Spanish government begins reform of Franco-era Official Secrets Law

The Spanish government has begun to reform the country’s Franco-era Official Secrets Law, creating a commission that will be made up of the Defense, Interior and Foreign ministries, and directed by the prime minister and deputy prime minister’s offices. The aim of the administration, a center-left coalition of the Socialist Party and Unidas Podemos, is to do away with general time limits for the automatic publication of documents, replacing them with different periods according to the level of secrecy of the information in question.

The move comes after various attempts to reform the law by the Basque Nationalist Party (PNV) – attempts that both the PSOE and the other traditional political party in Spain’s democratic era, the conservative Popular Party (PP), have managed to block in the lower house of parliament, the Congress of Deputies. The commission put together by the current government has already begun to meet in order to discuss the needs of each department in terms of the classification of documents, and carry out a study of similar legislation in other countries, according to official sources.

The commission has been tasked with coming up with a text that will align Spain with other Western democracies, as well as meeting the criteria set out by international organizations – in particular, the European Union and NATO.

Under the current law, there are just two categories of classification, secret and confidential, with no mention at all of “top secret”

There is no set end date for this work, according to the same government sources, but there is a commitment to have the law in place before the end of the current political term, in November 2023.

In order to do this, the government will have to submit the draft legislation to parliament over the coming year, assuming that the government is not dissolved ahead of time and the approval of the law is delayed, as has happened in the recent past.

The reform of the Official Secrets Law has been pending for some years in Spain. The current legislation dates from 1968, in the midst of the dictatorship of General Francisco Franco, and was retouched in 1978 before the approval of the current Constitution.

The law is technically obsolete: one of the bodies that is tasked in the legislation for the classification of documents, the Council of the Joint Chiefs of Staff, doesn’t even exist, while there are just two categories of classification, secret and confidential, with no mention at all of “top secret.”

The decree that preceded the law was signed in 1969 by Admiral Luis Carrero Blanco, who was assassinated by the now-defunct Basque terrorist group ETA in the early 1970s while serving as prime minister. The document covers issues as anachronistic as changes to combination locks on safes as well as the destruction of secret materials “via fire or chemical procedures.”

But the biggest anachronism of the law lies in the fact that it includes no time frames for secrecy to expire. This means that barring the express declassification of a document by a ministry or other official body, they can remain out of the view of the public forever.

As a result of the law, researchers have to resort to archives held in other countries in order to investigate events that were vital to the history of Spain

This has led to a situation in Spain whereby researchers have to resort to the archives held in other countries in order to investigate events that were vital to the history of Spain, while unable to access the Spanish files about the same facts. Hundreds of Spaniards wrote a letter to the country’s political parties in May 2017 demanding reforms to “an obsolete and francoist law, one that is incompatible with the democratic uses of today’s Spain.”

The government’s new initiative means the definitive rejection of the draft law presented by the PNV. Via a kind of parliamentary filibuster, the proposal has remained stuck in the speakers committee since January 2020, its presentation for amendments having been delayed 24 times. This was also done during the PP government led by former prime minister Mariano Rajoy.

Government sources argued that the PNV’s proposal was unacceptable given that it allowed for the automatic declassification of secret material after 25 years. But critics of both the PP and the PSOE claim that the move is more to do with covering up events during Spain’s Transition, when the country moved from dictatorship to democracy. This would include the coup attempt staged by the Civil Guard in February 1981, and the dirty war against ETA that caused a scandal during the term of PSOE Prime Minister Felipe González.

Meanwhile, government sources argue that the new reform is aimed at seeking the widest consensus possible, and will involve talks with the main opposition PP as well as the PNV. “Under no circumstances is the intention to avoid passing the PNV’s proposal,” the same sources said. “The government simply has the right and the obligation to create its own.”

In September 2018, Defense Minister Margarita Robles gave instructions for military archives to grant access to secret documents prior to 1968, given that they cannot be considered to be legally classified as there was no law before that year. But neither the Interior nor Foreign ministries have accepted this interpretation, which would, in any case, leave documents from 1968 to 1975 out of the reach of historians – that period was one of the toughest under the Franco regime.

English version by Simon Hunter.