Access to a Government regulation from 1980 regulating the proceedings for keeping state secrets

Access to Information Programme v. Council of Ministers

Relevant legal issues under APIA:
• Art.37, para.1 item 1 - denial grounded on state secret;
• Art.41, para 3 - in camera inspection of the classified document by the court

Background facts:

1. During its legal consultancy of FOI cases coming from around the country AIP became knowing of the existence of a government regulation from 1980 regulating the proceedings for keeping state secrets (the regulation). Once it was used as a legal ground for information denial by some major. The regulation was not found to had been publicized anywhere, but its name was met twice in the text of other legal instruments. In 1994 CM obliged by a decree the Minister of Internal Affairs to prepare and adopt a new regulation on the same matter and to publicize it in State gazette. Evidently this did not happen until 2002 when the Parliament adopted the Protection of Classified Information Act (PCIA) that gave a new regulation on the mater.
2. In 2002 AIP requested a copy of the regulation from the CM. Within the time limit it received a denial referring to state secrets. AIP complained of the denial before the court.

Procedural history:

The Supreme Administrative Court appointed a hearing on 28th of January 2003. At the hearing the Public Prosecutor said that the 1-year period for re-consideration of documents classified before PCIA and their possible declassification under Para.9 of the Miscellaneous provisions of PCIA had not expired at the moment of the information request. The AIP representative objected that at the time of the hearing the period had expired and also MC did not say they were considering the requested document under Para.9. On 11th of April 2003 the court did in camera inspection of the requested secret regulation and found it was stamped as "confidential". On 20th of October 2003 the parties presented their positions. On 25th of November 2003 the court decided that the denial was unlawful and the case had to be turned back to the CM for new decision under APIA. In December 2003 MC appealed the decision.