Short Deadlines and Unclear Criteria for Data Confidentiality

08 April 2006

Last week, the Government of Croatia presented the Draft-Law on Confidentiality of Information, and the Sabor (Croatian Parliament) voted in the National Programme for Prevention of Corruption 2006-2008. The two documents, although on first sight unrelated, present serious contradictions, both between themselves and with other Government�s policies.

The National Programme for Prevention of Corruption lists as its most important segment the prevention of corruption, i.e. the systemic anti-corruption action on all levels. It proposes implementation of systemic reforms in the healthcare system, especially in terms of health insurance and primary healthcare, as well as procedures for waiting for treatment and examination.

Regarding the judiciary, the sector seen as the most-corrupt by the public, the continuation of reforms is demanded, solution of cases lagging in courts, completion of court procedures in reasonable time frame, and introduction of personal property cards for judges and prosecutors. The Programme also demands stronger overview of spending of Budget money dedicated to local self-government, while political parties will be obligated to full adherence and transparency in financing and prevention of conflict of interests.

The Ministry of Justice and State Prosecution Office is called to increase their involvement in detection and sanctioning of corruption, implementation of prescribed legal sanctions and penalties for corruption, and introduction of protective measure of confiscation of property acquired through corruptive action.

The Programme provides for the establishment of a National Council that would overview its implementation, consisting of Sabor Members, employers associations, trade unions, NGOs, academic community and the media, chaired by a representative of parliamentary opposition.

The Government�s draft-Law on Protection of Confidentiality of Information changes the classification of documents in terms of marking, so that the existing classification by type (state, military, official, business, professional secret, etc.) will be replaced with classification according to level of confidentiality - top secret, secret, highly confidential and confidential.

The secrecy refers to bodies of the state, local self-government units and legal entities with public competences, as well as legal entities and private persons that work with state and administrative bodies and may have access to confidential information. Every person authorized to deal with documents marked confidential will have to pass rigorous security check and will be issued security certificate.

The Law provides detailed list of all persons and entities that will be authorized to use the "top secret" classification, as well as an obligation for periodic review of justification of the designated confidentiality degree. In addition, it prescribes that the inspection of "top secret" data should be implemented at least every five years.

Transparency International Croatia (TIC) greeted the adoption of the Programme and invited all institutions charged with its implementation to start the implementation of listed goals, having in mind the rather short deadlines. For many objectives listed in the Programme, the deadlines have been set to three, i.e. six months.

TIC believes that the regulation of financing of political parties and campaigns is one of the key tasks of this Programme and the basic requirement to fight corruption and future development of democracy in Croatia. All countries with developed democracy have regulated this area in great detail and there is no reason which similar norms should not be applied in Croatia.

However, Transparency comments, transparency of operations remains the basic requirement for successful prevention of corruption in any area, which makes the Draft-Law on Confidentiality of Information very harmful. If a possibility was created for anybody working in a public governance body to declare anything a secret, without a precise list of criteria, it could bring into question the very implementation of the Corruption Prevention Programme � ultimately, even the results it achieves may be declared secret. Such possibility doesn�t exist in any democratic country in Europe. TIC believes that it would be best to further elaborate on the Law on the Right to Access Information and regulate this matter through that Law.

GONG civil association also protested the proposed Law on Protection of Confidentiality of Information, saying that it will render the Law on Freedom to Access Information ineffective and charged that this Law legalizes the closing of the state to its citizens and presents an attack on democracy.

According to GONG, the Draft-Law doesn�t provide a definition of what shall be treated as secret, which data, but the secrecy results from the perceived consequences that publication of certain information may cause. According to the Draft-Law, anything that could endanger the security and vital interests of the Republic of Croatia or, which is unlikely, could damage the efficiency and the implementation of tasks of public governance bodies, shall be considered confidential information. There are, alas, hundreds of public governance bodies, from government ministries to veterinary stations, from courts to port authorities, and the secrecy of data will be decided in accordance with subjective judgment of the heads of such bodies.

Furthermore, the Law shall obligate any person to maintain the confidentiality of information, regardless of how that person acquired certain information. This refers to all citizens, including the members of the press. Therefore, GONG asks: Shall a journalist who decided to publish secret information be liable to criminal charges?

In the democratic countries, emphasizes GONG, there is a balance between the secrecy/security and democratic responsibility, i.e. public scrutiny. Secrecy should be an exception, not the rule. Secrecy is justified only if the decision on the confidential nature of given information has been adopted in a transparent and public manner, and this Law doesn�t provide for that.

�What with the public interest to publish the data that somebody declared confidential in accordance with personal, subjective criteria? What with the right of the citizens to access information? What with the public scrutiny of work and operations of those that were appointed and/or paid by the citizens themselves?" asks GONG.