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Home > Vol 21, No 2 (2015) > González

Official Secrets and the Right of Access in Spain after the Enactment of the Law on Transparency

María Pilar Cousido González [1]

Cite as González M.P.C., "Official Secrets and the Right of Access in Spain after the Enactment of the Law on Transparency", (2015) 21(2) EJoCLI.

Abstract

After 10 terms in office, since 1978, no Spanish Government has consistently considered replacing the Francoist Official Secrets Law (Law 9/1968, slightly amended in 1978), with a law suitable for the current democratic rule of law and these advanced times, in the context of the technological revolution and the era of open governments. However, there seem to be strong reasons for a change to be implemented in a field which tends to arouse suspicions among the general public and the mass media.

Only as recently as in 2013 has a Spanish Government dealt with the right of access to public information and with the principle of transparency. For the time being, none has dared to produce a new law on official secrets. It is the aim of this contribution to define the current Spanish legal context of the official secrets in order to make the change of law easier.

1 Introduction

This contribution is about transparency and secrecy. Its ultimate motif is the concern of this scholar about the Spanish regulation on official secrets, a topic first considered by the author in 1995, giving rise to a book that is now being revisited. [2] Therefore the following ideas are for reflection, in the framework of a research development not ended yet.

Thirty seven years have passed since its approval and the Spanish Constitution seems to be getting out of touch with the current aspirations of citizens and in need of a change, in the middle of the long lasting economic and political crisis. King Juan Carlos's sudden abdication in 2014 and the results of local elections in May 2015 could be understood as images of an old regime slowly being replaced by a different one. Since 1978 constitutional Institutions have had mixed fortunes and contemporary political and legal trends such as transparency as general principle of law had had little resonance among the Spanish political authorities.

After 10 terms in office, no government has consistently considered replacing the Francoist Official Secrets Law (Law 9/1968, slightly amended in 1978), with a law suitable for the current democratic rule of law and these advanced times in the context of the technological revolution and the era of open governments.

Oddly enough, while personal data protection and privacy, for example, are outstandingly tackled by Spanish regulations, almost no political figure at all until very recently had dealt with the right of access or with the principle of transparency. None has dared to produce a law on official secrets.

The delay in the legal development of the right of access, transparency and official secrets, three institutions that belong to the common area of ​​public policies, is striking. Above all, if we compare this situation with that of other countries, such as the United Kingdom, for instance. The British Official Secrets Act was enacted in 1989 and the Freedom of Information Act, comparable to the Spanish Law on Transparency, was dated in 2000, with some recent changes.

According to David Banisar, the public or national security, defence and state, military or official secrets are cited, directly or indirectly, as limits to the right of access to public information in the Constitutions of at least ten countries of the European Union (Austria, Belgium, Bulgaria, Croatia, Estonia, Finland, France, Hungary, Romania and Sweden). [3]

There are Freedom of Information Laws (FOI), with this name or another, and Acts of Official Secrets (OSA), with this name or another, simultaneously, in Bulgaria (FOI, 2000; OSA, 2002), Croatia (FOI, 2003; OSA, 1996), the Czech Republic (FOI, 2000; OSA, 1998), Slovakia (FOI, 2001; OSA, 2004), Estonia (FOI, 2001; OSA, 2008), France (FOI, 1978; OSA, 1998), Hungary (FOI, 1992; OSA, 1995), Ireland (FOI, 1998; OSA, 1963), Italy (FOI, 2001; OSA, 1977), Latvia (FOI, 1998; OSA, 1996), Lithuania (FOI, 2006; OSA, 1999), Poland (FOI, 2001; OSA, 1999), Portugal (FOI, 1993; OSA, 1994), Romania (FOI, 2001; OSA, 2002), Sweden (FOI, 1949; OSA, 2009) and in the United Kingdom (FOI, 2000; OSA, 1989).

If we compare the dates of the European Official Secrets Laws with the Spanish ones, it could be said that the Spanish Official Secrets Law is the oldest, which is not an asset in this case, taking into account the political and technological changes of the last few decades.

The position of the Freedom of Information Act has been clarified in the Czech Republic, where Courts have given preference to the FOI Act when confronted with other laws in most cases. In Romania, social and political movements have also sought the primary effect of the FOI Act. In the case of the Spanish Law on Transparency, the Additional Section 1 paragraph 2 makes it clear this is a general law, subject to sectorial legislation on the access to specific public information.

As far as the release of classified information on national security or defence is concerned, European Official Secrets Acts tend to follow two different paths. On the one hand, there are laws that impose requirements prior to the withdrawal of the information, such as showing the harm to or thedetrimental effect on the security interests (Germany), harm tests (Finland), harm (France, Portugal), absolute necessity and justification (Greece), prejudice, specific damage to the national security (Italy) or damage (Lithuania, The Netherlands, Poland). In some cases (Sweden), two possibilities are considered: an indication of the harm to the national security and a public interest test according to which the benefits of releasing the document overcome those of its withdrawal.

On the other hand, some laws ignore the harm tests when the national security is concerned; this would be the case of Bulgaria (no public interest testing) and Ireland (the public interest test being totally excluded in the cases of national security). There are also mandatory exemptions or absolute exemptions that prevent such information from being released, as in Croatia or in the United Kingdom.

The qualified class exemption category, where a public interest test applies, adds a third track for exemptions related to national security, in the United Kingdom, too, where harm should be proved by public authorities and a public interest test applied also.

The Spanish Law on Transparency entered into force last December. In principle, such a statute should create a new framework where the existing dictatorial Official Secrets Law could be construed in accordance with the principles of transparency and democracy. If either its body or its soul makes that difficult, the time may have come to seriously consider an up-to-date Official Secrets Law that could enhance the geopolitical position of Spain in the twenty-first century and its strategy on domestic and foreign policies, aimed at serving the common good.

2 Technology, Secrecy and Transparency in Spain

Although the Spanish Law on Official Secrets basically remains the same as in 1968, situations and context are quite different. Two circumstances must be considered: on the one hand, some foreign affairs, with outstanding impact in Spain, such as the Snowden case and the WikiLeaks (WL) affair, in close relationship with the technological revolution; on the other hand, the enactment of Law 19/2013, 9 December, on Transparency, Access to Public Information and Good Governance. [4]

As far as the Spanish Official Secrets Law (hereinafter, the OSL) is concerned, its validity and unnecessary reform have been upheld by Spanish High Courts. Thus, the Judgment of the Supreme Court, on 14 December of 1995, deciding the Appeal 726/1996, in its fourth foundation of law, directly confronted the approach of the appellants. The latter understood that OSL was repealed by supervening unconstitutionality when the current Constitution (1978) came into force; if the OSL had been considered unconstitutional by the Courts, the governmental decision to classify documents according to its criteria would be illegal.

In favour of the claimants, the Court identified a contradiction between some sections of the 1978 Constitution and some of the OSL, resulting in a restriction of constitutional rights.

However, the Court ruled that preserving the existence of the State might require the restriction of the principle of disclosure when the interest of national security is at stake, " and therefore, from a constitutional perspective, there must be recognized the validity of the Official Secrets Law of 1968, at least in the areas where it empowers the Cabinet (Consejo de Ministros) to classify or declassify..." . The Court supported its ruling on the exemption of national security enshrined in sections 10.1 and 11.2 of The Rome Convention of 1950, a hierarchically superior source of law.

In the Law 19/2013, on Transparency, Access to Public Information and Good Governance, there is a mention of a long list of limits to the right of access to public information when such access would cause harm to the public or private interests protected by those limits. [5] Here we will begin the study of those that are quoted in the current Spanish OSL [6] and in the last two Drafts of a Law on Official Secrets. [7]

3 The Contradiction between Total Transparency Ideas and Growing Opacity in the Public Arena

The question raised by UMBERTO ECO, two years ago, about how to react to the uncontrollable triumph of "total transparency", came after he commented on the fact that, in the near future, State civil servants might not entrust any confidential information to the Internet. For Eco, States will have to return to methods of centuries ago: only personal communication, face to face, will ensure the secret when it has to be guaranteed.

In the public arena, it seems evident that ideologies such as that of transparency are winning: social and political initiatives of governments to open e-diplomacy seem to prove so. [8] That apparent triumph might have been one of the reasons why the Spanish Government, for instance, finally produced a law on access to public information.

The political improvement in this sense is exacting a high price: State authorities may already know all about each and every citizen. Notwithstanding, some whistle-blowers could be able to know almost all the secrets of power too. [9]

In order to avoid undesirable leaks, it is possible that, paradoxically, technological change should favour the evolution of democracies - where the knowledge of official secrets is divided among different people with no communication among them- towards situations closer to, or typical of, dictatorships -where, to avoid leaks, classified information is in the hands of very few people. [10] Foreseeably the legal tendency could support concentrating the holding of secrets to prevent leaks with the fair idea that effective measures could be taken to avoid the really damaging leaks.

Contradictory though it may seem, the number of classified matters grows exponentially and so does the number of officials that guard them. In terms of what is truly happening, that is also an unwelcome and unexpected fact for ideologues of transparency. To sum it up, the situation could be described as a bunch of contradictions, quite typical of a turbulent time such as ours.

The growing numbers just mentioned lead FRANCESCUTTI, SERRA, PASCUAL and MAGALLÓN to conclude that the secret is more valid than ever and that transparency continues to be a public relations strategy in the hands of political rulers that hide: (a) an increasing number of secrets (b) a shift in the focus on materials to be classified, (c) the creation or adaptation of protocols that ensure confidentiality to secrets, and (d) the setting of new deadlines, accepting that the instantaneous speed introduced by electronics in contemporary life has also infected the law; [11] as a consequence of the increasing speed affecting all realms provided for by law, the duration of public secrecy should be considerably shortened on all fronts. [12]

The clearly visible need for changes in many provinces of law, and particularly, in the field of the Communications Law, allows Abruzzese to assert that phenomena activated by electronic networks, such as transparency or the access to public information, should not be interpreted according to old-fashioned laws which are in the process of vanishing into thin air. [13]

The very nature of investigative journalism, in particular, is in question. The watchdog research, practiced several decades ago, by journalists investigating under the reporter's privilege, with the support of citizens who provided them with a kind of implicit social mandate on the grounds of shared common values, is being replaced by investigative journalism practiced by citizen-journalists or whistle-blowers. They help themselves with outlawed practices such as intercepting third parties' communications without unproven better democratic standards as rationale. [14]

Meanwhile, the political figures that today want to judge the perpetrator of the WL affair wield the State secrecy as the reason to do so. However, this legal tool, State secrets, should be rightly handled, at the service of legitimate purposes, for instance, the constitutionally enshrined legal values.

Paradoxically, according to the content of the leaks, constitutionally protected values such as privacy have been illegally challenged by the very same political leaders that want to judge the perpetrator of the leaks. Nevertheless, legal technicalities prevent the content of the leaks from being considered by a court.

As a matter of fact, there could be here two apparently illegal types of behaviour: illegal access and release of classified documents, as far as WL is concerned, and expedient classification of information concerning illegal political acts, as far as some governments are concerned. [15]

Marcello Serra, with the same sort of reasoning, believed that the sprouting of transparency is a pendulum reaction to the unstoppable rise of State secrets. [16]

In Spain, the concerns remain the same as in 1991, when the leaks of the so called (in NATO's language) documents Papa Tango and Papa Golf took place: [17] Is it legal or legitimate to violate a State secret when the public interest in knowing the revealed content is dominant, obvious or even fair? In other words, the crime committed by those who unlawfully disclose information classified as State secret may see their penalties mitigated when what is revealed to voters is a major crime committed in the exercise of public functions by public figures? [18] Can the judiciary ignore sanctioning the minor offender - journalist, researcher, citizen - hacker, whistle-blower, ... - because he or she has opened a clear track on a major offender or on an administrative act which is rejected by the apparent social majority? Does the technological evolution make it compulsory for us to review the whole system of official secrets? Should we redefine the boundary between public and private, in view of the widespread situation in which electronic networks make public areas that had been private for centuries? [19] Should laws redefine the secrecy in multimedia environments, or give it a different approach, as Francescutti suggests? [20]

Serra repeats, along with Bobbio, what could be a criterion of orientation de lege ferenda: if everyone agrees with constitutionalising a value such as the national security, for example, all the official secrets involved in updating that value would be legitimate and legal. [21]

4 Access to Information: Public interest and damage to common goods

LOUIS MARIN has stressed the exceptional nature of structure that the secret has. From that point of view, this legal building called secret lies on two pillars common to the Spanish Law on Transparency and the one on Official Secrets. Primarily, the unlikely presence of public interest, as a major fact, higher than the potential limit supported by the law, which would allow the access to a public document asked by a requester. [22] And, secondly, the fact that there should be some probable jeopardy caused by the access to the limit protected by the law in order to prevent the access from happening.

The public interest should be located on the side of the right to information, beyond any harm to no matter what legal rights become legal limits. On the contrary, the damage would operate to the benefit of the limits, always taking into account that the implementation of any limit should be proportionate and justified, according to narrowly tailored criteria laid down by the Law on Transparency. Justification is also mentioned by article 5 of the Greek Constitution in relation with the limit of national security to the right of access.

5 State Secrets: The limits to the Access to Classified Information

Five limits related to State secrets are explicitly mentioned in the recently enacted Law 19/2013, in line with the current Official Secrets Law (1968) and the failed Drafts for a contemporary Law on State Secrets (1996, 1997), here considered as preparatory documents that could inspire, in the near future, a new Spanish Official Secrets Law:

National security and defence. They are the first and second limits specified in the Law on Transparency, and also mentioned in the Draft of the Law on State Secrets, 1997, as security and defence of the State. They are considered vague legal concepts, bearer of a kind of nature that would recommend secrecy for the materials referred to.

Secrecy here clearly turns out to be a tool protecting a major good and it is not an end in itself. This was precisely the approach by Judge Stewart, who stated: "...I should suppose that moral, political, and practical considerations would dictate that a very first principle of wisdom would be an insistence upon avoiding secrecy for its own sake ... .". [23]

Those vague legal concepts are present too in the 1996 Draft on State Secrets Law, in the categories of military defence and others, relating to security and defence, an expression wide enough to be inappropriate, to say the least, in a democratic régime, for a law that restricts rights. The current Official Secrets Law invokes security and defence of the State as legal values, also, whose harm or risk of being harmed should be prevented from happening thanks to the classification, without specifying whether the damage must be serious or minor and whether the risk should be imminent, probable or even remote.

The approach of the Spanish Official Secrets Law differs, in that sense, from the American or the Italian one, as we will see immediately, but it is in line with the enacted laws of most European Union countries. Unlike the 1997 Draft, it does not focus on serious risks derivable from the improper dissemination of classified information. Plain risk would be considered an adequate reason for classifying information.

Contrary to this, as anticipated, in the case of Italy, for instance, the regulations of 2001 on access to documents impose the withdrawal of the document if specific, identified damage to national security and defence can happen. And in the case of the United States of America, in the same decision above mentioned, judge Stewart added "… the Executive's right about some of the documents concerned... (it cannot be said) the declassification of all result in direct damage, immediate and irreparable harm to the nation or its people... " and so "... I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people... ". [24]

As a matter of fact, it could be said that admitting a possible risk could justify a kind of preventive, general and extensive classification would be contrary to the doctrine expounded in such case-law accepted by constitutionalist scholars worldwide. The underlying justification of this reasoning is the guarantee of the individual freedoms and rights of the people and of the nation as a whole, basically against unfair or wrong governments.

In the same line, on 15 October 2010, the Spanish Cabinet approved an Agreement on Policy for Information Security in which certain matters were classified according to the Official Secrets Law. In this Agreement the seriousness of a risk or damage was claimed as a reason for denial of access. This is why this scholar disagrees, in part, with Niño and Sanz, who stated that the 2010 Agreement is to enlarge the content of the OSL contra legem and significantly, because it extends the protected limits.

It is true that while in the OSL State security and fundamental interests of the nation are understood only in terms of national defence, foreign peace or constitutional order, in the 2010 Agreement, the security and defence of Spain would be extended to the security and defence of its allies or friends, and to political, social, economic and commercial interests and diplomatic relations with third countries.

Nevertheless, there seems to be a relevant nuance: the 2010 Agreement referred to damage or serious risk. In contrast, the Spanish OSL refers to harm or risk. Obviously, the severity of the risk requirement could significantly reduce the amount of information to be classified, although it could clearly broaden the discretion of the authority that classifies. Thus seen, that approach would partially meet the American judges' requirement that the risk be direct, immediate and irreparable, something that would have to be tested. In this regard, for instance, Justice Brennan required of the United States of America's government proof of imminent irreparable harm. [25]

Finally, it should be taken into account that the concept of national security has evolved since the fall of the Berlin Wall. The 2013 Spanish Security Strategy provided an overview of it; national security was conceived as public service and as a kind of State action that would bring together fronts as varied as armed conflicts, terrorism, organized crime, energy vulnerability, intelligence, vulnerability of maritime space, cyber security, economic and financial security, migration, and emergency in disaster and critical infrastructure. [26] In a nutshell, a sort of unlimited area that could eventually be used to justify the withdrawal of classified information.

Foreign relations is the third of the limits related to State secrets that was mentioned in the Spanish Transparency Law. Foreign relations are considered not in the Spanish Official Secrets Law, but in Decree 242/1969, a regulation for the implementation of this Law. [27]

In an additional provision, the Decree recognizes the unique characteristics of the Diplomatic Service and the circumstances of its duty overseas. Thus, the possibility of developing specific rules of procedure for its premises is set forth, subject, though, to the general rules of the previously mentioned Decree.

Similarly, in article 3 of Decree 242/1969, the overseas peace is mentioned as another legal value protected by the Law on Official Secrets. Later, the Draft 1996 would cite the damage or plain risks that overseas interests could undergo.

Foreign relations was the legal value mostly attacked in the cablegrams' leaks that were in the origin of the WL affair and in the documents of the Snowden case.

The secret (not so secret, after all) governmental Agreement of 15 October 2010, on Security Policy of Information, inspired by the Spanish Ministry of Foreign Affairs and Cooperation, was born in the context of the above named affairs. In this Agreement, certain new categories of matters were classified under the guarantees of the Official Secrets Law. Considering that the Agreement really is a minor rule, it would be no exaggeration to understand that, when widening the content of a major law such as the OSL that restricts rights, this Agreement was a breach of the principle of hierarchy between norms -regulations with respect to statutory norms- which underlies the rule of law. Thus, that Agreement would become formally unconstitutional.

Until now quite a large number of authors have confronted the massive leak of information involving foreign relations - both in the WL affair and in the Snowden case - of many countries. To ABRUZZESE, the WL case and Snowden's itself have highlighted a number of issues.

To start with, Abruzzese underlines that electronic communications have the nature of border territory, in such a way that nowadays the secrecy is only viable if one ignores the Internet. When someone joins the network, and delivers a secret, even restrictively, sooner or later, it becomes widely known.

Secondly, the communications success of the WL affair, for example, heavily relied upon the mainstream media, as the leak was a permanent piece of news on their agenda for months, according to MARCELLO SERRA. [28] Therefore, this to all appearances unsystematic action actually was not so. As far as the WL affair is concerned, the establishment was used to attack the establishment, in a context of social change that seems to augur a new era and a different communications paradigm. [29] Of course, the social change, the change of era and the change of the communications paradigm must be observed by the jurist as potential new realities, as Pieper would have said, to be ruled about. [30]

Thirdly, the WL affair meant to complain about the opacity in which, in the judgment of the perpetrators of the affair, not only the Institutions affected by the information illegally declassified, but also the mass media that usually hide big chunks of information that arrive at their pressrooms, play their role with no obvious explanation, while both affairs here mentioned showed the potential of the new media by disseminating all sort of political and economic information with no boundaries at all.

And, in the fourth place, the WL affair and the Snowden case proved the self-defensive trend of current political régimes against the Internet, as well as the tendency of the new media to dissipate twentieth-century protected rights, such as property or privacy. [31]

In this context, Appeals 24/2011 , 631/2011 , 926/2011 and 23 /2012, decided by a High Court of Spain, the so-called Audiencia Nacional, would be an example, clear and legal, strictly speaking, of the response given in accordance with the current regulatory framework by public Institutions when intrusions of the new media happen. [32]

The first of these appeals, presented by an engineering firm, sought to challenge the Decision of 24 November 2010, by the Spanish Ministry of Energy, and the Resolution of 31 January 2011, dismissing an appeal for reversal brought against the 2010 Decision. [33]

The 2010 Decision had called for private companies to compete in order to obtain additional financing to that of the market for electric energy, provided that the project presented had an innovative nature. This trait would be measured according to some parameters set up by the very same Resolution.

The claimant came to argue that, on the one hand, the parameters of the 2010 Decision did not appear in Royal Decree 1565/2010, which should have been the legal basis for the Resolution, and, on the other hand, that the deadline of August 1^st, 2010, was used arbitrarily to demand that those criteria be satisfied by that day, considered by most firms too close to comply with. [34] The claimant gave evidence of some pieces of news published in the media referring to cablegrams leaked by the WL team. Their content seemed to imply that the intervention of the American ambassador to Madrid had been a clear asset for the American company that had finally won the power market competition.

Citing previous decisions as case-law support, judges in the Chamber for Contentious - Administrative Disputes of the Audiencia Nacional argued that:

"...the mere information reflected in a newspaper of wide circulation, which claims to echo the cablegrams made ​​public by Wikileaks, cannot be taken into consideration. Not only are we ignorant of the authenticity of this information, but the disclosure of the cablegrams from the U.S.A. Embassy is but one piece of evidence obtained unlawfully whose consideration is forbidden, according to section 11 of the Judiciary Law as on many occasions has been highlighted by the Constitutional Court. The Court has reiterated that the fact of using evidence obtained through violation of fundamental rights, privacy of communications in this case... is not consistent with the right to an effective remedy and the right to a fair trial (section 24 Spanish Constitution)". [35]

Thus, the judicial response, repeated in identical terms in the other three appeals, underlined the formal wrongfulness of evidence obtained against the right to privacy of communications of the U.S.A. Embassy in Spain. Therefore, fair as it may be, the reasoning prevented the analysis of the substantive points of the appeal from being practised.

Appeal 631/2011 challenged the Resolution 24 June 2011 on the grounds of, among other reasons, misuse of power, considering:

"... surprising that the result of the competitive contest exactly matches the news leaked by Wikileaks which was published by El País on 23 December 2010, which means six months before the procedure of the competitive bidding was won by the company for whom, and as Wikileaks unveiled, the procedure had been organized....".

The claimant believed that the evidence supported the view that the competition had not really been so, but that it had deep down been called ad personam.

In the Appeals 926/2011 and 23/2012, the position of the Audiencia Nacional was the same: to dismiss the evidential quality of the cablegrams because of their illegal origin.

The disqualification, on the basis of formal reasons, legally supported, without any doubt, leads one to ignore the apparent unfairness of some political decisions, nowadays known only due to the technological progress managed by journalist-citizens and whistle-blowers.

This self-defensive reasoning aroused the suspicion of political corruption in the general public after getting to know the coincidence of the U.S.A. Embassy's cablegrams, the exceptional parameters of the administrative Resolution and the outcome of the competitive contest in the field of public service.

Public Safety. For its part, the fourth of the limits to access to public information provided for by the Spanish Transparency Law is public safety. The 1996 Draft echoed this value in terms of sovereignty, independence, territorial integrity or constitutional and institutional order. Again it is not the Official Secrets Law, but the regulations implementing that Law that do mention the constitutional order as legally protected by current legislation.

MACCHIA linked the expression reason of State to the right of domain and government security. [36] In relation with transparency, he underlined that autocratic leaders tend to be obsessed with the aspiration that gloom and doom seem to mean honesty and clarity. Consequently, on the one hand, the field of public safety should be defined as closely as possible, to prevent it from being misinterpreted as an excuse for legalizing public interference in private lives. And, on the other hand, because transparency deriving from, in the Spanish case, Law 19/2013 should not be mere appearance or demagogy.

Economic Interests To conclude, in 2 of the 4 documents here considered, the trail of references to economic, industrial, technological and scientific interests can be followed, both in the Draft of 1996, and in art. 14.1.h) and art. 14.1.i) of Law 19/2013, where the economic and commercial interests and economic and monetary policy are cited as limits to the right of access to public information. [37] Such interests, which have become legally protected goods, must be deeply scrutinized as the post-industrial technological reality, in a truly global market, fully characterized by divergent competitive strategies, forces political figures and citizens to test if adding such interests to the list of public classified topics is fair or not.

6 Recent Spanish Developments on Official Secrets: Legislation and expectations

Official secrets are mentioned as a limit to the access to public information in several Spanish regulations. Some of them have already been mentioned here. Others of outstanding importance are the Law 16/1985, on Historical Heritage (HHL), and article 37.5 in Law 30/1992, on Administrative Procedures, a key article for all scholars working on Spanish transparency matters. The latter has been usually enforced to exclude from the right of access records containing information on national defence or national security. [38]

In its new wording, the Administrative Procedural Law simply follows the Law 19/2013, on Transparency. In this sense, an exact adjustment of the Law 30/1992 to the Law 19/2013 has taken place. Therefore, all comments on Law 19/2013 in this contribution would be applicable to the Procedural Act.

The Historical Heritage Law, for its part, besides recognizing, once more, among several exemptions, the State secrets, in terms of the existing Official Secrets Law, provides for the possibility that in the event of denied access to public information, the applicant requests a specific permission so that either the Head of the Department responsible for the custody of the secret or the classifying authority proceed to grant approval(art. 57.b HHL). [39]

Contrary to what, in principle, could be considered an open approach to the right of access to classified information on the part of that Heritage Law, Royal Decree 1708/2011, a hierarchically minor regulation, did just the opposite. It regulated the Spanish Archives of the State Administration and the corresponding procedural rules governing the right of access to such public archives. Niño and Sanz think its effectiveness deeply restricts the principles of openness and transparency allegedly established by Law 19/2013. [40]

The laxity on the part of the civil servant when referring to the tackling of the requested access, as provided for by the Heritage Law, must be combined, from the very moment of the approval of the Royal Decree 1708/2011, with the total discretionary power granted by its section 26.4 to the civil servant responsible for the Public Archive, to deny requested access even if the information is not specifically affected by any constitutional or statutory exemption. [41] These two measures must be added to the rule, in this same Royal Decree, according to which access to information related to national security or defence will require the permission of its classifying authority in all cases. At the very end, the feasible triple lock is outstandingly obvious.

Even the Ministry of Foreign Affairs protested that regulation, in a Report dated on 4 November 2011, on the ground that such discretionary administrative power would go to the detriment of the general right of access, initially enshrined by Royal Decree 1708/2011. Above all, if we consider that the limits in the OSL, a law restricting rights, should be interpreted narrowly, in a fair approach. [42]

Moreover, there must be taken into account the fact that legal sanctions to the undue disclosure of information by civil servants are radically opposed to the lack of sanctions for undue denials of access to information in the cases of too rigorous application of the rule. The immediate consequence will be the inevitable tendency of civil servants to withhold information, when in doubt.

In no man's land there are the even hierarchically inferior Guidelines for the Instruction on Personnel's Safety, 15 December 2009, and the Provision NS/04 about Information Security, October 2009. [43]

On the one hand, through them, as previously it had been made ​​by Law 11/2002, regulating the National Intelligence Centre, and by the Organic Law 2/2002, on the Prior Judicial Control of the National Intelligence Centre, an implicit substantive amendment to the Official Secrets Law was made. This step allowed the Official Secrets Law to remain intact, obviously for lack of political will to change it, which is to say for the political will that it be in force, even though it is a law of a dictatorship. [44]

On the other hand, as a result of those regulations, new categories have arisen in the rating of classified documents (confidential, internal reserve, restricted) closer to expressions handled in other surrounding countries, and different from those of the Official Secrets Law. New internal classifications in several Ministries and different in each Ministry have been developed too; the Ministry of Defence would handle the three expressions mentioned in this paragraph and the Ministry of Interior would just use one - confidential, for information unclassified but relevant to national security- .

For its part, the cited Agreement on Policy of Information Security, 15 October 2010, passed by the Minister of Foreign Affairs simultaneously to the WL affair and after other leaks at a national level would add almost twenty new categories of classified materials in ​​Spain. [45]

To crown it all, that Agreement also provided for the power to periodically review and expand the list of materials that could be classified, and the increasing discretion of the Cabinet that is no longer limited to the foreign information originally classified by the allied powers. Nowadays, all information which, in the opinion of the Cabinet, may pose a mere risk to the security of the allied countries is to be classified.

In a nutshell, what we have at this specific moment of our law history, in this province of work, is a dictatorial law regulating the official secrets of the country, a recent democratic law on transparency and access to public information and a myriad minor regulations that could be enforced expediently to change and adapt the provisions of either the Official Secrets Law or the Transparency Law.

According to Additional Section, paragraph 2, of the Law on Transparency, besides, the Law on Official Secrets must be applied in the first place, if national security or defence were concerned. Only subsidiarily, if needed, should the Law on Transparency be applied.

This relationship between the Law on Transparency and other specific laws enlarges the range of limits that could finally prevent the requests for access to information from having a positive answer.

Essentially, to pick up the pace with regulations in the rest of the European Union countries, two measures could be undertaken: either changing the status of the Law on Transparency in order to apply its sections in the first place, or to review all specific laws that, under the current Law on Transparency, should be applied in the first place. If the latter were the chosen path, the Official Secrets Law would be one of the first laws to be either amended or replaced.

Several aspects of this law are in desperate need of a change: the deadline would be the first one. The Spanish Law on Official Secrets does no offer a deadline for a confidential piece of information to be released. This implies that Spanish confidential information could be withdrawn forever. The second one would be clearly to specify the political bodies entitled with the power of classifying and releasing information. Currently the power to classify information is literally shared by the Chief of Staff and the Government, without taking into account that it is the civilians who rule the country through the Prime Minister and his government, the military bodies being under the Prime Minister's command. The next points in urgent need of a change are the guarantees for the classified information. Not only the judicial or legal ones, but also the physical ones on account of the technological revolution. Without forgetting a consistent consolidation of all regulations related to this province of law.