The new Law on State Secrets – threatening unjustified restriction of information
In the coming days, the Georgian Parliament plans to hold its second plenary hearing of the draft Law on State Secrets, which, if adopted, is to replace the current law. The draft law was initiated by Irakli Sesiashvili (Georgian Dream - Democratic Georgia), chairman of the Defense and Security Committee. Its first hearing was July 31, 2014 (72 in favor, 7 against).
According to the explanatory note for the draft law, the goal is to regulate public relations related to state secrets in accordance with modern international standards. However, the draft law contains a number of provisions that are not in line with international — including European standards — and, in this respect, worsens the current situation.
1. Classification of normative acts
1.1. The proposed amendment
The draft law expands the range of those normative acts that can be classified as secret. According to the current law, the status of a state secret can be granted only to those normative acts that regulate internal activities (related to defense, security and investigation) of the Ministries of Defense, Internal Affairs, Justice, Finance, Environment and Natural Resources Protection, and the Georgian Intelligence and State Security Services. The proposed law no longer contain the term ‘internal activity’.
Normative acts should be classified as secret only in cases of extreme necessity, since these documents regulate the mandatory rules of repeated conduct inside state entities. The current law allows for the classification of only those normative acts that regulate a state entity’s internal activities. The draft law no longer contains this provision. Consequently, it significantly expands the range of normative acts that can be classified as secret.
Those normative acts which are not concerned with internal activities of the state entities related to defense, security and investigation, law enforcement, investigation and intelligence cannot be classified as secret. Regulation of these fields and whether or not the relevant normative acts comply with the law are subjects of high public interest. The availability of these normative acts for public scrutiny is directly related to protection of human rights and democratic governance.
2. Granting a person clearance to state secrets
2.1. The proposed amendment
The proposed new regulation that governs the process of granting clearance to state secrets is also a significant problem. Compared to the current law, the draft contains vague and imprecise regulations. For example, According to Article 21 (paragraph 1, subparagraph 2) of the draft law, a person may have their clearance request rejected if the during the “process of inspection it is determined that the applicant endangers or will endanger the country’s security, state and public interests, the life and health of the population, and human rights and freedoms. Such a determination is based on evidence as well as a consideration of low reliability and trustworthiness”.
Paragraph 2 of Article 27 of the draft law regulates the grounds for rejecting clearance requests and contains more specific reasons. In particular, “a person may be refused clearance to state secrets if the inspection procedure reveals their involvement in illegal activities of foreign states and organizations, their participation in citizen unions, the activities of which are illegal and prohibited by the court, or if the person is revealed to have previously broken the nondisclosure obligation of state secrets”.
The “low reliability and trustworthiness” (that can create problems in the future) proposed by the draft law provides state entities with a lot of discretion in their decision making and increases the risk of abuse of this right. The current law contains more specific criteria: a person must not be involved in illegal activities of foreign states and organizations and must not participate in activities (of an organization) that are illegal and prohibited by the court.
2.2. The proposed amendment
The draft law also changes the state secret clearance inspection procedure and notification deadlines.
The initiated version of the draft law did not contain a deadline by which a state entity has to finish its inspection of a person requesting clearance to a state secret. After the Legal Affairs Committee issued a comment on this issue Article 19 of the draft law was changed before the first hearing to include a 3 month term. After the first hearing this new provision was moved to Article 22. The first and second paragraphs of this article now set the term at 3 months, with the possibility of extension by another 3 months.
The current Law on State Secret sets the inspection period at only 1 month.
The adoption of a new vague criterion of “reliability and trustworthiness” and the threefold increase in the maximum duration of the inspection procedure hinders a person's access to information, increases the risk of unreasonable reduction of access to an already closed system and increases the probability that the law enforcement authorities will make decisions based on subjective criteria.
3. Appealing the decision to classify
3.1. The proposed amendment
Article 16 of the current Law on Protection of State Secrets provides for the right to appeal the decision to classify information. According to Article 16 Paragraph 1, a citizen may request information be declassified by sending a request with reasons to the official that originally made the decision to classify the information. The official must consider the citizen’s request and notify them with a written response with reasons within a period of one month.
The right to appeal is specified in Article 13 of the draft law. The article contains regulations similar to the existing law, but no longer requires the official to submit a written response with reasons. The exclusion of this obligation from the law means that the official will have the right to respond to a citizen’s complaint without reasons, by simply notifying them of the final decision.
As we can see, the draft law establishes a new rule: on the one hand, it demands applicants to provide motivated requests for why certain information needs to be declassified and, on the other hand, it allows the official to not have to provide a written response with reasons in case of refusal to declassify the same information.
The obligation to prove the necessity to classify and the reasons why declassification is not possible must fall to the state entity and not the person who requests the information be declassified. Therefore, the regulation proposed by the draft law is a step backwards, since it worsens the transparency and accountability of state entities in relation to state secrets.