The Francoist Official Secrets Law, still in force, establishes that only the Council of Ministers and the extinct Joint Chiefs of Staff (current Defense Staff) are the competent bodies to assign the classification of “secret” to public information. . Five decades later, the coalition government has launched the processing of the new Classified Information Law that, among other things, decentralizes this power in fifteen organizations. Each of them will also have to create a “Classified Information Unit” with qualified personnel to receive, classify and safeguard the documents. All of them will be controlled by the Ministry of the Presidency, based in the Palacio de la Moncloa.
The Government proposes that official secrets can remain classified for more than 50 years
This is stated in the preliminary draft of the norm, approved this Monday by the Council of Ministers and to which elDiario.es has had access. The text, which now faces a long legislative path that could substantially modify its content, exclusively grants the Council of Ministers the power to declare information as “top secret” or “secret” (maximum degrees of classification). These two categories are the most protected: the first involves a period of 50 years, extendable for 15 more by decision of the same body. The second, 40 years plus 10.
But the law expands the list of “authorities” with the ability to classify documents within the other two ranges (“confidential” and “restricted”, between four and 10 years, depending on the case), each within its powers: from the President and the different members of the Government up to the subsecretaries, the director of the CNI, the chiefs of staff and the heads of the Nuclear Safety Council, the delegations of the Government, the Department of National Security, the National Police or the Civil Guard, as well as the autonomous police authorities, among others.
If the law is approved in its term, these authorities will be able to decide everything necessary in terms of qualifying documents in their respective jurisdictions. From approving or rejecting the “qualification proposals” to modifying them, declassifying them and even dictating “the instructions that serve as a reference for the adequate classification of the information”.
And who will have to execute all these new performances? The law provides for the creation of so-called “Classified Information Units”, whose mission is to intervene in “the classification, reclassification and declassification procedure”. In addition, says the text, “they will exercise other functions expressly attributed in the law, such as the protection and custody of classified information.”
This last sentence also points to another significant change in the regulations. Each body must keep its own documents. In order to do all this, the law establishes the existence of a national authority for the protection of classified information, which falls under the Ministry of the Presidency, which today is directed by Félix Bolaños. It will be this department that assesses “the suitability of the people who should have access to classified information in the ‘top secret’, ‘secret’ or ‘confidential’ category, as well as the personnel of the classified information units” through “the corresponding personal security clearance”.
The President of the Government, free access
The law also establishes the procedure for classifying a document. Basically, there will be two formulas. The first is that a law defines information as “secret” or “top secret”. In this case, the documents can only be declassified when the time defined for the category has elapsed or by means of another law of equal rank.
The second formula establishes a process that, depending on the degree of qualification, must be ratified by the Council of Ministers or by the competent authority. In any case, the proposal document must be motivated and will also be registered.
Regarding declassification, two systems will also be established. The first, that the maximum established period expires, in addition to the hypothetical extension that may be agreed. The declassification “may also take place as a consequence of a certain, future and foreseeable event,” the text points out.
Classified information may be consulted by certain people, provided that there is a “need to know” and that it is “adequately” justified. But not everyone will be able to access it: only those who are “in possession of a personal security clearance, a company security clearance or an authorization, as appropriate.” The President of the Government is exempt from this rule, and he will be able to access any document with the classification it has.
The rule also provides that the deputies, but not the senators, can consult certain documentation “classified in any category” within the parliamentary commission authorized in this regard and that in this legislature has only met once, after the scandal of the software of espionage Pegasus and the subsequent dismissal of the director of the CNI. The Supreme Court may also determine that a document is misclassified or its release in certain circumstances.
“Improper” access to classified information
The law also indicates a sanctioning regime that implies infractions of up to three million euros. These fines, explain sources from the Presidency, will be aimed at those who transmit a secret document by any means, but the media and journalists who can publish information as a result of accessing these classified documents will be excluded, since this would violate a “fundamental right ”.
Very serious offenses are intended for the dissemination of documents classified as “top secret” or “secret”. But also to those who, in an “accidental” way, have had access to this type of information and have not delivered it to a public official within 48 hours. In addition, if information in these categories is compromised, or the person in charge of ensuring its security believes so, the official must notify the national authority. If he does not do so, he may also be sanctioned.
The text of the bill is not only signed by the Minister of the Presidency, Félix Bolaños. Also the heads of Justice, Pilar Llop; Defense, Margarita Robles; Foreign Affairs, José Manuel Albares; and Interior, Fernando Grande-Marlaska.
But the proposal now begins a long way. First, it must go through the different consultative bodies of the State. Later, it will return to the Council of Ministers to approve the final project, which may or may not include what is reflected in the different opinions that these bodies issue. In addition, this so-called “second round” will also allow collecting the proposals that have already been made by United We Can. The draft of the law has been directed by the socialist wing of the Government and the minority partner, as he has denounced, not only has not been a participant, but also rejects some points such as the declassification deadlines.
Then will come the parliamentary procedure: Congress and Senate. There the Government will have to gather sufficient support to carry out the law. And, from the start, it does not seem to have those votes. The usual allies (PNV, ERC, Bildu, etc.) have already expressed their doubts about some specific points. In addition to the aforementioned deadlines, one of the elements that the partners liked least is that all the documentation prior to this new regulation, qualified according to the Francoist regulation of 1968, will be left out of the updated parameters. And it will be the Council of Ministers and the Supreme who determine what happens to all the information produced in the last years of Francoism, during the Transition and even after. For example, regarding the GAL, the 1983 coup or the archives of the macabre Directorate General of Security, among many others.
As for the opposition, the PP has already criticized the fact that the Government has not agreed with them on the drafting of the draft, but has been willing to negotiate and support the rule as long as the PSOE dispenses not only with the pro-independence or nationalist parliamentary allies, but also from the coalition partner, United We Can.
Be that as it may, the process will hardly be resolved before the summer of 2023. The President of the Government, Pedro Sánchez, assured this Tuesday that the general elections will be held “in December”, so it will be a next Executive of uncertain composition that will begin to implement a regulation that will close another window on the Spanish dictatorial past.