Non-governmental organizations address the Parliament of Georgia on the draft law on State Secrets
In a few days, the Parliament of Georgia will hold the second hearing to discuss the bill on State Secrets; the author of the bill is an inter-agency working group, and the initiator is MP Irakli Sesiashvili (GD - Democratic Georgia). The bill, if passed, will replace the legislative act, adopted in 1996. The proposed version mostly repeats the provisions and structures in the current law. It does not meet international standards. There are several shortcomings in it and we believe it is inappropriate to pass the bill in the current form.
It should be noted that Ministry of Justice together with the civil society organizations are currently actively working on the elaboration of the law on the Freedom of Information (FOI). We are concerned by the fact that such an important bill, which covers state secrets, was prepared separately from and prior to the bill on FOI, as these two pieces of legislation must interact quite closely. The openness and free access to information is a guiding principle in democratic states, while state secrets are an exception. In this situation, when the Parliament determines the exception to the rule through a new and separate bill, we face serious risks to freedom of information in the country. Moreover, it should be noted that organizations who have expertise and experience in the field of accountability and transparency were not involved in the preparation of the new draft law about "state secrets.” State institutions argue that the bill under consideration of the Parliament aims to address and determine some technical issues and does not reflect current international standards of freedom of information. Unfortunately, several meeting of the Parliament with the non-governmental and international experts after the first hearing of the bill did not result in essential amendments to the initial version of the draft law.
The new bill about state secrets does not meet the challenges in the field and cannot substantially improve the current edition of the law about state secrets. For example, the official version of the bill does not mention the public interest test (When the value of disclosure to the public is greater than the value to the public, or the state,of keeping it secret, the information shall be disclosed) and the so-called “Harm test" (The information shall be considered secret through assessing the harm it can bring to the state interests if it is disclosed) is formulated very weakly. The bill (as well as the current edition of the law) imposes the main role of protecting the state secret on the Ministry of Internal Affairs (MIA). Giving MIA this mandate does not comply with best practice because, generally speaking, MIA is the possessor of a large amount of the information, and believe it is in their interest to keep this information secret; MIA might use this authority for the collection of information that it would otherwise need court permission to collect; and there is no accountability mechanism for MIA in this role. . International standards demonstrate that it would be better if an independent body held supervisory functions. The proposed bill does not provide relevant guarantees for the protection of whistleblowers. It also does not regulate the existing significant problems of criminal liability of journalists if they disclose state secrets.
At the same time, the draft law further deteriorates some provisions in the current version of the law: the group of those normative acts that might belong to the state secret list is extended; a person holding top secret status is not obliged to give well-grounded response to a request for information; the time period from when a person applies for top secret security clearance to approval is increased and a person may have their clearance request rejected on vague criteria; and there is a broadened definition of information that may be classified as secret.
Based on the above considerations, the undersigned organizations call on the Parliament of Georgia to reject the bill on state secrets in its current form; and to start consideration only in the frame of, and in parallel to, the new draft law on Freedom of Information.
Transparency International Georgia
Georgian Young Lawyers’ Association
Article 42 of the Constitution
Open Society Georgia Foundation
Georgian Charter of Journalistic Ethics
Human Rights Centre
Georgian Democracy Initiative
Institute for Development of Freedom of Information