The Council of Ministers will take on Tuesday the first step to fulfill the promise that Pedro Sánchez made on February 26, in his last question to the Head of the Government after more than two decades as a deputy. After Esteban reminds him that “it is not to receive a Francoist law” of official secrets, Sánchez replied: “Count that in this legislature we will modify it.” For changing a rule dating from 1968, in full dictatorship, with tweaks of 1978, before the Constitution. The PNV has presented four initiatives to reform it, which have always been approved to process, to then run in parliamentary processing. In the last legislature the government had a text ready, but it remained in a drawer when the courts dissolved.
The draft of the classified information law to which the Council of Ministers will give the green light presents some last -minute novelties. The main one is the survey of the secret of all the documents classified 45 years or more; That is, all the previous ones to 1981, which includes the Francoist dictatorship and the transition. Those after that date will be declassifying as the deadlines provided for in the new law comply with: up to 60 years for those of “high secret”; 45 for the “secrets”; between 7 and 9 for the “confidential”; and 4 or 5 for the “restricted.” According to a transitory provision of the text, priority will be given to information related to “serious human rights violations.” Only in the case that “motivated and exceptionally that the threat or damage to National Security and Defense is exceptional”, a document of that time and this decision may be reviewed annually.
Until now, the government had refused to make a massive declassification of the secret documents of Franco and the transition, claiming that it would be a huge bureaucratic task. The text prepared in the previous legislature indicated that this declassification had to be paid attention, ex officio, at the request of a “natural or legal person directly affected or that can justify a professional interest.” In addition, the applicant had to explain the reasons that justified his request and “identify detailed” the information he wanted to declassify, which was impossible if the document was not known in advance. With the new writing of the text these obstacles are eliminated. “The decision not to declassify, which will be exceptional, must be motivated,” he adds.
These are the most prominent aspects of the draft, with the changes introduced after the report that the State Council issued last Friday:
Four classification categories. Spanish legislation adapts to NATO and EU standards and classifies secret information into four categories, depending on whether its unauthorized dissemination can cause “an extremely serious threat or damage for national security and defense” (high secret), “serious” (secret), “relevant” (confidential) or “of some kind” (restricted). Only the Council of Ministers can classify information such as “High Secret” or “Secret.” Autonomous communities with their own police or penitentiary competences can propose the classification of information from their respective scope. “Information related to serious human rights violations may not be classified,” underlines the preliminary draft.
Fines of up to 2.5 million euros for revealing secrets. The text provides for the imposition of fines between 800,001 euros and 2.5 million to whom it disseminates or reproduces, by any means, information classified as “secret” or “high secret”. Due to the dissemination of confidential information, the fine can reach 800,000 euros and for the restricted, 30,000. This sanction can be imposed not only to public officials and positions who know the information classified by reason of their work, but also to any natural or legal person who has “fortuitous access” to it and allows “action or omission to be disseminated”. The law does not exclude that journalists and media responsible may be sanctioned, since it applies “to any natural or legal person regarding improper access and dissemination of classified information.” However, the text emphasizes that, when graduating the sanctions, “the exercise of the right to freedom of information” will be taken into account. The last word, if there is an appeal, the judges would have.
Previous censorship? One of the draft provisions can be interpreted as an open door to prior censorship, prohibited by the Constitution. It is article 46 that quotes, among the provisional measures, the possibility that “the competent authority motivatedly agrees to the cessation of the alleged offending activity”; That is to say, that the secret information is disseminated, when this decision is adopted in a preventive basis, before the sanctioning file, he adds, “it must be based on the existence of an unapolable urgency for the provisional protection of the interests involved,” he adds.
Automatic declassification. Faced with the current law, which makes the secrets of State in eternal, not to anticipate an expiration for its classification, the great novelty of the new norm is that it establishes automatic declassification transcurred certain deadlines. The qualified information of “High Secret” will be public at age 45, “being able to extend exceptionally and motivated for 15 more years”; up to a total of 60. The “secret”, for 35 years extendable to 45. The confidential, between seven and nine years not extendable; and the restricted, between four and five not extendable. Information from other international states or organizations will not be subject to automatic declassification. In addition, information may remain secret indefinitely if it is appreciated, “motivated and exceptionally”, that there are enough reasons to classify it again; that is, to restart the aforementioned deadlines. The proposal of law presented by the PNV in Congress requested the declassification of official secrets within 25 years, with an exceptional and motivated extension of 10; and that of the subjects qualified as reserved in 10 years.
Bolaños, ‘Guardian of the Secrets’. The Ministry of Presidency, which is directed by Félix Bolaños, will be responsible for protecting and treating all the information classified as “high secret”, “secret” and “confidential” in the hands of the government. The National Information Authority classified, until now attached to the National Intelligence Center (CNI), under the Department of Defense, will be transferred to the Ministry of Presidency, Justice and Relations with the Courts. Among its functions is not only the management of the corresponding records and databases, you can also grant or deny security enabling so that people and companies can access classified information and certain establishments are suitable for guarding it. In addition, it will be in charge of the exchange of secret information with other countries or international organizations, such as NATO, the EU or the European Space Agency.
This reform will mean transferring the National Office of Security (ONS) to La Moncloa, endowed with a hundred agents, who must decide if they change their destination within the CNI or leave the secret service to join the Ministry of Presidency. Government sources admit that initially this move can generate a problem, but they claim that they will be solved over time and argue that in most countries the National Security Authority is in an independent ministry of those who work the most with classified information: defense, interior and exterior.
The supreme has the last word. If the text is approved without changes, the judges may no longer go directly to the government to request the declassification of documents, but must do so to the Contentious-Administrative Chamber of the Supreme Court, which in turn will claim them to the Executive. If this refuses to declassify them, the magistrates of the High Court may examine the secret documentation, “keeping absolute reservation of the content” of the same, and will decide must be referred, in a total or partial way, to the court that claims it and under what conditions.
