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39 Law & Phil. 1 (2020)

handle is hein.journals/lwphil39 and id is 1 raw text is: Law and Philosophy (2020) 39: 1-34 © The Author(s) 2019 https://doi.org/ 10.1007/s10982-019-09359-1 ERIC R. BOOT* THE FEASIBILITY OF A PUBLIC INTEREST DEFENSE FOR WHISTLEBLOWING (Accepted 13 May 2019) ABSTRACT. It is commonly stated, by both whistleblower protection laws and political philosophers, that a breach of state secrecy by disclosing classified doc- uments 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 defini- tion 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. I. INTRODUCING THE PROBLEM Contemporary liberal democracies recognize the importance of cit- izens having access to government information. Transparency is of fundamental importance for an informed public debate as well as for democratic accountability, which is why many countries have free- dom of information laws. Nonetheless, few support Julian Assange's call for complete transparency and his rejection of legitimate secrets. Even NGOs promoting transparency such as Transparency Inter- national are prepared to allow for exceptions when national security and official secrets are involved.' At times, it is necessary and 1 Mark Worth, Whistleblowing in Europe: Legal Protections for Whistleblowers in the EU. (Transparency International, 2013), p. 89. Available at: https://www.transparency.org/whatwedo/publication/ whistleblowing_ineurope_legalprotections_for_whistleblowers_in_the_eu.

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