28 March 2012
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The 27 EU-ambassadors in Brussels have agreed to make internal security rules for information binding law in the member countries. The 15 top members of the European Parliament have decided on similar rules. Information ”disadvantageous” to the EU shall not be disclosed to the public.
The public's right to know has been an ongoing battle in the EU for almost two decades, with conflicting interests between member states, civil society, the EU-bureaucracy and the European Parliament.
At the same time another game has been played behind the scene.
Without much attention the 27 EU-ambassadors in Brussels this spring signed an agreement to make sure that the agreed classification rules will be respected in the member countries. What used to be the internal security rules for the Council as an EU-institution, shall also apply to authorities in the member states.
Such sensitive documents shall be marked Top Secret, Secret, Confidential or Restricted.
The lowest classification ”restricted” shall apply to information of which disclosure could be:
”disadvantageous to the interests of the European Union or of one or more of the Member States.”
At present in the EU-rules for access to documents to the public there is no such classification.
Exceptions for sensitive documents from the general presumption of access (article 9), stops short after Top Secret, Secret, and Confidential.
The decision sealed on 4 May is an ”intern-governmental agreement”, meaning it has to be ratified by all member countries before it enters into force. In some countries that will imply ratification by the national parliament.
The inter-governmental nature also means that the agreement is not ”EU-law” and does not bind other institutions such as the Parliament.
Hence one could anticipate an uproar from the elected EU-politicians since they have had no influence on the agreement.
But so far, no signs of an uproar has been seen, or heard of.
A simple reason could be that the EU-parliamentarians haven't been involved, or even told.
Another reason could be that the Parliament has moved in the same direction, as its leading administrative body, the Bureau recently took a very similar decision.
On 6 June the Bureau decided on new rules governing the treatment of confidential information in the Parliament itself. The Bureau consists of President Jerzy Buzek and the 14 Vice-presidents, representing 6 out of 7 political groups in Parliament.
This decision has been in force since 1 July. It operates with the same four categories of classification of documents as the Council-agreement between the member states.
This decision also cover other aspects, such as rules for secure reading rooms where classified information can be read by persons allowed to do so, and rules for security clearance of members of the Parliament.
For example, no member shall have access to secret or top secret information without a security screening from his or her national security authority.
For access to confidential and restricted information, it shall be enough for MEPs to sign a ”solemn declaration” that they will not disclose the content.
Diana Wallis, Member of the Parliament for the Liberal Democrats (UK) and a member of the Bureau, says the decision comes natural and follows an updated inter-institutional agreement between the Parliament, The Council and the Commission. This update is again a result of the new Lisbon-treaty:
”We are building a whole new system of how to handle council documents based on the new framework agreement. Clearly the Council wants to be sure that we have a secure system and that we have routines that fulfil their demands We will have to have a system to deal with that.”
How does this correspond with the demands for transparency and new access rules?
”These are different issues. The regulation of public access is based on the principe of everything being open. But we have to have a proper security system if we are to receive classified information. This goes mostly for the foreign affairs committee, but it could equally be the trade committee,” Diana Wallis says.
The EU system has once before been the target of a sudden decision on classification of documents taken by diplomats.
Back in 2000 the EU-ambassadors unannounced adopted new rules on classification put forward by Javier Solana, who was then the Secretary-General of the Council and High representative for foreign affairs and security policy.
This decision, by critics coined the ”Solana coup”, introduced specified classifications for information concerning foreign policy, security and defence.
Four out of the 15 member countries then – Denmark, the Netherlands, Finland and Sweden – objected to this automatic exclusion of categories from the general rule of access, which at that time was laid down in a ”Code of conduct”.
The new agreement re-introduces a somewhat similar conflict, between on the one hand the need for common security rules, and on the other hand the very different perceptions and traditions of access to information.
To some member countries it is important to state that their national laws on transparency remain untouched. In Sweden the right to access is written into the constitution.
This can be seen in the agreement (article 3.2):
”Nothing in this Agreement shall cause prejudice to the national laws and regulations of the Parties regarding public access to documents, the protection of personal data or the protection of classified information.”
At the same time the agreement states (article 3.1):
”The Parties shall take all appropriate measures in accordance with their respective national laws and regulations to ensure that the level of protection afforded to classified information subject to this Agreement is equivalent to that afforded by the security rules of the Council of the European Union for protecting EU classified information bearing a corresponding classification marking as set out in the Annex.” (Emphasis added.)
How this can be resolved remains to be seen.
Berndt Fredriksson, an expert on archives and security rules at the Swedish foreign ministry, and one who has followed the negotiations closely, reflects on this conflict:
"These are necessary security rules where member countries have agreed on common goals, but have a freedom of methods when it comes to how the goals can be reached. It is of course in everyones interest that the security is kept. No chain is stronger than its weakest link. Sweden can't deviate from, or rebel against, the other countries.”
Diana Wallis, one of the 15 EU-politicians responsible for the new and tightened classification rules in the Parliament, argues along the same lines.
When asked whether ”disadvantageous to the Union” isn't a fairly vague ground for secrecy, she answers:
”We have to see how things work, clearly this is a balancing act of different interests. Obviously the Parliament wants to be as trusted as other parties.
Has this been debated in any committee or party group?
”It has been debated in the Bureau.”
Were there anyone against the decision?
Not what I recall.
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