Source: "Politika"
Šabić: Confidentiality conceals crime and failure - Cvijan: Highest secrets to remain embargoed up to 60 years
As the National Public Prosecutor's Office attempts to establish who leaked to the press the state secret about negotiations with the USA to settle the case of Miladin Kovačević, who was enabled to flee the United States on a new passport issued by the Serbian Consular Mission in New York after a local court seized his original passport due to a pending investigation, many in Serbia wonder whether confidentiality was justified in the case of a document that envisages special allocations from the national budget, which in effect constitutes spending of taxpayers' money. Here, the Commissioner for Information of Public Importance, Mr. Rodoljub Šabić, and the Secretary General of Serbian President's Office, Mr. Vladimir Cvijan, MA, speak for "Politika" about classification of secret data and the new law which will govern this issue.Politika: In your opinion, is it justified to treat as confidential the information that the Government is attempting to settle the "Kovačević case" through indemnification, and if so, why? If the potential perpetrator is found, what sentence is envisaged under the currently applicable regulations?
Šabić: Any government can introduce an information embargo for negotiations that are underway if it considers that information leaks could affect the negotiations. Such situations undoubtedly exist; in this specific case, however, I do not have sufficient information and will not speculate. And what if the other party in the negotiations insisted on confidentiality? What would you have done in that case? what I like is that this measure is supposedly introduced for a limited time only and, according to the officials, the public will be informed what happened and how much it cost. As for the sentence, disclosure of state secrets is punishable by 10 or even more years of imprisonment, while disclosure of official secrets carries a prison sentence of maximum five years.
Cvijan: What the Government did in this particular case was absolutely in compliance with the law; it acted in accordance with the regulations. Yes, disclosure of state secrets carries a prison sentence of up to 10 years. In summary, the Government is allowed under the law to declare certain information confidential.
Politika: Will things improve significantly once the new law is enacted and will situations like these be possible?
Šabić: Let us not limit ourselves to this one case; I could quote many instances where the situation will change after the new law is enacted.
Cvijan: A great many documents have been declared confidential in recent years, heaven knows why. It could be argued that those who declared confidentiality of certain information abused their powers or misjudged the situation. The transitional and final provisions of the new law will envisage "information combing". All secrets will have to be probed within a specified period of time in order to establish whether there is a need for them to remain confidential. This is not to say that the law which we will enact will be a sort of a cure-all magic wand. Of course, once this law is enacted, many other laws will have to be harmonized; for a start, we will have to amend the Criminal Code, because secrets will no longer be classified as state, official military etc. Instead, there will be only one type of secret. This law will not prejudice the issues of priests' confidentiality or lawyers' confidentiality, which are governed by other laws. The transitional and final provisions will set out a time frame within which such other laws will have to be harmonized.
Politika: What is the essence of that law?
Šabić: It is a complementary law without which proper exercise of the freedom of information is difficult to achieve, or conflicting at best. It is not good that Serbia is among the last remaining countries without such a law. The more severe consequences of such situation are that we do not have a firm framework to legitimately restrict the public's right to know and to define what can be regarded as secret, who is responsible for introducing secrets, for how long, subject to what conditions and on what grounds and who controls this, who is responsible for issuing certificates to those who handle such information, who verifies the personal and professional qualities of people needed to access certain types of information; in effect, we lack everything that can be found in modern laws. What we have at present is a chaos, a conglomeration of several hundred regulations, most of them secondary legislation. Some of them are relics from socialist times and Milošević's regime, while some date back to the days of Yugoslav president Tito. It is a tangle dominated by provisory measures, without a solid foundation. On the one hand you have the problem that anyone can, at discretion, even where the underlying interests are not legitimate, declare something a secret in an attempt to conceal personal failure, abuse, even crime and corruption. In my work as Commissioner for Information I have seen my share of such cases. On the other hand, there are situations in which the government has to restrict public access to certain information at least for a limited period of time in order to complete a transaction or to protect a specific interest. It is therefore necessary that we create a new system which will clearly define who and subject to which conditions can legitimately access information, which level of civil servants is entitled to access such information and under what conditions the public can access such information.
Cvijan: At present we have about 400 regulations, mostly secondary legislation, which govern secret data classification and protection, but only the Defence Law contains a definition of secret data. It is true that there are confidentiality regulations from Tito's time which are still in effect. The enactment of this law is important for the visa waiver regime with the EU - it is one of European Union's requirements - and it is also necessary for the security system. Exchange of confidential data of any kind with foreign security services or military institutions and organizations is impossible without such a law. The existence of so many regulations and secondary legislation at this moment creates a situation in which it is difficult to determine the criteria, to identify the officials responsible for declaring secrets and those responsible for verifying the adequacy of classification, or to determine exactly when the confidentiality marks are to be removed. I do not fully agree that currently the system allows officials to identify information as confidential at their sole discretion. There still are criteria, but they are difficult to find. Our system includes several types of secrets; thus, we have military, official, state, parliamentary and government's secrets, etc. This is contrary to international standards. The idea of this law is to introduce a single type of secret, so the law we are drafting is titled "Secret Data Protection Law". Thus, it is irrelevant whether a secret is military or state secret; what is important is that there is a single type of secret which covers data of interest for the Republic of Serbia and the public cannot access such information for specific reasons, subject to very precise criteria. The law envisages different levels of secrecy, e.g. "top secret", "secret", "confidential" or "restricted". The general principle in all countries is that there are data that are not and can not be accessible to the public. The Commissioner enforces the principle of justified public interest to know, but there is also justified interest for the public not to know some things. There is no reason why any member of the general public in Serbia should be interested in the country's defence plan; if the public knew it, the terrorists would, too. Why would anyone want to know when and where a border police patrol is checking the border? This cannot be made public because then it would be accessible to those who smuggle drugs or traffic people. This is why access to certain information has to be barred.
Politika: Will the Security Information Agency, the Military Security Agency, the Ministry of Internal Affairs and other state institutions establish secrets independently of one another?
Cvijan: The working party entrusted with drafting this law includes members from public authorities which have the highest interest in this issue, such as the Ministry of Internal Affairs, the Security Information Agency, military services and the Ministry of health, as well as civil society members, including a representative of the Commissioner for Information and the Ombudsman. We have examined all drafts made to date and all comparative experiences; the criteria for determining the persons responsible for declaring secrets and the actual levels of secrets will be set out in the law. It will be governed by secondary legislation only to a certain extent - the government will specify the criteria every year, depending on the security load for the country. But no one, including SIA, will be able to arbitrarily affix a seal of confidentiality on certain data and thus "have it over with". Everything will have to be substantiated.
Šabić: According to the criteria set out in the law, public authorities and public officials will determine the status and level of confidentiality in situations envisaged in the law. This is not disputable, but the question is who will control it and are there control and review measures applicable to those who determine the status of secrets. Hypothetically, I could declare a menu secret, and I have actually seen this in my practice - a top secret menu. But this has to be substantiated by a legitimately established interest which prevails over the public's interest to know. Until now it was only important to check whether a document has a "top secret" stamp affixed to it, but the new law introduces ongoing review of this. Yesterday's top secret information does not necessarily have to remain top secret today. While you are trying to track down a criminal, any information about his movement and network of his harbourers will of course be super-secret, but once he is found this level of secrecy is no longer necessary. This is why we need to create a mechanism to make those who give the status of secret to certain information review their decisions and see whether such status is still justifiable.
Cvijan: One of the principles is that every category of secrets can be introduced for a specified period of time. The highest level of secrecy will be maintained for up to 30 years, lower-ranking secrets will be maintained up to 15 years, confidential information will be protected for five years, while restricted information will remain so for two years, with the possibility of renewing this term only once and for the same duration. Information on President Kennedy's assassination will remain secret for 75 years, with a possibility of extension, while the Serbian law will set the maximum secrecy term at 60 years, which is the international standard. Of course, we will also introduce the principle of period reviews to determine whether information has to remain secret. In technical parlance, this is called data combing.
Politika: From the aspect of the new law, would the number of legitimately wiretapped persons every year remain secret?
Cvijan: What could be declared as secret are the identities of wiretapped persons and it is logical that this should be secret.
Politika: Will the Commissioner and the Ombudsman have access to all documents marked as secret under the new law?
Cvijan: Absolutely not. Some data are exchanged on the basis of agreements with other security services or with international organizations under international agreements. Under the Constitution, international agreements prevail over national legislation. If such an agreement stipulates that data covered by it can be accessed by a minister or another official, but it does not specify the Commissioner, then no, the Commissioner will not have access to such data. As far as national secrets are concerned, the law will be maximally open for authorities in charge of control to access data proposed to be marked as secret. But even under the existing regulations, if someone for example marks certain information as official secret to cover up a criminal activity, this is in itself a criminal offence according to the Criminal Code. It has never been possible for someone to just affix a stamp, no questions asked.
Šabić: But the problem is that no one controls this, I have seen such situations...
Authors: Marija Petrić - Branka Mališ
