On 8 August 2014, a statement of the President was published on the official website of the President of Georgia. According to the statement, the Prosecutor’s Office, violating the Law of Georgia on State Secrets, disclosed secret correspondence between the General Prosecutor’s Office and the Administration of the President of Georgia.

The Prosecutor’s Office of Georgia replied to the President’s statement the same evening. According to the Prosecutor’s Office, it comes to the squandering of budgetary funds, worth GEL 9 million, allocated in 2009-2013 to the Special State Protection Service (SSPS) of Georgia and various documentary materials seized during the investigation (in accordance with the conclusion of the State Audit Office, the abovementioned funds were considered as squander). According to the institution, all of the documentation regarding expenditures was incorrectly classified as secret because these documents did not include a state secret which is proven by the conclusion of the Counter-Intelligence Department.

FactCheck

took interest in this case and decided to study it.

Before speaking about the research we carried out, it is noteworthy that the Administration of the President of Georgia is speaking on the matter of disclosing correspondence between the President himself and the Prosecutor’s Office. This correspondence concerned the investigation of squandering budgetary funds allocated in 2009-2013 for the SSPS and not those SSPS documents that were made unclassified on 8 August as mentioned by the Prosecutor’s Office. Therefore, FactCheck

tried to investigate how justified it was to disclose secret correspondence between the Administration of the President and the Prosecutor’s Office.

The Law of Georgia on State Secrets governs the legal relations with respect to deeming information to be a state secret and classifying and securing such information.

According to the Law, a state secret

is a type of information that contains state secrets in the areas of defence, economy, foreign relations, intelligence, national security and law enforcement whose disclosure or loss can prejudice the sovereignty, constitutional order and political or economic interests of Georgia (Article 1.1).

The information about deeming data to be a state secret is given in Chapter II of the same Law. The correspondence between the Prosecutor’s Office and the President of Georgia about the SSPS contained certain secret information.

According to the Law, the following classified information is deemed to be a state secret:

a) ‘Of exceptional importance’ (equivalent term – TOP SECRET)

b) ‘Top secret’ (equivalent term – SECRET)

c) ‘Secret’ (equivalent term – CONFIDENTIAL)

d) ‘Of limited use’ (equivalent term – RESTRICTED) (Article 13.2)

Our research topic is that of the ‘Secret’ data (because this was the classification of the correspondence between the Administration of the President and the Prosecutor’s Office) whose dissemination or loss of may prejudice the interests of Georgia or a country or organisation being a party to international agreements or covenants (Article 13.5). The classification period for the information is five years.

Moreover, an unlawful decision deeming information to be a state secret may be cancelled by an official/administrative body authorised to classify information. The latter may change the classification level of information on his/her/its own initiative as well as according to a substantiated instruction of the Ministry of Internal Affairs of Georgia (Article 11). For this purpose, the Prosecutor’s Office of Georgia addressed the President of Georgia to declassify the SSPS documentation, for this came within the duties of the President. Proceeding from the fact that the given letter was classified as secret information by the Prosecutor’s Office itself, by disclosing it, the Prosecutor’s Office violated the Law of Georgia on State Secrets.

For additional information, we also reviewed the situation connected to the documents mentioned in the Prosecutor’s Office’s letter. In accordance with the conclusion of the counter-intelligence, the information about the SSPS squandering budgetary funds was incorrectly classified as a state secret which gives us reason to surmise that the information was made secret in an incorrect way.

According to the Law of Georgia on State Secrets:  “If a person discloses information deemed to be a state secret that under this Law should not have been deemed such, the question of his/her liability may only be considered after establishing the legitimacy of classification of such information; if the classification is found to be illegitimate, the person shall not be held responsible (Article 38.3).”

Thus, disclosing information about secret correspondence is a violation but no one will be held responsible from the Prosecutor’s Office because the correspondence was referencing information that was illegitimately classified as ‘secret.’

Nevertheless, the Ministry of Internal Affairs is to monitor the consequences of the disclosure of state secrets in printed and other media in accordance with Article 33. On 8 September, the Ministry of Internal Affairs stated that the aforementioned fact of disclosure did not include the elements of guilt and did not belong to the competency of the Ministry. The Ministry of Internal Affairs concluded that the information, disclosed in the media, did not include a state secret, albeit, as noted above, the correspondence itself was classified as secret.

Conclusion

The President of Georgia is correct when he states that the information sent by the Prosecutor’s Office and the correspondence were classified as ‘secret.’ Disclosing the correspondence between the Prosecutor’s Office and the President, even if it did not include any kind of non-detailed information, is still a violation because the ‘secret’ classification implies that any kind of information connected to it should not be disclosed and only certain persons should have access to it.

In addition, it is important to note that no one will be held responsible from the Prosecutor’s Office as the case referenced information that was incorrectly classified as ‘secret.’ Nevertheless, the Ministry of Internal Affairs violated the duty assigned to it by the Law of Georgia on State Secrets because it did not react adequately to the fact of disclosing the secret data.

We hereby conclude that Giorgi Margvelashvili’s statement:  “The Prosecutor’s Office, violating the Law [of Georgia] on State Secrets, disclosed secret correspondence between the General Prosecutor’s Office and the Administration of the President of Georgia,” is MOSTLY TRUE.