declassified archives military archives Military archives legislation

A new era for Spanish archives approaches

by Colonel Manuel García Cabezas, member of the Spanish Commission of Military History

The Committee of Military Archives thanks our colleague Manuel García Cabezas for his committment and his participation to this project

The Spanish government presented in August 2022 a draft law on classified information that aims to replace the current law on official secrets that regulates the management of national classified information.

The new draft has been long and widely expected if we take into account that the current law dates from 1968, slightly modified after the approval of the Spanish Constitution in 1978.

This law has been repeatedly challenged by various sectors of activity, including journalists who saw it as contrary to the rights to information and transparency, and by researchers who considered it an almost insurmountable obstacle to access to historical documentation in the national archives.

The final report of the Spanish Civil War signed by general Francisco Franco

The Spanish Government itself remarks the need for the new law in the explanatory memorandum to the preliminary draft.

In this text the Madrid executive recognizes the constitutional right of access to public information, as well as the capacity of the State to preserve classified information, but “the sacrifice of citizenship rights that is made in favour of the State as a whole must have limits” which, the text adds, “must be weighed on a case-by-case basis […], making this process the exception, not the rule.

The future law establishes, for the first time in Spain’s history, a system of temporal limits on the confidentiality of information, giving the certainty that there will no longer be stolen information from the public to the public indefinitely”.

The need to adapt the Spanish legal regime to the international situation is also recognized in the new draft when it is stated that “there is no homogeneity or regulatory systematization in this area. Most of the rules governing classified information are instructions issued by the internal bodies of the administration, which also does not have a system of administrative penalties for non-compliance.”

In particular, the Spanish Government refers to the need to adapt Spanish rules to Council Decision 2013/488/EU of 23 September on security standards for the protection of EU classified information, which establishes a set of basic principles and minimum-security standards to be respected by members States for the protection of EU classified information. NATO and European Space Agency regulations also require a standardization effort on the part of Spain.

Once approved the future law, there will be four categories of the information to be preserved: “ALTO SECRETO”, “SECRETO”, “CONFIDENCIAL” and “RESTRINGIDO “.

The 1968 law envisages so far only “SECRETO” and “RESERVADO”, although in the military fields they were others called “CONFIDENCIAL” and “DIFUSIÓN LIMITADA”.

The competence for the classification, reclassification and declassification of information classified in the categories ALTO SECRETO and SECRETO will correspond exclusively to the Council of Ministers, without this competence being delegated in any way. The competence for the classification, reclassification and declassification of information corresponding to the categories CONFIDENCIAL and RESTRINGIDO will be assigned, within the framework of its competences, to various authorities, not all military and not all at national level, opening the possibility for regional authorities to classify information.

A NationalSecurityAuthority will be set up, which has hitherto existed only for the protection of internationally classified information. This authority will not be under the aegis of the Ministry of Defense, a novelty, and it will be responsible for the protection of information classified in the categories “ALTO SECRETO”, “SECRETO” and “CONFIDENCIAL”, as well as all classified information received by the Kingdom of Spain from other States or international organizations, irrespective of the classification category.

It will also become the competent authority for the exchange and mutual protection of classified information under the terms provided for in international treaties signed with other States or international organizations.

Another major novelty will be the introduction of regulated procedures for the classification and, above all, for the declassification and reclassification of sensitive materials, which has hitherto been very ambiguous or non-existent. 

In this regard, automatic declassification will be established after a few years, variable according to the type of classified information, and the decisions to classify will also be reviewed periodically which may agree to its declassification without having exhausted the statutory time limits when the circumstances that justified the original classification are changed.

In short, the most important changes introduced by the future law are a clearer specification of what information could be classified, a more flexible classification regulations, a greater flexibility to declassify and reclassify, and an automatic declassification system after a certain period of time.

With the establishment of a newNationalAuthority the responsibility forthesecurityofclassifiedinformation passes from the Ministry of Defense to the MinistryofthePresidency.

Although the draft is an imperative necessity recognized by almost everyone, and it still has a long process before being finally approved, the government’s text has attracted some criticism.

The Spanish branch of Amnesty International welcomes the government’s initiative, although the association’s director, Esteban Beltrán, considers it essential that the law should include “independent control mechanisms over government decisions” and persists on the need to ensure judicial review of those decisions.

The Federation of Journalists’ Associations of Spain (FAPE) also sees a “step forward” in the project, but it thinks that new regulation may conflict with the right to information and that “by qualifying as restricted or confidential a journalistic work that affects, for example, cases of corruption could be prevented or punished”, explains Aurelio Martín, vice-president of FAPE.

The Spanish Army archives will be impacted by the new regulations

For their part, the Spanish Civil Service Archivists (AEFP) are against the “aberration of multiplying ad infinitum” the authorities competent to classify and affirms that the concept of “documentary series” is not developed and that the use of the concept of “information” rather than “documentation” allows for their “destruction, albeit in a subsidiary manner” and conflicts with other existing rules. “These are not equivalent concepts,” says Henar Alonso of the AEFP, who adds that the new law “is less disastrous than before, but just as dangerous for the right of access to public information.” (see the ABC link above).

The plenary of the Consejo General del Poder Judicial (CGPJ)[1] unanimously also approved on 30 March 2023 a report on the draft law presented by the Spanish Government.

The report warns that the right to information is a fundamental right of citizens and that the fact of its classification must specify the major and certain risk to the core of the protected legal right (the “security and defense of the State”); therefore, the Consejo opposes the classification of information of economic or industrial nature because ‘it does not in itself imply a danger to the organization of the State and its democratic form of government’. 

The paper approved by the plenary of the CGPJ explains that, in a democracy, the decision to decree secrecy is extremely serious and must therefore be adopted at the highest level of the executive power.

This requirement is fulfilled in the preliminary draft with regard to the competence to ‘classify, reclassify and declassify’ information belonging to the categories ‘ALTO SECRETO’ and ‘SECRETO’, which it lies exclusively with the Council of Ministers, but criticizes the fact that below these categories that competence is in the hands of a broad and heterogeneous list of civil and military authorities, who could also delegate their competences.

The competence of these authorities should be limited, where appropriate, to raising the proposed classification, limiting the power to classify public information to members of the national government (president, vice-presidents and ministers with competences in the fields of security and national defense).

The report notes a marked indeterminacy in justifying classification, as well as in the motivation for it.  In this regard, the CGPJ stresses that the preliminary draft must expressly regulate the need to give reasons for the decisions of each classification, to specify the constitutional basis that exists in each decision, as well as the relevance and proportionality of the decision.

With regard to declassification, the CGPJ warns that these are excessive delays and suggests reviewing them by applying a restrictive and proportional criterion that allows the safeguarding of the security and defense of the State without diminishing, beyond what is necessary, the right of citizens to access information. The CGPJ is also opposed to regional polices being competent to control confidential information.  

Whatever it is said, the author of this work believes that the final text will lead to a fundamental improvement in the management of classified information in Spain, open up hitherto unknown possibilities for the public in terms of transparency of government information, and, above all, the new law will represent a new hidden world for researchers and users of Spanish archives.

[1] General Council of the Judiciary. A constitutional, collegiate and autonomous body, composed of judges and other jurists, which exercises functions of government of the judiciary.

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