The definition of classified information: An international and comparative law analysis

Abstract

This article analyzes the international standards and comparative law in relation to the definition of classified information, with a particular emphasis on ensuring a balance between the protection of national security and the principle of publicity inherent to any democracy and essential for preserving the rule of law. The article highlights the importance of defining classified matters in such a way as to protect only legitimate national security interests and to do it in a restrictive manner, so as to safeguard the principle of publicity, essential in our constitutional system. The article delves, then, into the analysis of the Preliminary Draft of the Classified Information Law of 2022, presented in the XIV Legislature, as a key initiative to replace the obsolete Official Secrets Law of 1968. Although the Preliminary Draft takes a step in the right direction, by trying to define the different classification categories by law, it raises problems of overclassification and lack of clarity in the regulation of some essential aspects. These shortcomings could compromise its objective of aligning Spanish legislation with international standards and the best practices of comparative law, and of guaranteeing an adequate balance between security and transparency, pillars of the Spanish democratic order.