Two ministries in Estonia are examining potential legislative amendments which would change the basis on which classified information in Estonia is categorized.
This will potentially both cut down on bureaucracy while on the other hand extending the classified status of many documents, by many years.
The issue is not a new one, but there may be a convergence of politicos and bureaucrats on the matter, principally at the Ministry of the Interior and the Ministry of Justice.
The legislation amendments – which in any case in the past have been sneaked through while a document subject to a freedom of information request is temporarily held up by officials – would affect such areas as the prison service, law enforcement and national defense.
Minister of Justice Kalle Laanet (Reform) says there should be fewer documents in internal use than has been the case up to now. "If it really is found to be the case that there is information which is a threat to the safety and security of society, then this should be over-stated if anything; for instance, along the lines of the level of classified status perhaps being raised."
'Internal use' status lasts five years, can be extended to 10
Laanet proposes new criteria for documents to be stamped with the lower-tier Asutusesiseseks Kasutamiseks ("for internal use", or AK) designation (pictured below).
Under-preparation legislation, for instance, could be retained under that status, he said, and the information made public once decisions have been made and a legal act adopted.
"Speaking generally, information relating to the public service is made public, but to avoid 'noise' and diverging understandings during discussion phases, when a piece of information in received – which can lead to misunderstanding about its ultimate aims, it would be reasonably for certain topics not to be discussed wholly publicly, but in a rather more closed circle, from the point of view of the institution."
Once a decision is made public, however, there is no reason for the discussion to me marked for internal use only, he added.
Broadly speaking, public sector-documents are made public; in cases where this might present a threat to state security, it is stamped as a confidential state secret. This status can last for up to 75 years, while only those with the appropriate clearance will have access to the document, on a need-to-know basis.
Publicly disclosing a state secret without clearance to do so is a crime under the Penal Code.
The internal use designation (AK) represents a lower level of confidentiality. If the information does not concern personal data, the AK stamp has a five-year life-span, after which officials must reassess the situation – the restriction can be extended to 10 years where needed.
Once this 10 years is up, the document must then be made public.
It is this which Minister Laanet says may not be appropriate in some cases.
He gave an example of the 2010 security systems for a new prison in Estonia, and discussions on what security measures would be in place.
Since more than 10 years have elapsed since then, the information could now be made public, he said, adding: "This is surely not reasonable."
Justice Ministry would extend classified status to 30 years in some cases
In a new draft bill, the Ministry of Justice would have such information – including that on service weapons and ammo as well as security systems, all relating to the penitentiary service – classified for 30 years.
Another ministry, the Ministry of the Interior, has proposed a clause be inserted in the relevant legislation, the State Secrets and Classified Information of Foreign States Act, relating to national security and resources issues, for instance – currently under the AK status, which as noted lasts for five years.
Jaana-Helen Luik, head of the Interior Ministry's legal department, says another piece of legislation, the Public Information Act needs to be revised more thoroughly, though disagrees with Minister Laanet that the solution lies in the creation of more classified information.
"Making information more highly classified makes managing and maintaining it significantly more difficult and expensive," she said.
On the other hand, AK-rated workflows are significantly easier, she went on.
"This would certainly reduce costs, since the processing of information would then not require the fulfillment of the requirements of a processing system designed for special conditions or a security area. The need to security vet individuals would also decrease," Luik said.
Laanet had grappled with the AK issue when he was defense minister (January 2021-June 2022) also.
At that time, he had proposed the head of a state or public agency or institution, or an official appointed by them, could extend the five-year AK term indefinitely, provided the reason for imposing that restriction remained in place.
Now, however, Laanet says that plan also had its flaws, primarily that there would be a tendency in officialdom to extend the term come what may, which in tern would lead to somewhat of a Papierkrieg, a "mass of documents for internal use that require certain rules of use, storage and issuance," he added.
Jaana-Helen Luik seems to affirm this – there are documents held at the ministry with AK classification which are older than 10 years, yet are still jealously-guarded secrets, she said.
This sometimes comes to the fore when journalists attempt to access documents whose AK stamps have expired.
"If, even after ten years, it is assessed that it may be sensitive information, where there may be a threat to security, the creators of the information must also protect it with all possible means," Luik said.
Eesti Ekspress won freedom of information request from 2015
In 2015, weekly investigative paper Eesti Ekspress submitted a freedom of information request on an AK-stamped document which was ten-and-a-half years old.
The Internal Security Service (ISS) tried to extend the restriction by a further five years, but Eesti Ekspress appealed this decision.
In the event, the data protection inspectorate (Andmekaitse inspektsioon) sided with the publication and initiated a supervisory procedure against the ISS, also known by its Estonian acronym, Kapo.
At the height of that dispute, then-deputy secretary general at the interior ministry, Hannes Kont, wrote to the Ministry of Justice secretary general at that time, Norman Aas, calling for a legislative amendment to the Public Information Act to allow extension of more than just a one-off, five-year nature, " in certain justified cases."
Luik noted that other potentially sensitive information can include that on key buildings, IT systems and weaponry.
"The topic is on our table all the time, but we simply haven't received political support for it," Luik added.
In recent past, publication was delayed while law changed
In actual fact, the Interior Ministry has already managed to amend the law concerning sensitive information once in the recent past.
In 2021, the ministry managed to retard the publication of documentation on Police and Border Guard Board databases and their structures, which, going by the book, should have been made public.
While this delay was initially set for a year, the Riigikogu then managed to amend the law so that information specifically concerning police databases can now be held as confidential within the institution for up to 30 years.
Luik said this was only the tip of the iceberg for the whole system, which needs reforming.
Most recently the issue has again concerned prisons, where amendments will follow further discussion, Minister of Justice Laanet says. "The Ministry of Justice has a plan to develop new bases and deadlines that should be in the Public Information Act by March 2024 at the latest."
Editor: Andrew Whyte, Merili Nael
Source: ERR Radio News, interviewer Madis Hindre