A person in charge of the Historical and General Archive of the Bank of Spain consults documents in October last year. Julián Rojas
The preliminary draft of the Classified Information Law, which must replace the current Francoist Law on Official Secrets, goes beyond the “constitutional provisions” with its expansive nature and supposes a covert reform of the Transparency Law of 2013, according to the report of the Transparency Council and Good Government (CGTB), the independent administrative authority responsible for ensuring citizens' right of access to public information.
The report approved last Tuesday by this body warns that "the extensive relationship" of topics that can be classified according to the Government's text, and, therefore, prohibited from public knowledge, "exceeds, in whole or in part" the limits of national security and defense, which are "the legal assets whose protection against damage arising from unauthorized disclosure" justifies the law.
This happens with matters that can be classified as “top secret” or “secret” —including public security or foreign relations—, but to an even greater extent with the categories of “confidential” or “reserved” , ranging from the operation of public services to trade negotiations with other states.
In addition, the law contains a
broom clause
, which allows classifying "any other area whose safeguard requires a high degree of protection", which in the opinion of the CTBG is incompatible with the certainty and predictability that any legal regime must have.
For the Transparency Council, "the use of lists with such extensive material scope goes beyond constitutional provisions", which are limited to the security and defense of the State.
“Information classification can hardly be made an exception, recognizing the possibility of classifying in such vast and indeterminate domains,” he warns.
In addition to affecting other fundamental rights, such as freedom of expression and the right to information, this conception of secrecy can be "very onerous" for the right of access to public information, since "with its extension it interferes in a way relevant in its scope and purpose.
The body in charge of ensuring the application of the Transparency Law indicates that, although the draft bill claims to want to "outline the scope of the limits of the right of access to public information", in reality "it seeks a full displacement of the legal regime" that establishes said law, which "would cease to be applicable in all areas" affected by the legislation on classified information, which, as has been said, are extensive and indeterminate,
To avoid this, the Council proposes "limiting to the matters constitutionally provided for, security and defense", the matters that can be declared secret and introducing "general criteria on the suitability, necessity and proportionality of measures that affect constitutional rights".
Hundreds of authorities
The report not only criticizes the breadth of the list of matters that can be classified, but also "the extensive list of authorities" that can classify information as restricted or confidential;
an indeterminate number, but that adds up to several hundreds.
In addition, this power can be delegated, which potentially extends the list without a foreseeable limit.
With so many who will have the capacity to classify and so generic the criteria to do so, it will be very difficult, he warns, for a restrictive and respectful interpretation of citizens' rights to be imposed.
For this reason, it proposes that only the president, the vice presidents and the ministers with competence in security and defense have the power to classify an issue, while the remaining authorities only have the capacity to make proposals.
The report calls for any proposal to classify information to be accompanied by a "justification of the necessity and proportionality of the measure" and to be submitted to a report by a specialized body, which may be the National High Court, for classified information, or the CTBG itself for classification directives, which are generic in nature.
The Council also claims for itself the ability to urge the declassification of a reserved or confidential matter when, in the examination of a citizen's claim, "there are well-founded doubts about the justification of the classification or its maintenance over time."
The current preliminary draft only allows "people directly affected [by the secret information] or who prove a right or legitimate interest" to appeal to the Supreme Court, for which they have a period of two months from the time they become aware of the classification.
The report warns that "the complexity, costs and duration of the procedures before the Supreme Court can be dissuasive for the average citizen and reduce the practical effectiveness of the judicial guarantee."
That is why he asks that they can also appeal, in addition to the interested person and the CTBG itself,
The report praises that automatic declassification deadlines have been established, but draws attention to "their breadth" (50 years extendable for 15 more in the case of top secret), taking into account those that exist "in the countries around us and the fact that in some of them they have even been reduced in recent years”, for which it proposes to review them and “adjust them to the periods strictly necessary to preserve” the security and defense of the State.
Finally, he slips a complaint: “The paradox that such a complete and detailed sanctioning regime is foreseen for cases of improper disclosure of classified information and no type of responsibility requirement is contemplated for cases in which improperly denies [by the Administration] access to public information, even when there is a firm resolution [by the Council] that recognizes the right and is not executed.”
That is to say, those who disseminate information that he should not give are prosecuted and those who refuse to disseminate information that he should give are left unpunished.
The preliminary draft of the Classified Information Law, approved by the Government on August 1, is currently in the reporting phase by different Administration bodies;
among others, the Council for Transparency and Good Governance (CTBG), the General Council of the Judiciary or the Council of State.
Once this procedure is concluded, it will return to the Council of Ministers for its submission to Congress;
In theory, before the end of the year.
In the summer of 2023, it should come into force and definitively repeal the Official Secrets Act of 1968.
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