16 August 2022
The decree, approved quietly in March, provides a blueprint for official opacity – vast swathes of documents are now deemed “inaccessible”.
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Italian interior ministry documents concerning security, international relations and the management of borders and immigration – amongst many other things – have been excluded from freedom of information rules under a decree (pdf) issued by interior minister Luciana Lamorgese in March that massively expands the scope for refusing requests for official information.
Article 2 of the decree specifies the categories of documents to which access must be restricted for reasons of national security, defence and international relations. They include intergovernmental cooperation agreements and technical understandings in several fields, including international police collaboration (also at the technical-operative levels) and the management of borders and immigration, a particularly important exclusion given ongoing efforts by the EU and its member states to externalise immigration policies to ‘third countries’.
Documents on MoI cooperation with Frontex for the surveillance of shared Italian/EU external borders are rendered “inaccessible” by the decree. Surveillance at sea is a matter which has been at the centre of substantial controversy given the practice of using surveillance footage to inform the so-called Libyan Coast Guard of the location of boats in distress.
The existence of the decree came to light when the journalist Duccio Facchini was refused access to information on an October 2021 cooperation agreement between the interior ministry central directorate for immigration and border police and the defence industry agency (Agenzia Industrie Difesa, AID) that concerned the provision of equipment to Libya.
Facchini remarked to Statewatch that the new measures are “part of a clear strategy that aims to nullify any glimmer of transparency on politics of externalisation, confinement and turning away of people who are on the move at Italian and European borders. These dynamics have been enacted for some time, well before the mentioned decree.”
“For years, the Italian government, specifically but not only through the interior ministry, has done its utmost to deny the documents that underlie policy-driven practices that attack people’s right to asylum and their freedom of movement, some of which have already been declared unlawful by national courts,” he said, referring to provisions allowing Libyan militias to intercept people at sea and chain refoulements.
Further issues excluded from the right of access under Article 2 concern investigative activities conducted in cooperation with national and foreign bodies, as well as documents concerning the granting, acquisition or reacquisition of citizenship that pose risks for security, national defence or international relations. These cases allowing denial of access also apply to the granting, withdrawal or ending of international protection and residence permits.
Article 2 also excludes access to “presentations, reports and any other document about problems concerning border zones and linguistic minority groups, knowledge of which could prejudice security, national defence or international relations”, raising concern about information on border zones being withheld more generally.
A vast array of categories have been placed under a screen of secrecy by the decree. Facchini argues that, under the decree, “the unlawful praxis of “reservedness” (that is, of a generalised lack of transparency) has become the rule.”
Sensitive information held by the interior ministry was already excluded from access, but the minister apparently felt that such cases should be expanded. Thus, IT and telecommunications systems are mentioned repeatedly as categories to be excluded from access in Article 3 (dealing with documents that are inaccessible for reasons of public order or crime prevention), including planning and programming work, the purchase of such systems and technical reports on the running of tests.
Article 4 (excluded for reasons of “secrecy and confidentiality of the Ministry”) excludes preparatory work for acts and administrative measures; legal opinions on actual or potential conflicts; documents relevant for litigation; agreements between the ministry and other public administrations, unless both parties agree to disclosure; contracting and collective employment agreements; and reports by different bodies on MoI activity (from committees to study groups).
Article 5 concerns preparatory acts to adopt normative and administrative measures for planning and programming, including those to enact political guidelines issued by the government. Article 6 deals with material to be excluded from access for data protection reasons, including applications for international protection, hearings before the territorial commissions that evaluate such requests, related residence permit procedures and any modifications of status, as well as appeals against the territorial commissions’ decisions.
Article 7, meanwhile, concerns the duration of secrecy for specified typologies of documents: 50 years for those falling under article 2(g) (reserved documents and acts on foreign or internal policy); 10 years for those under article 2(h) (see above, reports and documents on problems in border areas and linguistic minorities); and 70 years for those under article 6(i) (reserved documents in penal trials).
The issue is whether these national security, international relations and national defence exceptions are pretexts to conceal activities that should be public knowledge, particularly in the fields of border and migration management, and cooperation with EU institutions and bodies including Frontex, whose role in Italy has grown since hotspots and the EU regional task force were deployed since 2015.
Are the underlying reasons for these changes the embarrassment that Italian authorities have experienced in courtrooms due to government policies being shown to be unlawful, leading Lamorgese to seek to conceal routine MoI activities and methods?
As the journalist Sergio Scandura of Radio Radicale has been arguing for years, the decrease of publicly available information on search-and-rescue events at sea has turned the central Mediterranean into an “information black hole”, largely due to unlawful practices that the authorities wish to conceal. The post-disembarkation criminalisation of boat drivers at sea borders in Italy, Spain, Malta and Greece may also involve questionable practices, an issue that a new network called Captain Support has just begun working on.
A long-term strategy of secrecy
Asked by Statewatch about the decree and its effects, Duccio Facchini recounted previous cases in which Altreconomia has been denied access to information concerning the externalisation of immigration control. We are publishing his comments here, to provide further context:
In June 2020, as Altreconomia, we made an access to documents request to the interior ministry to view the “precise directives” on the basis of which 343 “active readmissions” - that is, refusals of entry - had been enacted towards Slovenia from the start of 2020 to 25 June of that year.
We were refused access on 9 July 2020 in a decision signed by Matteo Piantedosi, minister Lamorgese’s then head of cabinet (a role he also had under Salvini), who is now the prefetto [government representative with responsiblities that include security] of Rome, which argued that the requested document contained “informations concerning past discussions between the national political authority and the Slovenian counterpart, which also concerned the possible evolution of relations with that country and, moreover, information concerning the organisation and functioning of police services whose purpose is to tackle illegal immigration, as well as those concerning armed forces contingents that were available to provincial authorities responsible for public security”.
Hence, the act was “excluded from disclosure”, also to avoid “concrete prejudice” to the “integrity of our country’s international relations with Slovenia”. To date, those papers have not yet emerged, but we know that the praxis was unlawful, as Rome tribunal states in an order issued on 18 January 2021.
On 8 November 2021, the interior ministry and the Italian Coast Guard signed a convention to cede three “SAR naval units, class 300” produced by the Cantiere Navale Vittoria and worth 6.3 million euros to the Libyan coast guard and port security (LCGPS). This agreement, like many of those we have written about in the last few years, falls within the scope of the EU-funded project “Support to Integrated Border and Migration Management in Libya”. As Altreconomia, we asked for clarifications about this convention.
The answer from the Viminale [seat of the interior ministry in Rome] (February 2022): the “aforementioned agreement cannot be disclosed because it would directly affect the international relations that Italy, with the European Union, maintain with Libya”. Hence, making it public would have meant, according to the government, “causing a concrete prejudice to the safeguard of the public interest of security and public order, as well as to the international relations that Italy maintains with third countries”.
Thus, we have come to the “new” decree which, as we explained in our article in late July, has overwhelmed the “Discipline of the categories of documents that are excluded from the right of access to administrative documents”.
On the basis of this act, we were not only refused access to a copy of the collaboration agreement signed on 21 October 2021 between the Central Directorate for Immigration and the Border Police, that operates in the interior ministry, and the Agenzia Industrie Difesa (AID, Defence Industries Agency), in order to provide means and materials to Libya.
In fact, on 22 July 2022, the interior minister evoked the decree (as a sort of shield) to also deny us the attachments of the agreement signed with IOM on 11 April 2022 to carry out the programme of activities envisaged by the Project “CIVIT - Renforcement des capacités opérationnelles des autorités Ivoriennes en charge de la gestion des frontières et des migrations” [Strengthening the operational capabilities of the Ivorian authorities responsible for managing borders and migration], worth 3.3 million euros.
Hence, there was no transparency concerning the project document, the financial plan and the technical protocol that was signed by Italian and Ivorian authorities on 7 October 2021. The reason? “The documents refer to specific programming activities to support the Ivorian authorities that are responsible for managing borders and immigration, and the corresponding financial commitments. Hence, their disclosure could prejudice Italy’s international relations with the Ivory Coast”.
We came across the same thesis, mutatis mutandis, also regarding the convention signed on 9 April 2021 between the interior ministry and IOM to undertake the activities that are IOM’s competence within the framework of the project “Support to integrated border and migration management in Libya - First phase”.
In March 2022, the Italian government refused access to the attachments because they supposedly contained “references to cooperation activities with Libya that are relevant for the wider sphere of Italy’s international relations with that country”. Disclosing them, in this case, would have meant “allowing anyone to know about them, thereby evidently compromising the reservedness that is necessary in the field of police cooperation and tackling irregular migration”.
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