The Spanish government unearths the Official Secrets Act and will declassify the secrets of the Franco regime and the Transition.

Madrid / BarcelonaThe Spanish government has dusted off the Official Secrets Law that had fallen with the advance of the general elections in 2023. The Council of Ministers has approved the law in the second round, which now moves to the Congress of Deputies, where it will begin its parliamentary process. This law should allow the declassification of documents that were until now protected by the Francoist Secrets Law, which has been in force since 1968. "[With the law] we respond to one of the systematic recommendations of the European Commission regarding the rule of law in Spain [...] The new law complies with the European standards of advanced democracies," defended the Minister of Justice, the Presidency and Relations with Parliament, Félix Bolaños, at a press conference after the Council of Ministers.

The Spanish government approved the draft law that was to replace it on August 1, 2022, but the text never saw the light of day because it wasn't even processed in Congress and lapsed with the early elections of July 2023. Now it's testing again. The text incorporates some changes compared to the proposal from three years ago.

Automatic declassification

For starters, the secrecy of all documents classified 45 or more years ago will be lifted, which includes the Franco era and the Transition. Specifically, information classified before the law came into force will be automatically declassified once that period of time has passed since its classification. Furthermore, individuals who can justify a "professional interest" in accessing the information, for example, researchers or journalists, will be entitled to request declassification once the 45 years have passed.

This will also include classified information related to the 23-F, when the time period imposed by law is met. Specifically, Bolaños indicated that, given that the law comes into force one year after its publication in Official State Gazette (BOE), if the Congress of Deputies approves it in the last quarter of 2025, the law could come into force in the last quarter of 2026. "If this were the case, taking into account that parliamentary support must be worked on, it would be included in 1981 and previous years. That is, [information] linked to the-F would be included," the entry into force.

However, this automatic declassification incorporated by the law may not occur if it poses a risk to national security or defense, as Bolaños has clarified. In fact, the law includes that information may remain secret indefinitely if it is assessed "with justification and in an exceptional manner" that there are reasons for it not to see the light.

In the text prepared in 2022, the declassification of these documents was not automatic, but had to be done at the request "of a natural or legal person directly affected or who can justify a professional interest." Now, the criterion would be reversed: justification would have to be provided for the "non-declassification" of these documents.

Another new feature of the law is that the classification of information will be "exceptional and must be justified." Furthermore, information relating to gross human rights violations or crimes against humanity cannot be classified under any circumstances.

Four categories

The regulations for declassifying documents would relatively reduce the time limits established in the 2022 rule. Materials classified as "top secret" would be automatically declassified after 45 years (the previous text was 50 years), with a single 15-year extension option, which would lead to these documents being stored; in the case of materials classified as "secret," the period would be 35 years (previously 40 years), but extendable to 10 years; for "confidential" matters, it would be between 7 and 9 years (previously 7 to 10 years), and between 4 and 5 years (previously 4 to 6 years) for "restricted" matters.

One of the criticisms made of the regulations at the time by the investiture partners was the time limits, which they considered too long. In fact, The report prepared by the General Council of the Judiciary (CGPJ) also caused a stir. in the Spanish government in the same vein.

The law also stipulates who may classify and declassify documents. In the case of top secret and classified information, the powers will be vested in the Council of Ministers—at the proposal of the Prime Minister and the ministers. However, for the rest of the documents included in the confidential or restricted category, a greater number of positions will have this authority. These authorities include the director of the National Criminal Investigation Unit (CNI), the Secretary of Penitentiary Institutions, and the Chief of the Defense Staff, as well as those of the Army, Navy, and Air Force.

Sanctions

The new law also changes the legal framework regarding sanctions for disclosing classified information. Until now, only prison sentences were provided for. The new text introduces an administrative sanctioning regime, with fines ranging from €30,000 to €2.5 million depending on the severity of the disclosures. The text also contemplates the creation of the National Authority for the Protection of Classified Information, which will report to the Ministry of the Presidency, Justice, and Parliamentary Relations, currently headed by Félix Bolaños.

Skepticism from the investiture partners

The approved law was one of the demands of the investiture partners, particularly the PNV (Basque Nationalist Party), which has been fighting for years to abandon the Francoist text. In fact, the approval of the draft bill this Tuesday comes a week after a meeting between Pedro Sánchez and Basque President Imanol Pradales in the Moncloa Palace. In this sense, although the PNV celebrates the government's step forward, it regrets that it comes "late," in the words of the PNV spokesperson in Congress, Maribel Vaquero. In fact, Vaquero, like EH Bildu and ERC, has already stated that they are not entirely convinced: "It is far from what we asked for, but we will negotiate to reduce the declassification deadlines."