The State Attorney General opposes the Government’s intention that autonomies with their own police, such as Catalonia and the Basque Country, have the capacity to classify information, that is, to declare it secret. This is reflected in the report signed by Álvaro García Ortiz together with four other members of the Fiscal Council.
Last December, this body that represents the public prosecutor’s office approved with seven votes a harsh report against the draft Law on Classified Information. He warned -with non-express but clear references to the process- of the risk that a CCAA could hide relevant information from the State. That report was not supported by García Ortiz, who has signed a private vote with an alternative report. It is much softer than the one that came out ahead, but even so it includes criticism of the Government’s text.
«Regarding the authorization granted to classify documents to the autonomous authorities competent in police matters […], it could suppose an invasion of an exclusive competence of the State, […] by including classification bodies that lack competence in the areas of action provided for in the draft (security and national defense), for which reason the section would be suppressed, “says the report now made public. At this point, the five members agree with the other seven, who also asked, although in harsher terms, to withdraw that possibility for the CCAAs.
The text supported by the attorney general includes other requests to modify the draft. He opposes, for example, that the ability to classify information can be delegated. «It is contrary to transparency, since the multiplication of authorities with classification capacity exceeds the possibility of adequately controlling the criteria that support their decisions, thus being able to produce a high level of opacity contrary to the right of access to public information».
He also sees the classification periods for “top secret” (50 years that can reach 65) and “secret” (40, extendable to 50) matters as unjustifiably long. “By all accounts excessive,” says the report, which proposes 25 years for top secret and 10 for secrecy.
Excessive are also the economic sanctions for those who fail to comply with the norm. “They are considered excessively high, since they start from 50,000 to 3,000,000 euros and can cause the chilling effect, that is, [they would be] capable of discouraging the exercise of fundamental rights.” This reference to the chilling effect is the one used by the Strasbourg Court to hand down sentences against sanctions so high that they discourage the exercise of rights.
It is not the only point in which, according to the attorney general, the law would clash with the doctrine of the European Court of Human Rights [ECHR]. A conflict with the right to information is also anticipated, because no specificity is made in the sanctions for journalistic information: «The difficult coexistence of this sanction should be regulated in the cases of disclosure by journalists of classified information that is of public interest and in view of the jurisprudence of the ECHR and the Constitutional Court”.
According to the criteria of The Trust Project