1. Introduction and basic definitions
Exceptional access to classified information pursuant to Section 60 of the Act No 412/2005 Coll., on the protection of classified information and on security capacity, as amended (‘the Act’), is a tool enabling, in well-defined and exceptional situations, the disclosure of classified information also to natural persons or entrepreneurs who do not hold the appropriate authorisation depending on the classification level of classified information (notifications, certificates). This procedure is intended only for cases where it is necessary to deal quickly and effectively with emergency situations in the interest of the Czech Republic.
Applications Section 60 of the Act in no way replaces the set system and does not deviate from the set principles and general rules for the protection of classified information. Thus, the Institute of Extraordinary Access to Classified Information under Section 60 of the Act does not serve to replace the general obligations of an entity allowing extraordinary access to classified information under Section 60 of the Act to create conditions for handling classified information, to maintain and establish a list of places and functions where access to AI is necessary, including those where access to AI of a foreign power is strictly necessary. Similarly, it is the duty to ensure the protection of classified information through specific types of ensuring the protection of classified information, depending on how classified information is handled.
2. Conditions for the application of emergency access
2.1 Existence of exceptional circumstances
Exceptional access may only be granted in emergency situations foreseen by law:
1. Period of growing international tensions (graduating international crises, including hybrid activities, intense campaigns by state actors, etc.),
2. Participation of the Czech Republic in armed conflict abroad (but not peacekeeping or observation missions)
3. Rescue or humanitarian operations abroad (in particular under the responsibility of the Ministry of the Interior and the Ministry of Foreign Affairs);
4. Declared state of war, state of danger, state of emergency and state of danger,
5. State of cyber danger.
Provisions Section 60 of the Act set out exhaustively the emergency situations in which classified information may be provided to a person who does not have access to classified information under the law, subject to the conditions laid down. This closed list cannot be extended by interpretation. The case of a period of rising international tensions, which we can possibly identify even now, must also be accompanied by certain limits. Specifically, a natural person or an entrepreneur may be provided with classified information under Section 60 of the Act if he/she performs tasks in a period of increasing international tension (e.g. CMX exercises), but it is primarily necessary to set up a management system so that natural persons or entrepreneurs who meet the conditions for accessing classified information under the Act are used to perform such a task. Paragraph 60 can therefore be applied only as an ultima ratio.
Access to classified information may be Section 60 of the Act grant only under cumulatively fulfilled conditions:
1. we are in a period of increasing international tensions or in another emergency situation listed in section 60 of the Act,
2. natural persons or entrepreneurs who have access to classified information on the basis of notices or certificates shall not be primarily involved in the performance of the tasks;
3. access is granted to a natural person or entrepreneur performing tasks related to these extraordinary situations.
2.2 Special status of the entity
Exceptional access may only be granted to a natural person or an entrepreneur who, in a given situation, carries out specific activities necessary to safeguard the key interests of the State.
Typically, these are natural persons or entrepreneurs whose involvement is irreplaceable at a given place and time and without their participation the performance of specific tasks would be jeopardised or rendered impossible.
Individuals need to be assessed for credibility and confidentiality – basic security screening is carried out, e.g. through references or personal knowledge.
3. Procedure for granting emergency access
The provider of classified information will, as a rule, be an authority of the State in the context of an emergency situation foreseen by Section 60 of the Act. As in other situations in normal operation, the tasks of a State authority are carried out by individual natural persons who do so on the basis that they are its employees or on the basis of predetermined roles, but the provider is always a given State authority (region, ministry, etc. see Section 2(d) of the Act).
Access to classified information shall be granted to a natural person to whom the classified document concerned has been assigned in the course of his or her professional activities. While such a person may also carry out screening, this is not a necessity, it may also be carried out by another person from the competent authority of the State. It is not so important who from the national authority will carry out the screening, but how it will be carried out – so that the available resources are used at a given time and place by the means available to the national authority.
However, the final decision to grant access to classified information pursuant to Section 60 of the Act cannot depend on the subjective opinion of one natural person. A natural person who effectively grants access to classified information shall do so in accordance with a decision of an authority of the State as such. The parallel is also given by the current functioning of the State authority in areas other than the protection of classified information, which is also not based on the arbitrary and subjective discretion of each member of staff, regardless of their function or assignment.
Thus, it is not possible to determine strictly which person will be responsible for an individual act if it is necessary to ensure access to classified information under Section 60 of the Act, as the entity as a whole will always be responsible – thus it is not possible to identify a specific person who will be responsible for an individual act (each entity may have a different structure and management). The performance of tasks can be set up in a similar way as in the case of access to classified information in a standard situation, while the application of Section 60 of the Act only does not have to fulfil the condition of possession of a notice or certificate.
TEST OF PROPORCIONALITY
The decision to grant access to classified information pursuant to Section 60 of the Act must be preceded by a proportionality test!!!
If the risk and possible consequences (in the event that a natural person or an entrepreneur who does not hold a certificate would not be used for the performance of the task) clearly exceed (in addition to the risks and possible consequences that would arise if access were granted only to a natural person or an entrepreneur who has access to classified information on the basis of a certificate), then special access may be granted under Section 60 of the Act.
Of particular importance is the time aspect, which will be a decisive factor, as the operative will be crucial for such decisions in crisis situations.
3.1 Assessment of credibility
For natural persons, the provider of classified information must operationally verify credibility (e.g. references from the employer, personal knowledge, assurance from a trusted authority).
Where there is any doubt as to the credibility of a person, access to classified information shall not be granted.
For entrepreneurs, caution is recommended and, in case of doubt about the ability to ensure the protection of information, access should not be allowed.
As regards the scope of the screening carried out, the aim is certainly not to carry out a similar safety procedure. The aim is to verify, from available sources (including public ones) without significant time constraints, whether the entity is an entity for which there is no evident risk factor that could have an impact on the ability to conceal information. As mentioned above, screening does not have to be carried out by a person with access to classified information, but can be any designated natural person within a State authority.
The credibility of a person means, in particular, the absence of facts indicating that a person may benefit from extraordinary access to classified information for purposes other than those foreseen by law.
It is essential that the person who carries out the ‘security screening’ is not obliged to go through all public and non-public sources, to request an extract from the criminal record and to seek the assistance of other administrative authorities or other authorities in order to verify the absence of such facts. It is sufficient for access to be granted if, even after a thorough examination, it is not aware of them by the entity to which access is granted. Such verification may consist of personal knowledge of the examiner, i.e. personal knowledge of the employees working with the examined person, basic search of public resources (internet, insolvency register, business register, etc.), as well as a reference from the employer or a guarantee from a trustworthy authority. Where a State authority concludes, on the basis of the data obtained, that there is doubt as to the credibility and ability to conceal information, access to the classified information shall not be granted.
The person performing the ‘screening’ thus works, in particular, with personal knowledge, basic verification of publicly available sources, references from the employer, a guarantee from a trustworthy authority, etc., when assessing credibility.
In particular, a guarantee from a trusted authority is a confirmation from a person who has a certain qualified relationship with the person to be granted extraordinary access and who can assess their credibility. This includes, in particular, its employer, superior or official. The guarantee can be a confirmation that the person absent facts that would otherwise indicate its unreliability. At the same time, it must be an authority about which there is no doubt about credibility itself. The authority will therefore ensure that the person who is granted extraordinary access is eligible for such access, or that he or she does not have information about any fact that affects his or her credibility.
The Act treats as entrepreneurs a natural person doing business and a legal person whose main activity is doing business, see Section 15 of the Act for details. Where access to classified information pursuant to Section 60 of the Act is granted to an entrepreneur (i.e. within the meaning of Section 15 of the Act), access must also be granted, under the conditions laid down in that provision, to natural persons who will become acquainted with classified information within that entrepreneur. These will typically be employees performing tasks for entrepreneurs who are to be granted access under Section 60 of the Act. These natural persons must therefore be screened and instructed in accordance with Section 60 of the Act, as the entrepreneur will have access to classified information in real terms through his employees.
Although the law does not explicitly require this, the NSA only recommends screening also to examine entrepreneurs as such and thus exclude the existence of obvious doubts about ensuring the protection of classified information. Such screening is recommended to be carried out in a similar way as for natural persons, i.e. from available sources and available means at a given place and time. For entrepreneurs, it is recommended to carry out screening of some natural persons, especially those involved in the management of such entrepreneurs and acting on their behalf. At the same time, it will be necessary to examine a specific natural person who will acquaint himself/herself with classified information, if he/she will also be granted access under Section 60 of the Act, or he/she will no longer be the holder of a notification or certificate of a natural person.
3.2 Information and documentation
1. Before disclosing classified information, a natural person shall be instructed in accordance with the model of recommended instruction - here or according to the model of instruction referred to in Annex 3 to Decree No. 300/2024 Coll., on personnel security and safety competence.
2. The instruction shall be made in writing, in justified cases (e.g. the risk of delay) it may be replaced by oral acquaintance.
3. A dated written record containing essential circumstances, the identification of persons and classified information, or the fact that oral instruction has been given, shall be required of extraordinary access. The model of the written record is not laid down by law. For your possible use is a sample of the recommended written record - here.
4. As soon as circumstances permit, this record, together with the written instruction (unless only oral instruction has been given), must be sent to the NSA.
As a general rule, every time an individual has access to classified information, it is necessary to re-instruct the individual, draw up an access record and send it to the NSA. Each access to an individual ‘new’ classified information constitutes a new access within the meaning of Section 60 of the Act and must therefore be treated in accordance with the Act – that is to say, it must be instructed and recorded in writing and sent to the NSA. If it is a case of providing multiple classified information in the same case to the same individual or entrepreneur, then the alert can be combined for all such classified information (e.g. at the end of the CMX exercise), provided that access is not granted with a significant delay, as the alert should be sent to the NSA without delay.
3.3 Specifics for Entrepreneurs
For entrepreneurs, the responsible person is obliged to make a written record and deliver it to the NSA without delay.
4. Limitations and principles
1. Emergency access is not legally enforceable – it cannot be invoked and any refusal does not need to be justified.
2. The need to know principle also applies in these cases – access is granted only to the extent necessary and only to those who actually need it to perform a specific task.
3. Access pursuant to Section 60 to classified information classified at the level of Top Secret shall not be granted to an entrepreneur.
4. Access pursuant to Section 60 to classified information classified at the level Top Secret may be granted to a natural person only if he or she holds a valid certificate for access to classified information classified at the level Secret and is informed.
5. Access under Section 60 may not be granted to an entrepreneur to classified information subject to a special handling regime (e.g. KRYPTO, ATOMAL).
6. Under the approach under Section 60 of the Act, sensitive activities cannot be carried out.
7. The responsibility for the correctness and legality of the procedure lies with the person who allows access (typically a state authority).
5. Practical step-by-step procedure
| Step |
Description |
| 1 |
Identification of the emergency situation (state of crisis, armed conflict, humanitarian action, etc.) |
| 2 |
Assessment of the necessity of emergency access for a specific natural person/entrepreneur |
| 3 |
Verification of the trustworthiness of a natural person (screening, references, personal knowledge) |
| 4 |
Instruction of the natural person on obligations and consequences (in writing, exceptionally orally) |
| 5 |
Drawing up a written record of emergency access (identification of persons, essential circumstances) |
| 6 |
Immediate transmission of the record and instructions to the NSA (unless it is an intelligence service) |
| 7 |
For entrepreneurs: obligatory written record and its sending to the NSA |
6. Important comments and recommendations
Every case of extraordinary access shall be carefully documented and substantiated, including all steps leading to a decision to disclose classified information.
Access to classified information pursuant to Section 60 of the Act is exceptional and may not be misused for normal operational purposes.
Responsibility for the correctness of the procedure shall always lie with the authority granting access.
In case of doubt, we recommend consulting the NBÚ or the legal department of the competent authority.
Model of recommended written test for emergency access (natural person) - here
Model of recommended instruction for emergency access (natural person) - here
