Приложения - Доклады Института права и публичной политики

Настоящий материал (информация) произведён, распространён или направлен иностранным агентом Автономная некоммерческая организация «Институт права и публичной политики» либо касается деятельности иностранного агента Автономная некоммерческая организация «Институт права и публичной политики».

The United Kingdom

1. Does legislation in your country has this type of information as «official information of restricted circulation» or official secret (not state secret)?

There are 3 levels of classification introduced by the Government Security Classifications policy:

Official: The majority of information that is created or processed by the public sector. This includes routine business operations and services, some of which could have damaging consequences if lost, stolen or published in the media, but are not subject to a heightened threat profile.
Secret: Very sensitive information that justifies heightened protective measures to defend against determined and highly capable threat actors. For example, where compromise could seriously damage military capabilities, international relations or the investigation of serious organised crime.
Top Secret: HMG’s most sensitive information requiring the highest levels of protection from the most serious threats. For example, where compromise could cause widespread loss of life or else threaten the security or economic wellbeing of the country or friendly nations¹.

The markings of any information comes from the Government Security Classification (the “GSC“) created in 2018. The GSC does not have a statutory basis but works within the framework of the Official Secrets Acts (1911 and 1989), the Freedom of Information Act (2000) and Data Protection legislation. The Government Security Classifications policy came into force on 2 April 2014. The previous Government Protecting Marking Scheme still applies to documents which were classified prior to 2014.

2. How it is regulated and what are the criteria to tag information as official information of restricted circulation or official secret?

The policy is set by the cabinet office (the department in the UK responsible for supporting the prime minister and Cabinet which is the body of ministers who are in government).

Only the person who tagged the document can classify an asset or change its classification, though holders of copies may challenge it with a reasoned argument with consultation to the department who tagged it.

Official Secrets Act 1989 (the «OSA») has a number of different elements which apply to the classification of information. Damage assessment is a critical element of the OSA, most of the offences in which require there to have been a damaging disclosure of information relating to security or intelligence, defence, international relations, crime or special investigation powers, or of confidential information received from a foreign State or an international organisation. With respect to each type of information, the OSA describes the type of damage which has, or would be likely, to flow from an unauthorised disclosure. The OSA also specifies who is capable of committing offences under it. Different offences apply to: members of the security and intelligence services; persons notified under section1 of the OSA; Crown servants; government contractors; and any person.

Freedom of Information Act 2000: Classification markings can assist in assessing whether exemptions to the Freedom of Information Act 2000 (the «FOIA») may apply. However, it must be noted that each FOI request must be considered on its own merits and the classification in itself is not a justifiable reason for exemption. Any staff (including contractors) who handle, or are likely to handle sensitive assets classify such information as that are made aware of the consequences of handling such information.

3. What is the procedure to tag information as official information of restricted circulation or official secret?

Classifications must be capitalised and centrally noted at top and bottom of each document page, save at OFFICIAL where the document marking is optional. All material produced by a public body in the UK must be presumed to be OFFICIAL unless it is otherwise marked.

The classification of information should be decided by its originator(s) — every effort should be made to consult the originator(s) before disclosing classified information, for instance in response to a freedom of information request protectively marked material may also be marked with a descriptor, or privacy marking, which identifies sensitivities around distribution and handling.

4. Who possesses the authority to tag information as official information of restricted circulation or official secret?

Official/sensitive: all information created, processed, generated, stored or shared within a government ministry will be classified as official
The person who creates the information decides on how it can be labelled in accordance with risk profiles and Government Security Classification Guidance (for example, as appended to this document)

5. What are the limitations to tag information as official information of restricted circulation or official secret, i.e., what types of information cannot be tagged as official information of restricted circulation or official secret?

SECRET and TOP SECRET information will typically require bespoke, sovereign protection, but OFFICIAL information can be managed with good commercial solutions that mitigate the risks faced by any large corporate organisation.

6. If information is tagged as official information of restricted circulation or official secret, who can have access to this information?

Individuals who are «security checked» or «developed vetted» will be asked to deal with SECRET or TOP SECRET work. A key principle of the UK regime is that access to sensitive information, (official, secret and top secret) must only be granted on the basis of a genuine «need to know» basis. It is critically important to note that the failure to share and exploit information can impede effective government business resulting in significant consequences.

It is felt that access to sensitive information should be no greater than necessary for the efficient conduct of an organisation’s business and limited to those with a business need and the appropriate personnel security control.

The «need to know» principle applies wherever sensitive information is collected, stored, processed or shared within government and when dealing with external public and private sector organisations.

There are exceptions to the «need to know» basis especially if there is an urgent need to share sensitive information to those without the necessary personnel security control, for example when immediate action is required to protect life or to stop a serious crime. In these circumstances, a common sense approach to sharing information should be adopted².

7. What are the most common areas where information tagged as official information of restricted circulation or official secret? E.g., in Russia, most of the documents tagged as official information of restricted circulation belong to the Federal Penitentiary Service and the Ministry of Interior.

Information tagged as «official» information is commonly found in all routine public sector businesses and its respective operations and services. As a result of this, sensitive information with the official classification can be expected to be found across all governmental departments.

«Secret» information most commonly relates to very sensitive information that justifies heightened protective measures to defend against credible threats against the United Kingdom. An example of where information may be tagged as secret is where the effect of accidental or deliberate compromise, of that information, would be likely to result in serious damage to the operational effectiveness or security of UK or allied forces, in respect of military tasks. Subsequently, you would commonly expect to find this classification within the Ministry of Defence and Home Office amongst others.Similarly, the «top secret» classification extends to a wide range of issues which includes, amongst others, the risk of damage to the effectiveness or security of the UK or allied forces or long-term damage to the UK economy. The broad nature of the ‘top secret’ definition means that documents with this classification could be found in many areas, with the Ministry of Defence and HM Treasury being just two examples³.

8. Can individuals/NGOs challenge the decision to tag information as official information of restricted circulation or official secret?

In the UK context, it is established that only originators can classify an asset or change its classification. The UK guidance stipulates that holders of copies of the classified information may challenge the classification with a reasoned argument. Given the requirement of being a holder of a copy, individuals/NGOs would not be able to challenge the respective classification of any sensitive information unless they are recipients of the information⁴.

9. What is the balance between the right to access to information held by state and official secret?

With regards to the right to access to official information, the UK has adopted personnel security guidance to address this. In respect of official information, this should be limited to authorised individuals for legitimate business reasons.

As for secret information, access should be limited to known and trusted individuals. A similar approach is adopted for top secret information however there should be a high assurance that access is strictly limited to known and trusted individuals сlassifications⁵. The distinction between secret and top secret information is subtle but is one which must be carefully noted.

10. Are there any human rights issues around tagging information as official information of restricted circulation or official secret?

Having researched into this question, we do not believe that there are any pertinent human rights issues around the tagging of information.

Germany

1. Does legislation in your country has this type of information as «official information of restricted circulation» or official secret (not state secret)?

Yes. In Germany, this classification level corresponds to the lowest of the four legally defined levels of classified material (CM — «Verschlusssachen»):

top secret («streng geheim»)
secret («geheim»)
confidential («VS-vertraulich»)
restricted («VS-nur für den Dienstgebrauch»).

2. How it is regulated and what are the criteria to tag information as official information of restricted circulation or official secret?

a) General regulation regarding classified material

The general regulation regarding the classification of material is stipulated in the Security Clearance Act (Sicherheitsüberprüfungsgesetz, SÜG). This act regulates on the one hand the personal secrecy which means the checks of persons executing a security-sensitive activity. This procedure aims at the verification if the integrity of checked persons is to be doubted and thus represents a security risk.

On the other hand, the act regulates the material secrecy which regards the technical and organizational measures to protect information subject to secrecy from theft or knowledge by unauthorized persons. The classification of material is part of this material secrecy.

According to section 35(1) Security Screening Act, the Federal Ministery of the Interior, for Construction and Home Affairs passed the Classified Material Instructions (Verschlusssacheanweisung) which details the regulation for classified material for federal authorities and public-law institutions under direct federal control.

It does not concern certain federal organs such as the Parliament (Bundestag), the Federal Council (Bundesrat) or the Federal Constitutional Court (Bundesverfassungsgericht) which all have their own regulation which in many parts relates to the federal regulation in the Classified Material Instructions. The same applies to matters of the federal states (Länder).

For some authorities which might be a special target of attacks on confidentiality, integrity and availability of classified material, such as the Federal Intelligence Service, special regulation which goes beyond the Classified Material Instructions can be enacted.

Relevant are further Annex III to the Classified Material Instructions, which details the procedure of classification in general as well as Annex V, which contains a guidance for the handling of classified material as restricted.

For all levels of classified material, the basic principle of «need to know» is applicable (section 3 (1) phrase 3 Classified Material Instructions).

The term of classified material means any facts, objects of information needing to be kept secret in the public interest, irrespective of their form (e.g. documents, drawings, maps, photocopies, photographic material, electronic files and data carriers, electrical signals, appliances, technical equipment or spoken words). According to their need for protection, they are to be assigned classification levels by or the instigation of an official body.

In general, a classification is only possible if it regards the public interest, especially to protect the welfare of the Federation or a federal state (section 1 Annex III to Classified Material Instructions). The public interest is especially concerned by information regarding the

internal or
external security or
the external relations

of the Federation or a federate state.

b) Criteria for classified material as restricted

Regarding federal matters, section 4(2) of the Security Clearance Act defines four classification levels of material. According to no. 4, material is to be assigned the classification restricted if unauthorized access may be to the detriment to the interests of the Federal Republic of Germany or one of its federal states (Länder). To the detriment means only a material or immaterial disadvantage compared to harm which is the key criterium to assign material to the higher level of secrecy as confidential and requires the danger of a damage.

The law (no. 3.4 Annex III to Classified Material Instructions) cites as examples for classified material as restricted documents about

search documentation in the fields of terrorism or extremism or
secret protection documentation.

Further examples are

final reports on security checks of persons,
special internal instructions and duty rosters,
records of computer networks of the departments in charge of secret protection,
compilations of police investigations which are not individually classified but which overall reveal police procedures.

The need for secrecy in the public interest may also arise from commercial, invention, fiscal or other private secrets or facts regarding the personal area of life. A simple private interest is not sufficient but the need for secrecy must result from the public interest. This could be contracts with companies about military hardware. Possible domestic political consequences of the knowledge of the material, such as the loss of an official position or reputation of top-ranking politicians cannot justify a classification.

3. What is the procedure to tag information as official information of restricted circulation or official secret?

The body issuing classified material is to decide on the need for and level of classification (section 15 Classified Material Instructions).

In general, a classified material restricted is limited in time to 30 years. Regarding the justification of the classification the editor can define a shorter deadline (para. 16 al. 1 Attachment V to Classified Material Instructions). This deadline cannot be extended.

If the necessity of a classified information is not applicable any more before termination of the classification deadline, the editor reclassify or declassify (para. 19 Classified Material Instructions).

In case of a classification, the editor has to demonstrate conclusively which damages, dangers or disadvantages might exist for the existence, security or interests of the Federation or one of its federal states in case of knowledge of the classified information by an unauthorized person.

A classified material as restricted needs to designate the level of secrecy, the editor, the date of the classified material and the deadline of classification if it is less than 30 years.

4. Who possesses the authority to tag information as official information of restricted circulation or official secret?

The authority to tag material as restricted lies with the body which edits or instigates the edition of the information to be classified. The same applies for the reclassification or declassification of material.

The proper classification is controlled by the next higher authority.

A simple personal interest, e.g. the notbeknown of particular course of action such as tax evasion, cannot justify a classification.

Illegal or immoral behavior of domestic decision makers is not in the public interest. Otherwise, this would create a conflict to the principle of democracy and the free opinion making would be obstructed if certain facts or circumstances would only be known to a small cercle of persons and withdrawn from the judgement of the citizens.

On the contrary, the behavior of foreign decision makers might justify a classification as the relations to foreign countries could be stressed by such prejudicial information.

6. If information is tagged as official information of restricted circulation or official secret, who can have access to this information?

Whereas persons with possible or factual access to material classified as confidential, secret or top-secret must pass a security screening according to the Security Screening Act, this is not necessary for persons with access to classified material as restricted.

In principle, any person can have access to classified material as restricted if the knowledge is an official necessity. The justification to access such information is not given by the simple office, grade or function but requires an individual necessity.

Such persons must only respect and oblige to the Attachment V to the Classified Material Instructions, which contain a guidance for the handling of material classified as restricted. Annex V contains details on the deadlines applicable, labelling, storage, transmission and distribution, also by technical communication means, entrainment and destruction of classified information for official use only. The person concerned must sign the reception of Annex V.

According to information by the Federal Government, approximately 50% of the classified material in the Federal Ministry of the Interior is classified as restricted.

There is no further information publicly available on the areas concerned by a classification of material as restricted.

8. Can individuals/NGOs challenge the decision to tag information as official information of restricted circulation or official secret?

Yes. There is no direct, but an indirect possibility to challenge the decision.

The federal Information Freedom Act (Informationsfreiheitsgesetz, IFG) grants everybody the possibility to access official information. But according to para. 3 no. 4 Information Freedom Act the right to access information does not exist (among other) if the information is subject to the material or organizational secrecy protection of classified material. This means that the classified material as restricted cannot be accessed to by the means of the Information Freedom Act. Classification means the material classification, not the formal classification. Thus, the right to access is not yet denied if the information in question is only formally declared as classified material, but it also needs to meet the material criteria for its classification. In case that a person claims to access to a classified item, the court has to verify whether the item corresponds to the criterium for classified material as restricted, independently of the fact that the issuing body has or has not classified it as such.

9. What is the balance between the right to access to information held by state and official secret?

In general, the right to access to information does not extend to information held by state and official secret. Only, once the classification deadline for such a document has ended, the right to access prevails.

10. Are there any human rights issues around tagging information as official information of restricted circulation or official secret?

The research regarding the above questions has not revealed any human rights issues around classified material as restricted.

Italy

— Summary

In Italy, «protection of classified information» means the set of rules and activities aimed at protecting news, data, objects, materials, etc. that concern the fundamental interests of the Country and whose knowledge and/or knowability is therefore circumscribed and regulated in detail.

Besides State secret status information, the main measures provided by the Italian legal system for information protection are security classifications (which are structured in four levels and limit the knowledge of an item of information, an act, a document, etc. to areas which become increasingly restricted the higher the level of secrecy attributed to the information, act, or document) and security clearances (meaning the measures enabling individuals or legal entities to access classified information).

The structure that carries out this task of protection is the Central Secrecy Office, which is established within the Presidency of the Council of Ministers.

The security classification level is assigned by the authority who creates the document or record or first acquires the information, depending on the seriousness of the damage that unauthorized disclosure of the information would cause to the security of the State.

Access to classified information is allowed only to those persons who have a need to know it by reason of the task and/or activity to be performed and have the appropriate security clearance.

The matters in relation to which a security classification can be applied (as well as the authorities with the power to classify the documents) are listed by the relevant law and regulation provisions and are quite similar to those for which the State secret status can be affixed, mainly referring to: political, economic, financial, industrial, scientific, technological, health and environmental interests; the protection of popular sovereignty, unity and indivisibility of the Republic; the protection from any form of subversion or terrorism coming from outside or inside the national territory and the related measures and apparatus of prevention and contrast; the tasks, attributions, planning, constitution, dislocation, employment, personnel and structures of the security agencies; etc.

Differently from State Secret, security classifications are not opposable to the judicial authority. Furthermore, a Parliamentary Committee for the security of the Republic is entrusted with the task to verify that the activities of the intelligence system (of which the Central Secrecy Office is part) are carried out in observance both of the Constitution and of the law and in the defence and exclusive interests of the Republic and its institutions.

— Q&A

1. Does legislation in your country has this type of information as «official information of restricted circulation» or official secret (not State secret)?

Besides State secret status information, the main measures provided by the Italian legal system for information protection are:

– security classifications, which limit the knowledge of an item of information, an act, a document, etc. to areas which become increasingly restricted the higher the level of secrecy attributed to the information, act, or document. The possible classifications are the following:

«Segretissimo» (which corresponds to the USA «Top Secret» level);
«Segreto» (which corresponds to the USA «Secret» level);
«Riservatissimo» (which corresponds to the USA «Confidential» level);
«Riservato» (which does not have an equivalent in the USA system).

– security clearances, meaning the measures enabling individuals or legal entities to access classified information.

The restrictions in Italy include also: (i) the category of «controlled unclassified information» and «information for exclusive dissemination»⁶(recognizable by the indication «EXCLUSIVE ITALY»), to protect the national strategic heritage and which may be known by subjects in possession of exclusive Italian nationality; (ii) documents classified within the UE and those regarding agreements between Italy and other⁷.

2. How it is regulated and what are the criteria to tag information as official information of restricted circulation or official secret?

The relevant regulation consist of Law no. 124/2007 (named «Intelligence System for the Security of the Republic and new Provisions governing Secrecy») and various Decrees of the President of the Council of Ministers («DPCM») that regulate specific aspects according to the same Law no. 124/2007.

As regards the criteria, the regulations list some possible matters of relevance and make reference to the criteria ordinarily followed in international relations.

As far as State secret is concerned, Section 39 of Law no. 124/2007 provides that «the records, documents, information, activities and every other thing the disclosure of which may be used to damage the integrity of the Republic (including in relation to international agreements, the defence of its underlying institutions as established by the Italian Constitution, the State’s independence vis-à-vis other States and its relations with them, as well as its military preparation and defence), shall have State-secret status». For the purposes of assessing the suitability to the said damage, the direct and indirect consequences of knowledge of the subject of the secret by unauthorized persons has to be taken into account, provided that a current danger to the State derives from it⁸.

As far as security classifications are concerned, Section 42 of Law no. 124/2007 provides that «security classifications shall be attributed for the purposes of limiting the knowledge of information, documents, records, activities or things solely to those persons who need to have access to them by virtue of their personal institutional functions»; and that «the attributable classifications shall be: “top secret”, “secret”, “confidential” and “restricted”. The classifications shall be attributed according to the criteria ordinarily followed in international relations».

Classified documents are any type of support — tangible or intangible, analogue or digital — containing classified information and, therefore, subject to physical, logical and technical protection measures from the moment of its origin until its destruction or declassification.

As regards the security classification levels, DPCM no. 7/2009 in accordance with Section 42, para. 7, of Law no. 124/2007, determines the scope and the matters of each level of security and the authorities which are granted the power to classify the documents (see the answer to question no. 7 for further details).

The structure entrusted with the task to direct, coordinate, advise on and monitor the application of the acts, regulations and every other form of provision governing the administrative protection of State secrets and the security classifications is the Central Secrecy Office («UCSe») established within the Department of Security Intelligence («DIS»), which in its turn is established within the Presidency of the Council of Ministers.

As far as security clearances are concerned, the UCSe issues security clearances for those who need to handle information with a secrecy classification higher than «confidential». The UCSe also negotiates and prepares information security agreements with international organizations and foreign Countries. The security clearances are issued by the UCSe after having ascertained the reliability of the person — physical or juridical — in terms of loyalty to the Institutions of the Republic, to the Constitution and its values, as well as of strict respect for secrecy. A distinction is made between authorisations for legal entities and authorisations for natural persons.

3. What is the procedure to tag information as official information of restricted circulation or official secret?

Whilst State secret status can be applied only with specific provision of the President of the Council of Ministers (as Head of National Organization for Security), security classifications are affixed by an administrative act by the authorities which are granted the right to do so.

The person who applies the security classification has to identify the parts within every record or document that must be classified and must specifically establish the level of classification corresponding to each separate part. The President of the Council of Ministers has the duty to verify that the rules governing the security classifications are observed by the said authorities.

If not prolonged by means of a reasoned order (issued by the authority who affixed the security classification or, in case of extension beyond fifteen years, by the President of the Council of Minister), security classification shall automatically be downgraded to a lower classification level upon the expiry of five years from the date of its original application. Once a further five-year period has expired, all classification restrictions shall be lifted.

4. Who possesses the authority to tag information as official information of restricted circulation or official secret?

Security classifications can be applied (and may be upgraded) by several subjects, which are identified by DPCM no. 7/2009. They are the following:

а) the authorities that form the document, act or acquire it, or are responsible of the thing, or acquire from abroad documents, acts or things;

b) the top authorities of each Ministry, the DIS, of the External Intelligence and Security Agency (AISE) of the Internal Intelligence and Security Agency (AISI), of each Armed Force, General Staff, Armed Corp, research organization;

c) the heads of each administrative decentralized unit which depends on the authorities listed indicated in letter b) (diplomatic representations and consular offices; Prefectures; territorial Offices of the Government; Police headquarters, Military commands in Italy and abroad);

d) security officials and security officers of the central security bodies of the authorities indicated in letter b);

e) the designated security officers and designated security officials of the decentralized administrative units indicated in letter c);

f) the «Economic operator» interested in the handling of classified information classified information in the industrial sector.

Specific limitations apply just to the affixing of State secret status, as Law no. 124/2007 states that in no circumstances information, documents or matters relating to acts of terrorism, acts subverting the constitutional order or acts constituting the criminal offences referred to under Articles 285, 416-bis, 416-ter and 422 of the Italian Criminal Code (relating to crimes of massacre, mafia association and political-mafia electoral exchange) can have such status.

Furthermore, according to Article 204, para. 1-bis, of the Italian Code of Criminal Procedure, facts, information or documents concerning conducts carried out by members of the Security Intelligence Services in violation of the law governing the special crime-exemption regime provided for their activities cannot have State secret status⁹.

6. If information is tagged as official information of restricted circulation or official secret, who can have access to this information?

With reference to State secret an extremely small number of subjects may have access to this information, given that, according to section 39 of Law no. 127/2004, «the information, documents, records, activities, things and places having State secret status shall be made known solely to the persons and authorities called to carry out essential functions in their regard, to the extent and within the limits that are indispensable for performing their respective tasks and achieving respectively established goals».

Access to classified information is allowed only to those persons who:

have a need to know it by reason of the task and/or activity to be performed;
in case of information classified as «confidential», «secret» and «top secret», have the appropriate security clearance.

It is worth pointing out that whilst the State secret status could be opposed to the judicial authority (except to the Constitutional Court), the security classifications are not opposable to the judicial authority.

The State secret status was affixed for example on the Ustica air disaster case and on the kidnapping of Abu Omar (extraordinary rendition) case.

As regards the security classification levels, DPCM no. 7/2009 lists the matters in relation to which such tag can be affixed. Among the relevant matters, the following are listed:

political, economic, financial, industrial, scientific, technological, health and environmental interests;
the protection of popular sovereignty, unity and indivisibility of the Republic;
the protection from any form of subversion or terrorism coming from outside or inside the national territory and the related measures and apparatus of prevention and contrast, as well as cooperation in the international arena for security purposes, with particular reference to the contrast of terrorism and organized crime;
the offices and equipment set up for the protection and operation of institutional bodies in emergency situations;
measures of any kind intended to protect national and foreign personalities whose protection is relevant to the supreme interests of the State, such as: the integrity of the Republic, also in relation with international agreements; the defence of the Institutions placed by the Constitution on its foundation; the independence of the State with respect to other States and relations with them;
the tasks, attributions, planning, constitution, dislocation, employment, personnel and structures of the DIS, of the AISE, of the AISI and of the administrations having as their institutional tasks public order and public security, as well as civil defence and civil protection;
the authentication data or cover data of the members of the DIS, AISE and AISI and those of the cover data of the same bodies;
the documentary positions of the members of the DIS, AISE and AISI;
specialized training and professional preparation for the performance of institutional activities, as well as the areas and sectors of employment, operations and information activities, modalities and operational techniques of the DIS, the AISE and the AISI, as well as the administrations having as their institutional task public order and public security, civil defence and civil protection;
relations with the intelligence bodies of other States; the infrastructures and operational and logistic centres, the arrangement and functioning of the telecommunications, radiogoniometric, radar and crypto systems and networks, as well as data processing, belonging to the DIS, AISE and AISI, as well as those belonging to other administrations having as institutional tasks public order and public security, civil defence and civil protection;
armament, equipment, vehicles, special means and materials supplied to personnel belonging to the DIS, the AISE and the AISI, as well as to other administrations having as their institutional tasks public order and public security, civil defence and civil protection;
material or whatever is related to the State’s war efficiency or military operations planned or underway;
the methods and facilities of communication and systems for transceiving and processing signals for the Armed Forces;
information regarding the denial, the withdrawal and other limitation relating to the security permits and clearance in the industrial sector;
audit reports relating to the protection and safeguard of classified information;
documents relating to the organization, the management and the functioning of the activities aimed at classified communication security;
mathematical logics and algorithms aimed at encryption of classified information;
hardware and software specifically developed to ensure specific security functions;
documents relating to the security auditing activity on restricted areas and classified structures in Italy or abroad;
list of the infrastructures which are critical for national security;
etc.

8. Can individuals/NGOs challenge the decision to tag information as official information of restricted circulation or official secret?

There is not specific regulation entrusting individuals or NGOs with this power.

9. What is the balance between the right to access to information held by state and official secret?

The system mainly relies on the accountability of the relevant subjects, such as the President of the Council of Ministers (who has the power to confirm or not the imposition of limits to access to information) and the Constitutional Court (to which not event State secret can be opposed).

A further element that helps to ensure the correct application of the discipline at stake and to avoid abuses of the same is the presence of the Parliamentary Committee for the security of the Republic, established by Article 30 of Law no. 127/2004. The Committee is composed of five deputies and five senators¹⁰, guaranteeing in any case the equal representation of the majority and the oppositions. One of the tasks of the Committee is that of constantly and systematically verifying that the Security Intelligence System’s (of which both the UCSe and the security agencies are part) the activities are carried out in observance both of the Constitution and of the law and in the defence and exclusive interests of the Republic and its institution.

10. Are there any human rights issues around tagging information as official information of restricted circulation or official secret?

Human right issues might have arisen mainly with regard to State secret: for instance, as outlined by European Court of Human Rights in the Abu Omar case, the State secret status could constitute an obstacle to the search for the truth regarding serious crimes involving the violation of human rights (such as the «extraordinary rendition»-related cases), as it might ensure impunity for those responsible¹¹.

Although the issue of confidentiality of information has also come up (although somehow indirectly) in proceedings related to alleged human right violations, this has been less significant (and has had less media coverage)¹².

France

— Preliminary Remarks

Russian legislation provides several categories of restricted information such as a state/commercial / medical/ etc. secret. In addition, there is a separate category of restricted information — «official information of restricted circulation», i.e., unclassified information relating to the activities of government authorities and their affiliates, the dissemination of which is restricted by service exigency.

Those information, which are neither state nor commercial secret, might include some information related to the public interest or human rights. For instance, regulations of prisoner transportation are official information of restricted circulation, and only government officials have access to this information. Our understanding is that authorities sometimes refuse to provide information about their activities and go as far as not publishing regulations on the basis of the «restricted circulation»

The subject matter of the present research has been to determine whether such type of «official information of restricted circulation» exist in France and under what framework.

We have not encountered the exact same type of restriction and issues in France as all regulations are public, and to take an example, the transfers and extractions of detainees are governed by various freely accessible decrees¹³. In other words, all the regulations (i.e., documents containing abstract and mandatory rules) are public.

There are still limitations on the access of certain type of non-regulatory documents and this paper will thus focus on 1) the legal framework applicable to the access to administrative documents, 2) the «Restricted Circulation» (Diffusion Restreinte) marking, which could be seen as the notion closest to the Russian official information of restricted circulation. However the legal regime is different and still very liberal.

Note that we have not found any specific case law dealing with the Diffusion Restreinte marking, which means that our presentation of the latter is rather general.

— I. Administrative regime of access to administrative documents and information

French law n° 78-753 of July 17, 1978, codified in book III of the code of relations between the public and the administration (hereafter «CRPA»), instituted the principle of freedom of access to administrative documents. Thus, any person who requests it has the right to obtain communication of administrative documents, unless it falls in one of the legal exceptions. The fact that the right belongs to «any person» means that the applicant does not have to justify nor to explain the reasons why the access is requested.

Established in 1978, the Commission for Access to Administrative Documents (hereafter «CADA» — Commission d’accès aux documents administratifs) is an independent administrative authority responsible for ensuring freedom of access to administrative documents and public archives as well as the re-use of public information.

1.1 What is a document «of a communicable nature»?

Right of access is exercised if the object of the request meets the three following conditions: a) that it is a document, b) of an administrative nature, c) which the administration actually has in its possession. The right of access therefore does not oblige the administration to prepare new documents to respond to requests.

Another condition for exercising this right is that the document must be formally completed, which excludes, for example, drafts or studies in progress.

Similarly, documents that are preparatory to a decision cannot be communicated until the decision has been made. The law does not require the administration to disclose documents that have been publicly released, which any person can obtain by his own means.

Certain documents are not, by nature, communicable. This is the case for the opinions of the administrative sections of the Council of State, the documents of the financial jurisdictions (Court of Auditors and regional audit chambers), and the accreditations and audits of health establishments.

Another case of document that cannot be communicated is any document containing secret information in relation with military defense; this time the lack of communicability is not related to the category of the document but to its content; however, in order to protect this latter kind of documents, they are classified as Secret Défense or Confidentiel Défense. Communicating such documents to persons not allowed to have access to them is a criminal offense.

A third kind of limitation concerns documents concerning named persons: they may only be communicated to the persons concerned or to their representatives. Similarly, third parties may not access information covered by industrial and commercial secrecy.

In order to preserve the confidentiality of non-communicable information, the administration may communicate a document by hiding certain sections.

1.2 CADA’s scope of intervention

The CADA disposes of four means of action to fulfill its mission:

Any person, individual or administrative authority, who has received an unfavorable decision regarding access to administrative documents or the reuse of public information or who has not received a response within one month, may refer the matter to the CADA so that it may decide whether or not the document can be disclosed. Before referring the matter to the Commission, a request for access to or publication of administrative documents or for the re-use of public information must be sent to the administration holding the document. In case of refusal, the CADA can be seized (see points 1.2 and 1.3 below);

It can also be referred to by any administrative authority that needs to be informed about the communicable nature of an administrative document or a public archive, about the on-line publication of administrative documents or about the possibility and conditions of re-use of public information;
It can propose to the government the necessary modifications to improve the exercise of the right of access and the re-use of public information;
It can also pronounce sanctions against persons who re-use public information in violation of the prescriptions of the code of relations between the public and the administration.

1.3 Referral to the CADA

1.3.1 Preliminary remarks

Article L. 342-1 of the Code of Relations between the Public and the Administration provides that an appeal to the CADA is a mandatory prerequisite to any legal action. A contentious appeal brought before the administrative judge in the absence of an appeal to CADA is inadmissible.

Requesting an opinion from the CADA on a refusal to communicate does not require any particular formalism. It is a free procedure that may be necessary in the event of a persistent refusal by the authority holding the desired document.

However, it is necessary to provide the CADA with the information required to open a file, in particular by providing proof of a request for communication to the administration.

1.3.2 Delays

In principle, the matter must be referred to the CADA within two months of the notification of the refusal or of the intervention of the tacit refusal.

Failure to refer the matter to the CADA within the time limit taints the applicant’s conclusions with a «manifest inadmissibility».

However, the time limits are only opposable to the applicant if the decision to refuse communication:

was notified to him or her with an indication of the channels and time limits for appeal, including the obligation to refer the matter to the Commission beforehand;
or, in the case of a tacit refusal, on condition that the request for communication addressed to the administration has given rise to an acknowledgement of receipt indicating the time limit for implicit rejection as well as the time limits and channels for appeal.

1.3.3 Method of referral

Requests may be sent to CADA on plain paper, by letter, by electronic means (link e-mail) or via an online form. Under the terms of article R.343-1 of the Code of Relations between the Public and the Administration, they must include, in a legible manner:

A precise subject, with a detailed list of the requested documents;
The name and surname of the applicant if he is a natural person, as well as his postal and, if necessary, electronic contact details. For legal entities: its form, its name, its registered office and the name and surname of the person entitled to represent it;
A of the initial request for a document that has remained unanswered for more than a month, and, if applicable, the administration’s express refusal.

It is recommended to briefly recall the context of the request and the nature of the documents requested. Otherwise, the request could be considered inadmissible, as it is too vague.

The request may only relate to the refusal to disclose itself. The CADA is in no way competent to rule on the legality of an administrative act or practice, or to provide a person with an “interpretation of Book III of the Code of Relations between the Public and the Administration”: only the administrative authorities may address requests for advice to the CADA. Moreover, it is not up to the CADA to communicate the requested documents: this is the sole responsibility of the administration.

1.3.4 Procedure

The CADA acknowledges receipt of the request and contacts the administration designated by the applicant as being the author of a refusal to provide access, so that it can be sent the disputed documents and the reasons for the refusal. The authority in question is required, within the time limit prescribed by the Commission’s Chairman, to provide the Commission with all relevant documents and information and to provide the necessary assistance.

— II. Specificities of the «Diffusion Restreinte» marking

In spite of this liberal regime, some documents can be marked with the mention Restricted Circulation (Diffusion Restreinte), which indicates that the information must not be made public and must be communicated only to persons who need to know it in the exercise of their functions or in the performance of their duties. This is not is not a classification level but a protection mention affixed by a ministerial authority.

This designation does not confer on the information concerned the criminal protection specific to national defense secrets, but its disclosure to the public is considered a breach of professional discretion, which means that administrative sanctions can be imposed on the civil servant who discloses them to people who are not supposed to have access to them.

At first sight, this marking could be seen as close to the Russian category of official information of restricted circulation (although it does not relate to regulations). However, as explained below, the legal regime applicable to documents marked as Diffusion Restreinte is, in fact, very liberal since it is the general regime presented in section I above.

1. Types of information concerned

On March 15, 2021, France published an order approving Ministerial Instruction No. 900 (hereafter «IM 900») on the protection of the secrecy of Diffusion Restreinte and sensitive information. IM 900 describes the general organization of the protection of national defense secrets within the Ministry of the Armed Forces, and in particular specifies the conditions for using the DR designation.

It is thus specified that the use of the Diffusion Restreinte designation is based on the need to avoid the disclosure of information whose gathering or use may:

Lead to the discovery of a national defense secret or compromise the protection and security of national defense;
Undermine public security or order, the reputation of the armed forces, or the private lives of its citizens;
Harm the economic or financial interests of private companies or public establishments because of their military activities.

Therefore, must receive at least the mention Diffusion Restreinte, the information and documents:

Defining, in general terms, the objectives, options, and criteria for choices made in the various fields of French military, operational or technical activity;
Relating to public order (reports of events, etc.);
Covered by this mention following a security agreement concluded with a foreign country;
Of exercise for which defense confidentiality is only of limited and temporary interest;
Or information emanating from another ministry, the dissemination of which is not considered desirable by that ministry.

2. Condition of use of the Diffusion Restreinte marking

It is the responsibility of each State administration authority, head of institution or head of department, to decide whether or not to restrict the circulation of information.

Any signatory of a document containing information meeting the criteria specified above is responsible for the attribution of the Diffusion Restreinte marking.

Under the authority of the Ministry of the Armed Forces, the following authorities are authorized to mark and access information and materials as Diffusion Restreinte:

Public institutions under the Ministry’s supervision;
Operators of vital importance (as defined in the national security guidelines for the military activities of the State and the defense industries);
Local and regional authorities and legal entities under private law with which it has signed an agreement;
Legal entities, public or private, with which it has concluded a public procurement contract or contract or a subsidy contract, as well as subcontractors of these legal entities who also need access to information or media protected by the information or media protected by the DR designation notice for the performance of the performance of work performed in support of the prime contract;
The personnel who, within these various organizations, need, for the exercise of their function, to access information or materials protected by the DR designation..

3. Elaboration and marking

The preparation of Diffusion Restreinte documents may only be carried out on the premises or enclosures of a department or of public or private organizations offering sufficient security conditions to prevent access to these documents by unauthorized persons.

Restricted documents must be identified on the first page with the references of the issuing body, the date of issue and the registration number.

They must be marked as follows:

On each page, the Restricted Distribution stamp affixed in the middle of the top of the page;

For messages and other computerized documents, the words «Diffusion Restreinte» at the beginning of each page;
For bound documents, the «Diffusion Restreinte» stamp affixed in the middle of the front page and the cover.

4. Access

Restricted information must only be communicated to the persons who need to know it for service necessity, i.e. within the limits of their attributions:

The civil and military personnel of the ministries;
Designated personnel of companies holding a public contract awarded by an organization under a ministry; these personnel must be informed of the rules of discretion to be applied with regard to the information and of their contractual responsibilities.

A disclosure of such information beyond this circle is considered a breach of professional discretion and may result in disciplinary or professional sanctions for the staff who caused it.

However, it is our understanding that those rules only apply to the spontaneous disclosure of such marked documents by civil servants (or military) to third parties. That means that the general legal framework applicable to the access to administrative documents remains applicable when a document has been marked by the mention Diffusion Restreinte.

In other words, the mention does not prevent the communication of an administrative document to a person who would request it according to the legislative provisions of the code of relations between the public and the administration, unless the communication of the document would infringe, among other things, the defense secret, the industrial and commercial secret (strategic aspects) or the medical secret etc. The CADA remains competent to address any disagreement about the disclosure of such document between a requesting party and the relevant ministry. Indeed, the CADA explicitly mentions in its website that, for instance, a diplomatic telegram, even marked as Diffusion Restreinte, does not escape, because of this marking alone, from the freedom of access regime.

Conclusion: there is not any category of administrative document escaping from the freedom of access legal framework, other than the limited exceptions mentioned in 1, which, if we want to summarise them, intend to protect the military defense of the country, and individual personal rights or interests. There is, however, a kind of marking that, at first look, could seem akin to the Russian official information of restricted circulation but that, actually, only limits the spontaneous disclosure of documents by civil servants, without restricting the liberal freedom to access that French law grants to «any person».

The United Kingdom

Germany

Italy

France