Transparency and confidentiality: an uncomfortable relationship

Democracy must be based on the principles of freedom of information and transparency. In the first place, to enable the basic work of supervision and control of governmental and administrative bodies, without which it is not possible to speak of a constitutional state. And secondly, because of the necessary task of informing the public as a basic premise for the formation of a free opinion. References in our legal system to honest information and transparency in the exercise of public powers, as well as accountability, are consistent and constitute one of the cornerstones of our model of society.

But to every rule there are some exceptions, and in parallel with the above, there is also a need to hide some tasks, at least temporarily, always under the premise that, otherwise, the public interest can be harmed. The combination of (transparency and public information on the one hand, and confidentiality and reserved matters on the other) means facing an uncomfortable reality that is difficult to manage. However, in a democratic state of law there should be no prohibited subjects, so that it is necessary to have clear regulation in this respect, and at least, we admit that we must agree on how to reconcile these two above mentioned realities.

In recent weeks, the uproar created by the actions of the National Intelligence Center in relation to some people close to the pro-independence parties has brought up the thorny issue of state secrets and the actions of intelligence services in countries under the jurisdiction of the rule of law and the protection of basic rights and public freedoms of citizens. What for some is intolerable espionage, for others it may be necessary investigative activity protected by law. Below I will refer to the regulation in Spain on this issue.

Let’s start with the most common example, Article 302 of the Code of Criminal Procedure states that an investigative judge who is investigating a crime may declare secret actions taken to clarify the facts if he considers that if he does not do so, there will be a serious danger to the life, liberty or physical integrity of any person, Or that the outcome of the investigation may be in serious danger.

Another assumption is in Law No. 9/1968 still in force, dated April 5, regarding official secrets. According to this rule, state organs in their activity will be subject to the principle of propaganda, except in cases where, due to the nature of the matter, they are expressly declared “secret”, proving that “things, deeds, documents, information, data and things whose knowledge may lead to the knowledge of unauthorized persons to harm the security and defense of the State or endanger it. These confidential matters will be classified into the categories of “secret” and “guarded” taking into account the degree of protection they require. The qualifications listed will be the exclusive property of the Cabinet and the Joint Chiefs of Staff. It is also envisaged in the above law that The declaration of confidential matters shall not affect the House of Representatives or the Senate, which shall always have access to any information they request, in the manner prescribed by relevant regulations and, where appropriate, in secret sessions.

We also have Law 11/2002, of May 6, which regulates the National Intelligence Center, which is a public body responsible for providing the Head of Government and the national government with information, analyses, studies or proposals to prevent and avoid any danger, threat or assault on the independence or territorial integrity of Spain and the interests National stability and the rule of law and its institutions. Article 3 of this law states that “the government will determine and annually approve the objectives of the National Intelligence Center by directing the intelligence, which will be confidential.”

Among the functions of this National Intelligence Center are the acquisition, evaluation and interpretation of information to protect and promote the political, economic and strategic interests of Spain, the ability to operate within or outside the national territory, as well as to prevent, detect and enable the neutralization of activities that endanger the constitutional order, threaten or attempt against its sovereignty or the integrity and security of the State . It is expressly established that their activities constitute classified information, with a degree of confidentiality.

Similarly, Organic Law 2/2002, of May 6, regulating the prior judicial oversight of the National Intelligence Center, states that the National Intelligence Center must seek authorization from a judge of the Supreme Court to adopt measures affecting the sanctity of the home. And confidentiality of communications, provided that these procedures are necessary to perform the tasks assigned to the center. In this case the said judge shall, by reasoned decision, agree whether or not to grant the required authorization, and will arrange what is appropriate to keep their acts confidential, which will be classified as confidential.

In any case, it must be borne in mind that the judiciary and, where appropriate, the Constitutional Court, must control the manner in which the government administers these powers. The controversial Third Administrative Chamber of the Supreme Court issued three rulings in 1997 that nullified the cabinet agreement in which it was decided not to declassify thirteen documents claimed by three judges. The view of the vast majority of judges is that the fundamental right to effective judicial protection requires that such documents be declassified so that they can be used as evidence in criminal cases. As stated in Supreme Court Judgment No. 2359/1997, “The security that the Official Secrets Law attempts to maintain is the security of the state and not the security of its authorities or officials who may be personally connected to the criminal case.”

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