Security Information AgencyБезбедносно-информативна агенција

Slovenian echo of BIA's decision

BIA in media / Politika - December 28, 2008

The SOVA secret service has not publish the number of intercepted individuals however, following law changes this might happen  

Ljubljana – the Serbian Security-Information Agency (BIA) contrary to the Military Security Agency (VBA) believes that the number of intercepted individuals at the yearly level is sensitive information, which could endanger security service’s work. VBA has published that it has intercepted 35 individuals. While BIA formally responded to the request of the commissioner for access to public information, Rodoljub Šabić by stating that there is no separate document with such statistics, that they are not obliged to make a new document upon the trustee’s request and according to the law they can only present the existing documents.

Somebody of the Serbian security officers, defending BIA’s stance, in informal contacts with the journalists cited Nataša Pirc-Musar, the Slovenian commissioner for access of public information, who in Slovenia in 2005, rejected a similar request of a Slovenian citizen Matei Kovačič to reveal  statistics on intercepted individuals by SOVA (Slovenian Intelligence and Security Agency). His request was rejected twice by Pric-Musar, the first time on January 20th, 2005, and the second on June 3rd the same year. The explanation was that the discloser of mentioned data ascribed by the former legislature as secret was in contradiction with the law because it would reveal the work “strategy” of secret services, and this could incite “termination of already concluded deals”.

However, today, such a decision of Slovenian authority, would have been different, so the argument citing the Slovenian “precedent” as example of European practice – stands on shaky ground. The information commissioner of the Republic of Slovenia, Nataša Pirc-Musar confirmed for “Politika” that today if somebody else requested the same – she would have brought a different decision. Because the Slovenian security service law has been changed in June 2005, i.e. five months after the first negative answer on Kovačič’s request, and only 27 days after the second rejection of Kovačič’s request. The new Law has been brought into line with the latest European legal standards and contrary to the old recognizes the “test of proportionality”; this means that an authority can make an evaluation of benefit or damage that could arise by the discloser of secret information for which there is a large public interest.

“In the example of Kovačič the requested information were marked by the designation ‘top secret’. In accordance with paragraph 1, article 6 of the Law on access to public information, confidential information is exception to freely accessible public information. When three years ago our decision was given (regarding the Kovačevič case), in our Law there was no regulation on ‘the test of public interest’. This was introduced only on June 30th, 2005, that’s why neither courts, nor commissioners did not have the authority to evaluate consequences in case of agreeing to the reveal of requested information, which was marked as confidential information. The proportionality test was introduced to the Law with the mentioned amendment of the Law on access to public information to enable the information commissioner to remove the level of confidentiality.  

In the period when Kovačič submitted his request to our office, a stricter, more restricted regime was in effect in relation to today’s transparency and accessibility to public information marked as confidential. Today, most probably, the procedure would have been different, although I still cannot state that the final decision would have been different, even though today there are certainly more possibilities to present even confidential information to the public”, explained the information commissioner Pirc-Musar.

She stated that according to her assessment, the practice in the majority of states in the world regarding the discloser of statistics on confidential information is similar to her decision in “Kovačič’s example”.

“In the majority of states the statistics (regarding the secret services) are marked as secret; and especially cautious in revealing such information are small countries, because from the volume of the work one can determine the power of a secret service. Except USA, I do not know for any other country in which the statistics on the work of secret services were public by themselves” cited Nataša Pirc-Musar.

She did not want to estimate whether the Slovenian control of secret services was really at the level of modern European practice.  However, she recalled that, while, in 2005, (when Kovačič was denied information on the work of the local secret service) the Slovenian legislature regarding the accessibility of public information “has not been in discord with the EU practice”, the current “amended” law is – “one of the best in the world”.

Concerning the accessibility of statistics on the work of secret services in Europe, in a conversation with Ljubljana University lecturers relating to security, we found out that there are better examples then the Slovenian.  Yearly reports on the use of secret methods are a practice in the English speaking countries, as well as in some other states. Statistics regarding the use of secret means and methods are publicly reported in Australia, Canada, France, New Zealand, Sweden, Great Britain and USA. One of the most liberal countries regarding the accessibility of public information in the mentioned field is Greece, while some other countries like Germany or Holland are rather reserved regarding satisfying the public interest in gaining even basic information about the work of a secret service.

Holland, has for example in 2003, rejected the possibility of gathering data on interception, this according to the estimation of critics in well-known organizations for privacy rights “was not unusual, because Holland has one of the highest interception rates in European Union”.

As we have found out, in spite of emphasizing the importance of individual’s privacy within the EU, lately even Canada lags behind regarding the exposure of activities of its own secret service and it had not revealed its date on interceptions from 1999, although this is contrary to Canadian regulations. On the other hand, publicity of security services statistics exists in USA but only for a part of secret services’ activities. As a result, the American Ministry of Justice has for 2007, reported that its “court for the control of foreign intelligence services” which by itself functions in complete secrecy approved surveillance of 2,370 cases. This information indicates that the number of intersections is increasing, because in 2000, the same court approved 1012 surveillances while only in 1989 there were only 546 surveillances. At the same time, the validity of this information is annulled by massive interception of citizens without any official supervision – in various forms. That is the reason why prosecutors challenge American laws in numerous proceedings and examples at American courts because the existing administration of President Bush enabled the National Security Agency (NSA) based on “Patriotic Law” to conduct surveillance of millions of people, not only foreigners but also Americans on American territory without any permits.

In Europe, there are frequent confusions on the subject of what can be made known to the public and what not about the activity of a secret service, largely because of the request collision of NATO alliance with former regulations on secrecy valid in EU. When Xavier Solana requested harmonization of EU regulations on secrecy with stricter NATO regulations, the European ombudsman for human rights responded and harshly criticized equalization of military and civilian data in the new regulations.

Svetlana Vasović-Mekina

In Rumania only just managed to publish data

Human rights groups protested at the beginning of December this year against the Decision of Council of Europe Parliamentary Assembly to accept the Convention on accessibility of public information, which is worse than laws of some European states. Although it appears, that EU is moving towards closing channels, through which the public could control the activities of secret services, we can find examples of better practices even in our immediate surroundings, for instance, in Rumania.  Human rights organization APADOR-CH (the Rumanian Helsinki Committee) requested in 2003, from the state prosecutor statistics on the number of intercepted and surveilled individuals in the period 1990 – 2002, as well as how long lasted the longest surveillance of an individual and so on.  When the prosecutor denied the request explaining that all data connected with surveillance is secret, a complaint against prosecutor’s office followed in which the Helsinki Committee explained that the requested data could not endanger the national security.  APADOR-CH asserted that the Prosecutor’s office would be obliged to prove that the publishing of requested data would endanger the national security. APADOR-CH also quoted the Recommendation from 2002, of Committee of Minister of European Council in which the restriction of accessibility to public information in a democratic society is possible but only under the condition of proportionality. The restriction of accessibility is not acceptable if a huge public interest exists for certain information. Based on Court Decision under the threat of a fine it was ordered to the Rumanian Prosecutor’s Office to give the requested data. The data was published but only after much tension, because the procedure lasted much longer then the anticipated period, over 200 days.