The declassification of files of 23-F or the GAL will remain in the hands of the Government or the Supreme

taketonews

  • The veto will not be lifted automatic and massive of all the documentation prior to the approval of the new law, given that it is “huge“

  • Papers listed as top secret will be hidden 50 years (65 maximum); secrets, 40 years (plus 10 extendable); the confidential ones, from 7 to 10, and the restricted ones, from 4 to 6

The new classified information law, which will replace the Franco’s official secrets law of 1968, start walking. This Monday afternoon the Council of Ministers, in its last meeting before the summer break, approved the preliminary draft of a rule that will exceed a “vestige” of the dictatorship and will standardize Spain with other consolidated democracies, according to the reading of the head of the Presidency, Félix Bolaños. The text establishes document protection categories, declassification deadlines, regulates the right of access of deputies or citizens. But it also sanctions that all files prior to the approval of the new law, all those produced from the dictatorship until today, will remain as they are, hidden, unless the Government decides to make them known or the Supreme Court determines it after an affected party has seen their request for information rejected. That is there will be no automatic and widespread declassification of all state secrets prior to the new legislation. Taking it to a specific case, the papers related to the 23-F or the GALas requested by the usual allies of the Executive.

And it is that Pedro Sánchez has encountered strong internal and external opposition to his draft law. Internal, because United We Can considers the period of 50 years (extendable) in which the most sensitive secret documents remain classified. And external, because the partners of the Executive reject the wording of the rule, which still has a way to go until it arrives at the Cortes for parliamentary processing. According to Bolaños, the deadlines set forth in the draft are “reasonable” and comparable to those of other countries in our environment, for which he trusts that the norm will be approved by a “resounding parliamentary majority”, although it is open to modifications in the articles, both before taking it to Congress and after. The law is expected by the minister to have it approved at the beginning of 2023 and it will enter into force six months later.

The draft identifies four classification categories: top secret, secret, confidential Y restricted (now there were only two steps, secret and reserved), and assigns each a different level of protection, depending on the danger that their unauthorized disclosure or improper use may pose to national security or defense. Only the Council of Ministers will be able to classify files as top secret or secret, while marking documents as confidential or restricted can be done by a cast of authorities valued —such as the ministers, secretaries of State and undersecretaries or the heads of the CNI, the Department of National Security, the Nuclear Security Council and the Directorate of the Police and the Civil Guard—.

The text establishes, as Bolaños explained, the procedures for classify, declassify and reclassify information with “full guarantees”. And, for the first time in Spain, automatic declassification is introduced once certain periods have elapsed. The 1968 law allowed that the secret papers remain eternally out of the public domain. What terms are included? For top secret qualified media, it will be 50 years (extendable others fifteen); for information classified as secret, 40 years (extendable others 10); for the confidential, between seven and 10 yearsand for the restricted one, between four and six. Deadlines, defended the minister, in the average of the countries of our surroundings. Declassification may also be linked to the occurrence of an event future, certain and foreseeable, such as the death of a person or the end of a war. In addition, it is expected that the same authority that classified a file can lift the veto at any time, ahead of time, if there is no danger to national security or defense.

“Broad” criteria of the ministries

The head of the Presidency maintained, also to defend himself against the first attacks on the new law, that Spain will be in line with other legislation “more advanced“. France, the United Kingdom, Denmark or Belgium do not have deadlines to declassify documentation, while Sweden sets the limit at 70 years. Germany sets it at 30 years, but for papers cataloged both top secret and secret and confidential. And other countries have lower limits but with “many exceptions” or with limited extensions but of an indefinite nature. In short, they are terms, he defended, “reasonable”, “reviewable by the authority” at any time, “comparable” with other countries in our environment, EU and NATO partners .

But what happens to the information classified prior to the entry into force of the new law? That is one of the potential problems of the text, in the eyes of the partners. There will be no automatic declassificationgiven the volume “huge“of reserved documents, according to Bolaños. Volume that he did not quantify.

And it is that since it was enacted the 1968 lawretouched shortly before the approval of the Constitution, the criterion used by the ministries has been “large“, lax, and therefore it is technically impossible for the Government to proceed to lift the veto in an “indiscriminate” manner. So it is decided to “keep all the documentation how is“, unless ex officio the competent authority (that is, the Government) decides to declassify papers —Bolaños cited the example of Defense, which became public domain all military archives prior to 1968— or at the request of people “directly affectedwhich must indicate their interest in the required information, the reasons that justify the requested declassification and identify in detail the information that is requested “to know. The requested ministry must ensure national security and defense at all times.

If the Government denies it, with reasons, then The affected party may go to the Third Chamber of the Supreme Court, that of the Contentious-Administrative. That is, there will be a jurisdictional control. The potential problem with this formula is that papers that its existence is not even known or that they are not claimed by any affected party. In addition, it is presumable that this provision collides with the partners. The PNV, the one that has most raised the banner of the reform of the 1968 law, provided for an automatic declassification of all files that they had fulfilled the terms (of 10 and 25 years, in their proposal).

The character of the National Authority

The bill also regulates the bodies with competence in the matter. At the top, the National Authority for the Protection of Classified Information, which will depend on the Ministry of the Presidency, headed by Bolaños. Power is transferred, therefore, from Defense to the Presidency, as it is a department “more transversal”.

The National Authority will protect and treat the information classified as top secret, secret and confidential that is produced in Spain, and also all that information that comes from other states or organizations (such as NATO), “whatever its category & rdquor ;.

Its functions include guaranteeing compliance with national regulations and international obligations, providing technical advice to the Government, coordinating the new units and assessing the suitability of the people who should have access to information classified as top secret, secret or confidential in order to issue them the qualification for the professional treatment of information.

In addition, the right of access to locked documents is regulated for the first time. By various ways. On the one hand, deputiesthrough the congressional official secrets commission. On the other hand, any person who considers himself affected, through a resource to be studied by the Contentious-Administrative Chamber of the Supreme Court. Guarantees are also introduced for the treatment, protection and custody of classified information.

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The draft incorporates a sanctions regime in the event of improper access or dissemination, which ranges from 50,000 and three million euros, apart from the resulting criminal responsibilities. It will be considered a very serious infraction, for example, the dissemination by any means of a top secret or secret or access to that information without having the necessary authorization or delivering those papers to foreign powers when there is no international treaty for the exchange.

Bolaños did not prejudge who the government will approach to agree on the law. He aspires to improve it in the parliamentary process and achieve a majority “resounding”. Executive sources indicated that with the PP it is difficult to know what to expect. Their decisions, they alleged, are “inscrutable & rdquor ;.



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