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Report No. 88

10.32. "Secrets of State" and "Official information".-

In the same formulation, the documents were divided into two categories, namely secrets of State and official information, respectively. A "Secret of State" is a governmental secret relating to the national defence or the international relations of the United States. "Official information" is information within the custody or control of a department or agency of the Government, the disclosure of which is shown to be contrary to the public interest. Although the category of secrets of State (danger to national defence or international relations) separately mentioned in this formulation was probably derived from the decision in U.S. v. Reynolds, it should be mentioned that under that decision the judge must in every case determine whether the circumstances are appropriate for the claim of the privilege.

Further (as already mentioned above), the later decision in U.S. v. Nixon shows a more liberal approach. That decision held that the interest of accused Watergate conspirators in marshalling evidence in their defence outweighed the President's claim of privilege. Although the decision in U.S. v. Nixon related to protection claimed in high level communications in the executive department and did not relate, as such, to national defence, it would appear that the courts in United States would not now leave the question of privilege entirely to the discretion of the executive.

Governmental Privilege in Evidence - Sections 123, 124 and 162 of the Indian Evidence Act, 1872 and Articles 74 and 163 of the Constitution Back

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