In-depth | Democracy

Kosovo’s hidden documents

By - 08.07.2019

Declassified information remains shrouded in secrecy.

In May this year, the Administrative Court of Appeals in Tirana ordered Albania’s State Intelligence Service (SHISH) to declassify files from the country’s turbulent past. 

The documents had belonged to SHISH’s predecessor, Sigurimi, which was active until 1991 and was a feared piece of state apparatus under Enver Hoxha’s strict communist regime.

Almost 30 years have passed, and neither SHISH nor the Albanian Parliament have made the files of the regime that was responsible for mass surveillance, executions, disappearances and the political imprisonment of thousands of people available to the general public. A law approved in 2015 ensures the right to access this information to people who were persecuted by the regime and their relatives, and also to collaborators and those who were supported by Sigurimi if the information relates to them. 

Yet, media organizations and historians in Albania have long been requesting complete declassification of Sigurimi files. 

The challenge of moving toward “open and transparent” democracies are common throughout the wider region — and not least in neighboring Kosovo.

The specific documents that the court ordered to be released in May had been requested by a media organization and belong to the final decade of Hoxha’s regime; but SHISH declined to grant access claiming that the documents should be “secrets in perpetuity.” Now that the court has reached a final decision in this case, Albania is waiting for the decision itself to be published, as it will lay out the way in which these documents should become public. 

SHISH’s website already has a “Declassification” section, which shows decisions relating to requests for declassified documents made by citizens and organizations as well as the names of declassified documents. However, it currently only lists the names of two declassified documents — both from 2017 — and the documents themselves are not online.

Although Albania’s unique past means that transitioning from a closed and secretive regime poses its own nuanced particularities, in broad terms the challenge of moving toward “open and transparent” democracies are common throughout the wider region — and not least in neighboring Kosovo. 

One of the starting points for transparency is how a country deals with its public or unclassified documents. But 11 years after Kosovo’s independence, and nine years after legislation that regulates access to potentially sensitive information was brought into force, no practices have been built by institutions to ensure that the public has easy access to previously classified information, which by definition is public information. 

Despite official laws and procedures indicating that previously classified documents should now be available to the public, an investigation by K2.0 over a period of months indicates that this is far from the reality and that such information remains shrouded in secrecy. It also found that democractic oversight of procedures relating to sensitive information is limited and that relevant processes — including those relating to the drafting of a new law governing this area — are opaque.

How it should work

Article 41 of Kosovo’s Constitution guarantees the right of every person to access public documents; it also allows only three grounds on which information may be withheld from the public: personal data, trade secrets and classified information.

According to the Law on Classification of Information and Clearances, which came into force in July 2010, there are six broad criteria under which an institution may classify information, ranging from “public security” and “defense [and] military plans” to various projects, plans and activities “related to the security interests of the Republic of Kosovo.” 

Classification criteria

Information may legally be kept from the public for a fixed period if it is deemed “necessary’ to classify it for one or more of the following reasons:

1. Public security;

2. Defense, military plans, weapons systems, or operations;

3. Foreign relations and foreign government information, including confidential sources;

4. Intelligence and law enforcement activities, including intelligence methods and sources;

5. Systems, installations, infrastructures, projects, plans or protection services relating to security interests of the Republic of Kosovo;

6. Scientific, technological, economic, financial activities related to security interests of the Republic of Kosovo.

Officials who believe that they have produced sensitive information must notify a senior official within their institution; depending on the level of classification requested, authority to classify the information may be exercised by secretary generals, chief executive officers or executive directors (and their designated subordinates) for lower level classifications, or very top senior officials such as the president, prime minister or the director of the Kosovo Intelligence Agency (KIA) for the most sensitive information.

The named officials can then decide to classify information or documents at one of four levels, each of which carries its own timeframe as to how long the information may be withheld from the public: Restricted (one year), Confidential (five years), Secret (15 years) or Top Secret (25 years). 

If information is no longer deemed to be sensitive, it should be declassified immediately, whereas a review of the ongoing sensitivity of all classified information should take place every five years.

The regulations would suggest that many documents that have previously been classified as Restricted or Confidential should now be in the public domain. 

However, none of Kosovo’s security institutions have “declassified” sections of their websites and procedures around declassification in many institutions are opaque with little clarity of how these documents become accessible to the public.

The only way to seek previously classified information is to file access to information requests to institutions based on both the Constitution and the Law on Access to Public Documents, which obliges every institution to ensure access to public information within a maximum of 15 days.

Testing the system

In order to test how far institutions are following the regulations in place for declassifying documents, K2.0 requested a copy of the most recent document declassified by KIA, the Ministry of Defense, Kosovo Correctional Service, Kosovo Security Council, the Ministry of Justice, Ministry of Finance, Ministry of Foreign Affairs, Kosovo Agency on Forensics and the Ministry of Internal Affairs. 

Only the Ministry of Defense granted access to a declassified document, which was handed over during a face to face meeting with the Ministry’s head of the secretariat. Even then, K2.0 was offered access to just two declassified documents, both related to standard bureaucratic procedures. 

Below (and linked here) is potentially the first declassified document from Kosovo to be published online.

This is a request from the then Ministry of Kosovo Security Force (KSF, now called the Ministry of Defense) to the KIA to increase the vetting level of a KSF attaché to one of Kosovo’s embassies from Confidential level to Top Secret. (Vetting is the procedure though which background and security checks are carried out on officials before they can access Restricted, Confidential, Secret or Top Secret level information; the level of access to classified information for individuals depends on their level of security clearance.)

The name of the attaché and the specific embassy referred to in the declassified Ministry of Defense document was redacted before the document was released on the grounds of protecting the individual’s personal information. The request itself was classified as Restricted on June 23, 2014 and it was declassified a year later on June 23, 2015.

Other institutions made reference to specific documents in response to K2.0’s investigation but did not provide access to them.

The Ministry of Internal Affairs (MIA) claimed that “Declassification in accordance with expiry has taken place in all agencies and departments of MIA that have produced restricted or confidential information.” 

K2.0 made repeated requests to access MIA’s latest declassified document; two months later, MIA handed over a decision that mentioned the declassification of documents but did not hand over any declassified information itself. 

Information cannot be classified to…

  • Conceal violations of law, abuse of authority, inefficiency or administrative error;

  • Prevent embarrassment to a person, public authority or organization;

  • Restrain competition; or

  • Prevent or delay the release of information, which is not clearly related to security issues.

That decision — dated April 1, the day that K2.0 first met with MIA officials in an attempt to access declassified information — stated that MIA was declassifying “information produced by the Kosovo Agency of Forensics” (KAF) at the request of KAF’s chief executive officer and also that it was removing “the part of the list concerning KAF” from MIA’s list of classified information. The decision’s reasoning delegates the competence for handling classified information produced by KAF from the secretary general of MIA to the chief executive officer of KAF.

However, when K2.0 requested access to the declassified information from KAF, its inspector general, Arben Gashi, initially stated that the institution had established a competent commission to make a recommendation on classifying the requested information, and subsequently responded that the information was no longer declassified.

The Ministry of Justice responded that it had no declassified documents, saying that it had “not yet produced security related information and no classification has occurred, and therefore no declassification of information [has happened either].”

However, when K2.0 requested a copy of Turkey’s request to extradite Kahraman Demirez, one of six Turkish nationals who is in prison in Turkey following expulsion by Kosovo in March 2018, the Ministry of Justice did not grant access to the document.

Its response stated: “In compliance with the request of a foreign judicial authority, the ministry safeguards the confidentiality of the request for international legal cooperation and the information within the request, and transfers them to our [Kosovar] judicial institutions.”

This part of the response is an apparent reference to Article 10 of the Law on Classification of Information, which states that “the marking of a document of a foreign government or international organization containing classified information shall retain its original classification markings … .”

In another case, K2.0 knew the name of a specific Financial Intelligence Unit document that was known to be classified and, a month after receiving our request, the Ministry of Finance confirmed that it had been classified for one year. It also confirmed that the document should be available to the public in September 2019 if the Ministry did not exercise its legal right to extend the period of classification. 

Some institutions appear to re-classify their documents again and again, which they are legally allowed to do within six months of a classification coming to an end if making the document public is deemed a threat to Kosovo’s security. 

The Kosovo Correctional Service, an agency under the Ministry of Justice, has only added documents to its list of classified documents and renewed their classification, according to its deputy director, Rasim Selmani, but has never declassified a document. 

“The list [naming the classified documents], as such, is classified,” Selmani added.

The non-responsive institutions

Some institutions did not say whether they have declassified documents or not. 

Kosovo Security Council (KSC) refused to answer any questions or to say if they had declassified any documents.

“We congratulate you for your investigation but according to article 41, point 2, of the Constitution of the Republic of Kosovo, access to classified documents is restricted,” wrote Shpen Trdevaj, KSC’s secretary general, referring to the constitutional article that discusses access to information as well as circumstances in which this can be restricted. K2.0 had in fact requested access to the latest declassified document, referencing this constitutional right.

KIA did not answer K2.0’s request to access its latest declassified document. 

“There should be a person, a contact, who should be in contact with the public.”

Hilmi Jashari, Ombudsperson

A common feature of KSC and KIA is that they have no press officer or official for public documents, neither in their webpages nor in the government’s latest report on access to public documents.

The Law on Access to Public Documents states that “all public institutions shall be obliged to assign units or officers who will be responsible for receiving and conducting an initial review of applications for access to documents” and requests “shall be addressed to the public communication units or officers of the authority concerned.” 

Kosovo’s Ombudsperson, Hilmi Jashari, says that although classified information should be protected, the law does not exclude the two institutions from having press officials. 

“No exceptions should be made when it comes to determining the person, because there should be a person, a contact, who should be in contact with the public,” Jashari said. “And if the document [or information] is accessible or not, I believe that it wouldn’t complicate anything.”

The Ombudsperson added that to date it had received no complaints against security institutions relating to the declassification of information. 

The Ministry of Foreign Affairs also did not reply to K2.0’s request, despite having a press office.

Partial oversight

The only institution that has produced a public document that shows the level of implementation of the Law on Classification is the Assembly, after its Committee for the Oversight of KIA carried out its own oversight research in 2016. 

Nine MPs conducted interviews in KIA, the ministries of Kosovo Security Force (now called Ministry of Defense), Justice, Internal Affairs, and Kosovo’s embassies in Albania and Brussels, as well as the Central Bank and the Basic Court of Prishtina. 

In 2017, after the meetings with officials, the Committee suggested that both the storage of classified information, and its sharing amongst those who require it for effective decision making was problematic as institutions “do not have the necessary spaces [safes] to store information [safely], there are no books (registers) for sharing information, resulting in information remaining unshared and therefore unexploitable.” 

The Committee’s report made no reference to the declassification of documents.

Faton Topalli said that monitoring the law is an “unstoppable process” that could happen “when, for example, the Committee has information that a part of the law is not being implemented or has been violated.”

Yet, despite the shortcomings, there seems to be little political will to assess whether improvements have been made in terms of implementation of the Law. Ganimete Musliu, a Democratic Party of Kosovo (PDK) deputy and the deputy head of the Committee, says she sees no reason to continue monitoring the institutions.

“The process of monitoring the implementation of Law No. 03/L-178 on Classification of Information and Security Clearances was done under the fifth legislature, in April [2017], and it is not under my competence to speak about the findings of the report,” Musliu said. 

“It is not an [established] practice that we double the work of the Committee, [through dealing] with the same issues, for which the process was once finished,” she added. 

Faton Topalli, a Social Democratic Party (PSD) deputy, is the newest member of the committee, and was elected as its chair on March 14, 2019.

Although Topalli, along with other deputies on the Committee, said that he is not aware of the extent to which the Law on Classification is being implemented he added that monitoring the law is an “unstoppable process” that could happen “when, for example, the Committee has information that a part of the law is not being implemented or has been violated.”

K2.0’s request to view the Committee’s original work plan for the year was initially declined, despite the fact that this should be a publicly available document.

 

Shortly after his election as committee chair, Topalli told K2.0 that the Committee needed time in order to determine new duties for the upcoming months and said that it would review its work plan in June 2019. 

A review of the Committee’s work plan for the first six months of 2019 was on the agenda of the Committee’s latest meeting, held on Wednesday, June 26. However it is understood that its upcoming work plan remains unchanged and that further scrutiny of classified and declassified documents was not added to its upcoming schedule.

Information relating to the Committee is, however, generally hard to come by. 

The Committee’s section on the Assembly’s website does not include any published documents, while K2.0’s request to view the Committee’s original work plan for the year was initially declined, despite the fact that this should be a publicly available document. The Assembly subsequently sent the document only after K2.0 filed a complaint at the Ombudsperson.

The lack of transparency over the Committee’s work is despite the fact that members of the Committee themselves do not have access to classified information, therefore it is not technically possible for them to produce information or documents that can legally be withheld from the public.

Committee MPs overseeing in the dark?

Deep doubts about the capacity of the Assembly Committee to effectively carry out its scrutinizing role arose in April last year when neither the former director, Driton Gashi, or the deputy director, Latif Merovci, showed up in front of the Committee to report on the arrest and expulsion of the six Turkish nationals the previous month. 

Ganimete Musliu, who chaired the meeting when Merovci was summoned, spoke loudly for the first time about a lack of capacity to oversee KIA, telling a press conference that “it is impossible for us as a committee to have democratic control of KIA.”

But, 10 months later, Musliu told K2.0 that “for the time being,” the committee has satisfactory oversight, but did not say what had changed in her opinion. 

Opposition deputies on the Committee disagree. 

Some opposition MPs see their lack of access to classified information as an obstacle to democratic control.

Anton Quni, a Committee member from the Democractic League of Kosovo (LDK), says that committee MPs should be granted access to classified information. 

“[For now] we as MPs sign a document of confidentiality, a declaration under oath… Not even [signing] this document binds the director of KIA to declassify information to us [committee MPs],” he said.

According to Quni, Kosovo should regulate the issue through the new Draft Law on Protection of Classified Information and harmonize it with existing legislation.

“The director [of KIA] does not convey any information... We should insist at any cost on having a law that grants us access [to classified information].”

Shemsi Syla, Committee member

Shemsi Syla, a committee member from Vetëvendosje, agrees that legislative change should lead to MPs having access to classified information.

“We only appear in the Committee,” Syla said. “The director [of KIA] does not convey any information… We should insist at any cost on having a law that grants us access [to classified information].” 

Topalli disagrees though, and thinks that having access to classified information would not be useful for him in his role as a committee member.

“An MP’s work is public and such it should be,” he said. “A security clearance certificate, even [one that would] give me access to secret documents, would not help me to discuss [them] in the Assembly,” he said.

New law, new agency

The new Draft Law on Protection of Classified Information — which was scheduled to be adopted by the government in June but did not make it onto the agenda — does not extend access to Committee members to classified information.

Indeed, there are elements of the new Draft Law that seem to further enhance the secrecy of information.

It extends the categories of information that can be classified, particularly in terms of incorporating electronic communications, cryptology and electronic interceptions, and adds to the list of those authorized to classify information.

It also extends the classification period of Top Secret documents from 25 to 50 years. 

The new Draft Law also addresses the issue of vetting, which has technically been a competence of KIA since the current Law on Classification was passed in 2010. 

However, the Vetting Department in KIA only started its work five years ago, with KFOR spokesperson Vincenzo Grasso telling K2.0 that “KFOR did vetting for some time, between 2008 and 2014,” while its Liaison and Advisory Team helped to build KIA’s capacities to do background checks, security clearance procedures and classification of documents. 

According to the online version of the Draft Law, a newly created agency, the Agency for the Protection of Classified Information (ACPI), will be responsible for vetting as well as controlling and implementing classified information security standards. This follows a recommendation in the Committee for the Oversight of KIA’s 2017 report.

The prime minister’s security adviser did not reveal the date or location of upcoming public consultations and did not reply to questions asking for information about public consultations that had taken place.

However, just as with implementation of the current law relating to classified documents and security clearances, the process of drafting the new law has been opaque. 

K2.0 asked the Prime Minister’s Office questions about who was directly involved in the legislating process for the law as well as details about public consultations and contributions but only received partial answers. 

Although the names of the broader commission responsible for drafting the new law are online, during an interview in the Office of the Prime Minister in March, Hysen Gashi, the prime minister’s security adviser, declined to provide the names of those in the smaller working group directly responsible for drafting the law, only saying that it consisted of officials from the Prime Minister’s Office, the President’s Office and KIA. 

Also, he did not reveal the date or location of upcoming public consultations, and subsequently did not reply to emailed questions asking for information about public consultations that had taken place; in its initial response, the Prime Minister’s Office had merely provided the time period in which consultations had taken place, saying that there had been “no limitations” to involvement when asked how many people had taken part.

Mirjeta Ademi, researcher at Kosovo Civil Society Foundation (KCSF), says that the foundation has recommended to the government that they publish dates and places of consultations.

“One of the recommendations of KCSF in the [2018] report named Under Construction is that dates and all other materials are given to other parties [who are interested in the process],” she said.

The government’s own Minimum Standards for Public Consultation Process also require transparency and “ensuring equal opportunities for non-discriminatory participation of interested parties and the public in the process of public consultation.”

These Minimum Standards also require a summary that “reflect[s] the discussions and the main conclusions from the public meeting” to be circulated to participants within seven days of a public consultation. 

“Public consultation is having access to a document to see what was said when legislation is being produced.”

Robert Muharremi, public policy lecturer

However it appears that no such minutes have been kept when it comes to this Draft Law. 

Borovci noted that accessing a public document is “absolutely” a constitutional right. But later, in a response to a request for minutes of any public consultations, he said that “a citizen of the Republic of Kosovo is asking for a document that does not exist,” adding that the Legal Office would publish a summary of comments at the end of the consultation process in an explanatory memorandum. At the time of publishing, this document was not published online.

Robert Muharremi, lecturer of public policy and governance at R.I.T Kosovo, says there should be records of who said what during the meetings of the officials who drafted the law.

“A public consultation is not only having access physically [to the place in which a draft law is being discussed],” he said. “Public consultation is having access to a document to see what was said when legislation is being produced,” he said.

The overall effect is that citizens are left largely in the dark when it comes to the way in which security services and processes operate and are regulated at a time when the unavailability of declassified documents suggests there is much to monitor.K

Feature image: Majlinda Hoxha / K2.0.

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