Anonymous and not so anonymous informants who dare to reveal corrupt practices in Public Administrations, especially the most serious, they will have it a little more difficultl If the preliminary draft of the Classified Information Law goes ahead, the norm that intends to update the Francoist Official Secrets Law of 1968. It is about the sanctioning regime, which appears in the text but that the Government forgot to comment when it presented it after the last Council of Ministers. This text is still pending final approval by the Council of Ministers before it is submitted as a bill to Congress.
According to the content of said draft, (consulted by Public Y provided in full at the end of this information), the fines for violating the rule would vary between 50,000 and three million euros, depending on the classification of the information (from highest to lowest rank: “top secret”, “secret”, “confidential” and “restricted”).
Sanctions (article 42)
In the case of very serious infringements, a fine of 1,000,001 to 3,000,000 euros will be applied.
In the case of serious infringements, a fine of 50,001 to 1,000,000 euros will be applied.
In the case of minor infractions, a fine of up to 50,000 euros will be applied or warned. The warning will only be imposed if there had been no fraud and in the last two years the person responsible had not been sanctioned, by means of a firm administrative resolution, for committing any of the offenses provided for in this law.
In this way, the dissemination of information classified as “top secret” or “secret” could entail an administrative penalty of up to three million euros. In Spain the crime of revealing secrets already exists in article 197 of the Criminal Code, modified in 2015, and which includes a sentence of up to five years in prison in its most serious form.
It will not only affect those reporting crimes that are discussed in the Public Administrations with access to sensitive information protected by this law, but it will also may affect journalists who disseminate “by any means” such informationaccording to this draft, which has a long way to go before it enters into force and can change during its parliamentary journey.
Some Moncloa sources cited by The country tried to “reassure the press”, since “they ensure that these sanctions are not intended for the media” and, although they admit that “in theory journalists who disseminate secret documents could be sanctioned”, they recall that, “in practice, the constitutional jurisprudence that the right to information prevails“. That is, the judges will decideinstead of proposing clear and really effective regulations.
According to the proposal signed by the minister Felix Bolanosit seems that these ‘safeguards’ would not apply to whistleblowers and civil servants and citizens of corruption, sources indispensable to know the illegal behavior of public authorities ‘from within’.
In fact, informants will have their own regulations, the Informant Protection Law, but it is still undergoing parliamentary proceedings and its draft was presented on March 4, 2022 by the Minister of Justice Pilar Llop.
That future regulation that will supposedly protect informants has significant gapssuch as the absence of protection of the anonymity of the corruption whistleblower, nor would it cover a leak to a media outlet.
Now, the text proposed by the Government for classified material has, in Title IV, a severe sanctioning system described above. The initiation of the procedure would correspond to the classification authority, while the sanctioning power would fall to “the competent classification authority”, that is, it will be the Executive branch who sanctions, either the Government (“top secret” and “secret” will correspond exclusively to the Council of Ministers, which in no way can delegate) or other authorities in the case of “Confidential” and “restricted” documents.
Declassification due to expiration (Article 16)
Information classified in the “top secret” category will be automatically declassified after fifty years from its classification, and may be extended in an exceptional and motivated manner, always before the expiration of the term, for fifteen more years.
Information classified in the “secret” category will be automatically declassified after forty years from its classification, and may be extended in an exceptional and motivated manner, always before the expiration of the term, for ten more years.
Information classified in the “confidential” category will be automatically declassified after the specific period indicated by the classification authority, which will be between seven and ten years, non-renewable.
Information classified in the “restricted” category will be automatically declassified after the specific period indicated by the classification authority, which will be between four and six years, non-renewable.
The draft text grants the work of custody, protection and treatment of documentation classified as “top secret”, “secret” and “confidential” to a National Authority for the protection of classified information, which organically depends on the Ministry of the Presidencywhose owner is currently Bolaños.
An automatic declassification of secrets of the Franco regime, the Transition or the fight against terrorism is not foreseen
The proposal does not foresee an automatic declassification of all the secret documentation of late Francoism, the Transitionthe fight against terrorist groups or episodes as delicate as the coup attempt in 1981 waves activities of GAL terrorist groups protected by the State; authorities with the ability to classify may do so but are not required to do so.
Courts may also request classified material if it is “considered essential for the development of the proceedings or the resolution of the matter”, for which it must request it from the Contentious-Administrative Chamber of the Supreme Court, and this in turn to the competent authority. In any case, the Supreme has the last word.
The bill also enables to request the declassification of information to “people directly affected”, as long as they specify and delimit their requests. In case of refusal by the authorities, there is also the possibility of going directly to the Contentious-Administrative Chamber of the Supreme Court, but only for those “persons directly affected” by the content of the documents in question.
Therefore, this whole procedure it would leave out, in principle, researchers, historians or journalists.