Opinion
Of the Access to Information Programme on the Law on the Protection of Information, Classified as State or Official secret

The draft Law on the Protection of the Information, classified as state or official Secret is one of the laws that are needed both to guarantee the protection of the human rights (the right to access government information and the personal data protection) and to speed up Bulgaria's integration in NATO. The NATO requirement to bring the national legislation of the candidate countries in compliance with the NATO standards in this area is a main element of the efforts of Bulgaria to become a [pert of the NATO structures.

We highly appreciate the possibility to become acquainted with the draft law and to give our opinion on the proposed bill.

After careful examination of the law, these are the questions and remarks we were able to formulate:

1. The draft law does not envisage a registry/catalog to be created in the government agencies, of the documents containing classified information. This will substantially limit:

a) the exercise of the right to access information and the civic control over the term when the information is not to be disclosed
b) the work of the respective bodies with classified information
c) the control over the decisions whether or not to classify a certain document
d) the procedure the citizens will have to follow in order to obtain information. W
We should also bear in mind that the Access to Public Information Act (APIA) provides for partial access to documents, when those contain information, classified as State or Official Secret. This is the reason why it is important to have an exhaustive list of the documents that contain classified information.

2. It is unclear how will the proposed law operate in terms of time period. A particularly acute problem is one of the review of the classified information with regard to art. 10 sect. 2. It is important to introduce a provision that will proclaim that the terms prescribed in the law apply for all the existing documents and that those terms start from the date of the creation of the document and not from the date of the law's enactment.

3. The article 38 should clearly state that the level of classification is being changed the term is not renewed, but continues under the conditions of the new level of classification.

4. The competences of the NASI (National Authority on the Security of Information) under art. 11 sect. 1, subsect. 2 regarding the third parties must be clarified.

5. The definition under art. 27 sect.1 must be clarified.

6. In connection with the definition of the Statye secret the list (Annex 1) of the information, classified as state secret must be properly systematized. The separate sections must be given a heading to define the type of the protected interest. Another check is needed of every information in the Annex whether the information listed there corresponds to a certain interest in need for protection.

7. In connection with the definition of the State Secret in article 28 a legal technique should be used to demonstrate that the three elements:
a) information listed in the Annex
b) Danger or real harm
c) Protected interest
Must exist cumulatively. It is not completely clear in the present text.

8. The provision of Art. 29 sect. 1 should be complemented with a text providing for exhaustive listing of all the information, classified as Official Secret in the respective acts. We are firm in our conviction that the Directors of Government Agencies should not be given the authority to compile their own lists of information to be classified, as that will practically mean that they will be given authority to legislate.

9. The maximum term in art. 37 sect.2 should not exceed 50 years.

10. The expression "right to defense" in article 47 section 2 must be clarified.

11. Regarding the harmonization of the APIA with the current draft law we recommend a provision to be included that will make it clear that "classification" after APIA is the activity of classifying the document with the proper classification sign (stamp), respectively the action of defining the level of classification of the information.