and confidential. According to this law, a record must be classified as “top secret” or “secret” if it contains highly sensitive government information such as information relating to the safety of the state, war, military capabilities, security, or public order; a record must be classified as “restricted” if its disclosure leads to economic or administrative difficulties for the country or harms the reputation of a public figure; and a record must be classified as “confidential” if it generally contains information that the government prefers not to disclose or information relating to administrative or employee affairs. If a record is deemed to be classified, this law requires government employees to obtain the permission of the head of the government official heading their institution before they disclose such record. If a person discloses a classified record without permission, such person may be punished with imprisonment for up to five years and fined up to 3,000 Rial Omani.

As a matter of principle, having a law such as the Classification Law is extremely important for any government as confidentiality is necessary for the protection of vital security interests, the preservation of the integrity of certain commercial deals that the government enters into, and the protection of the personal data of individuals who work for, or deal with, the government—the latter being especially important for Oman, since we do not have a data protection law until now.

However, employees of the Omani government regularly over-classify government records in a manner that adversely affects the open data goals that the government aspires to achieve. This is a result of a number of reasons relating to the way this law has been drafted and interpreted.

Firstly, the scope of the four classifications provided in the law is vague and overly wide to an unjustifiable degree. For example, negotiations of international agreements that Oman holds with other countries are considered “top secret”, i.e. the highest possible classified degree, even though the majority of international agreements that Oman negotiates relate to general matters such as taxation, investment protection, and civil aviation—all of which are matters that should be shared with the public as these negotiations develop to improve civil participation and to ensure that the interests of the private sector are adequately represented in these negotiations. It is likely that the government intended to deem international agreements relating to military or security arrangements as classified, but the current drafting of the law is wide and encompasses any negotiations. Other classifications are also problematic for different grounds. For example, records relating to “administrative affairs” is classified as confidential, without providing any further clarification as to what this means. Is the number of vacant beds in a hospital an administrative affair? Are statistics on the number of users visiting the website of a ministry an administrative affair? Is the average number of students in government school classrooms an administrative affair? Anything can be considered an administrative affair, and given the severe criminal punishments associated with unauthorised disclosure, it is unsurprising that government employees would over-classify the records in their position and refuse to disclose them due to the vague language of the law.

Secondly, the underlying logic of the Classification Law is that information that does not fall under any of the four classifications is deemed non-classified, and therefore it may be shared without restrictions with anyone. However, the law does not explicitly acknowledge this concept, and as a result, many government entities do not have a system to explicitly identify a document as one that is open to the public. While this might seem like an obvious concept to fathom, a risk-averse government employee would argue that there is no article in the law that says that he can classify a record as being “public”—and this is true, it is merely an assumed basic concept. From a practical point of view, a typical government employee would not consider that a record does not have the label “confidential” on it as unclassified, instead, he would think that the person responsible for classifying it has not gotten to do that yet. Due to the lack of a “public” classification, government employees have no written instructions to follow for labelling a document as such.

Thirdly, there is a misunderstanding in regard to what the law actually prohibits. The law simply prohibits a government employee from disclosing a classified record without permission from the head of the government entity in question, but does not put any restrictions on the ability of the head of the government entity to disclose classified records or make them public. For example, if we do accept that all records relating to “administrative affairs” are classified as confidential under this law, a minister has the authority under this law to order to have this record published freely on the internet as open data. Theoretically, this makes all the restrictions imposed by the Classification Law easy to overcome as the head of the government entity can simply determine to remove the restrictions from all classified records. However, in reality, the majority of government entities in Oman do not have any internal rules to determine the cases in which the confidentiality of government records can be waived, and have no rules for classification outside those found in the law itself. So if the law says that document (x) must be classified, on what grounds would a minister make a decision that it should be released to the public?

The Classification Law imposes real restrictions on the ability of the Omani government to make its data open to the public, but some of these restrictions can be easily overcome by introducing small and specific amendments to the law. First of all, a new category for “public” records can be introduced to explicitly instruct government employees to use this classification if the record in question does not fall under any of the other categories. Secondly, the scope of the four classifications can be revised by removing vague and unnecessary topics such as the concept of “administrative affairs”. That being said, the problem regarding the misunderstanding of the prohibition in the law and the lack of guidelines regarding the declassification of classified information is more challenging to tackle. A first step should involve reconsidering the language of prohibition used in the law and re-writing these provision using a permissive language that focuses on the ability to disclose by a decision by the minister. However, true meaningful change can only happen if the government accepts the necessity to strike a balance between the need to protect classified government information on one hand, and the importance of openness on other hand, as that will enable making the government more efficient, creating opportunities for the private sector, empowering civil society, and enabling academics and researchers to access the information they need to find solutions to the problems facing our society.