Issues relating to the area of administrative security governed by Decree No 275/2022 on administrative security and registers of classified information, as amended (‘the Decree’)

  1. Is it necessary to introduce new administrative aids in connection with the entry into force of the new decree, or can the administrative aids introduced until the end of 2022 continue to be used? If older administrative aids can be used, does any change have to be made to their boxes?
  2. What is the procedure for keeping records of certain classified documents in other administrative aids pursuant to the second sentence of Section 3(2) of Decree No 529/2005 prior to the entry into force of the new Decree?
  3. Does the Security Director need a written authorisation from the responsible person to authenticate administrative aids pursuant to Section 4(1) of the Decree? Can the person in charge of the minutes authenticate the minutes?
  4. How to proceed if, due to the lack of space (rows in the table) or the extensiveness of the shredding committee, the tables on the inside boards of the negotiating protocol referred to in the Annex cannot be used
    No 1 to the Decree indicate other persons in charge of the negotiation protocol or the composition of the shredding commission?
  5. Can a negotiation protocol be a clandestine administrative tool?
  6. What is the procedure for the management of a collection sheet which has not yet been closed and which was established before the entry into force of the new decree? A change in the legal regulation will be reflected in the composition of the reference number assigned from such a collection sheet to a classified document registered after 1. 1. 2023?
  7. Is a checklist also drawn up for a classified Confidential, Secret or Top Secret document delivered by mistake?
  8. According to the new decree, the file and classified documents are registered in the collection sheet. In this case too, can checklists for individual classified documents recorded in the collection sheet be replaced by a file checklist?
  9. Is it necessary to create a new checklist for a classified document if the classified document is re-registered under a new reference number within a single point of registration?
  10. What happens if, after opening the outer envelope of a consignment delivered by the postal licence holder, the addressee discovers that another addressee is indicated on the inner envelope of the consignment?
  11. What is considered the creation of a document? Is it a copy or approval by an employee with signature authority?

1. QUESTION: Is it necessary to introduce new administrative aids in connection with the entry into force of the new decree, or can the administrative aids introduced until the end of 2022 continue to be used? If older administrative aids can be used, does any change have to be made to their boxes?

ANSWER:

The Decree provides, as part of the transitional provisions (Section 37(1)), that administrative aids drawn up in accordance with Annexes 1 to 7 to Decree No 529/2005 on administrative security and on registers of classified information, in the version in force before the date on which the Decree enters into force, may be used, provided that all the items laid down in the new Decree are added and maintained in the manner laid down in the new Decree.

The models of administrative aids set out in the annexes to the new decree contain, with the exception of the auxiliary negotiating protocol, where the headings of columns 1 and 16 have been amended, only minor changes compared to the previous legislation, which in other cases do not require additional adjustments to be made to the headings of individual items of administrative aids already in use. The amendment must therefore be made at least in the headings of columns 1 and 16 of the APC.

From the date of entry into force of the new decree (1. 1. 2023) administrative aids, including those introduced into use before that date, must be managed in accordance with the instructions set out in the annexes to the new decree.

The aim of the above-mentioned transitional provision is, on the one hand, to minimise the administrative burden on the entities concerned in connection with the amendment of the legislation and, on the other hand, to minimise the economic impact on the entities concerned by allowing them to continue to use administrative aids introduced into use before the entry into force of the new Decree, but also to exhaust any ‘stock’ of administrative aids acquired during the period of application of Decree No 529/2005.

2. QUESTION: What is the procedure for keeping records of certain classified documents in administrative aids pursuant to the second sentence of Section 3(2) of Decree No 529/2005 prior to the entry into force of the new Decree?

ANSWER:

The Decree states, under the transitional provisions (Section 37(2)), that a classified document which, until the entry into force of the new Decree, has been registered under another registration mark allocated from an administrative aid pursuant to the second sentence of Section 3(2) of Decree No 529/2005 does not have to be re-registered.

This means that a classified document may continue to be registered in this administrative tool until it is declassified or declassified. In the case of handing over, lending or moving a classified document, it will be recorded in administrative aids under another registration mark pursuant to Section 4(3) of Decree No 529/2005, under which it was registered. In accordance with the second sentence of Section 3(2) of Decree No 529/2005, all standard records, including any corrections, will be kept in the additional administrative aid in question until all classified documents registered in it are discarded.

From the date of entry into force of the new Decree, it is no longer possible to assign new registration marks from another administrative aid pursuant to the second sentence of Section 3(2) of Decree No 529/2005, so it is not possible to re-register any other classified document in it.

At the same time, please note that if a classified document in non-documentary form of the Confidential, Secret or Top Secret classification level to be sent is registered in another administrative aid pursuant to the second sentence of Section 3(2) of Decree No 529/2005, it must be re-registered in the negotiation protocol, unless it is a classified document of a foreign power. This is due to the fact that a non-documentary classified document must be accompanied by a movement document when it is transported (it will thus become an annex to the movement document – a paper-based classified document). However, this accompanying document could not be registered in another administrative aid under the second sentence of Section 3(2) of Decree No 529/2005 or under previous legislation (Section 12(1) of Decree No 529/2005).

3. QUESTION: Does the Security Director need a written authorisation from the responsible person to authenticate administrative aids pursuant to Section 4(1) of the Decree? Can the person in charge of the minutes authenticate the minutes?

ANSWER:

The responsible person or a person authorised by him or her, or the security director or a person authorised by him or her, may sign the authentication of the administrative aid (tags at the end of the stitching and a clause on the number of sheets with the date of issue of the administrative aid for use) in accordance with Section 4(1) of the Decree. It is apparent from the wording of that provision of the Decree that the Security Director does not have to be authorised to authenticate the administrative aid.

The third sentence of Paragraph 4(1) of the Decree provides that the person in charge of the minutes cannot be authorised to sign the authentication of the minutes, with the sole exception that the minutes are kept by a person in charge who also performs the function of security director. As a rule, such a situation may occur for small entities where there is no other person available who could be in charge of either maintaining the negotiation protocol or signing it as part of its authentication (e.g. a natural person doing business).

In other cases where the minutes are kept by the responsible person or the Security Director, the authentication of the minutes may be signed either by the other person or it will be necessary for the responsible person or the Security Director, as the case may be, to authorise another person to sign the authentication of the minutes.

Authorisation for authentication must be in writing and must be retained until the relevant administrative aid is discarded (Section 4(1), last sentence, of the Decree).

The reason why the person in charge of the minutes is required not to be able to sign his/her own authentication is the increased requirements to ensure the protection of the minutes, as an administrative tool to record classified documents, against possible alteration of the records and other undesirable interferences. In the case of the above-mentioned exception under the third sentence of Paragraph 4(1), after the semicolon, this is the case where another person is not available to ensure that the conditions laid down are met.

4. QUESTION: What is the procedure if, due to the lack of space (rows in the table) or the size of the shredding committee, it is not possible to indicate in the tables on the inside boards of the negotiating protocol referred to in Annex 1 to the Decree other persons charged with the management of the negotiating protocol or the composition of the shredding committee?

ANSWER:

In the event of a lack of space or lines in the tables appearing on the inside of the sheets of the minutes referred to in Annex 1 to the Decree, in which the names and surnames of the persons responsible for keeping the minutes, the period in which they keep the minutes and the specimen signatures, respectively the names and surnames of the members of the shredding commissions for each year or, where applicable, the range of years, and their signatures, may be entered:

  1. the tables with all the required items on the other blank pages of the negotiating protocol, if the negotiating protocol contains such parties (front end, inner side of the back panels;
  2. in the case of members of the shredding committee, include references to documents or internal rules on the inside of the negotiating protocol, which shall contain all the information that should be included in the table referred to in Annex 1 to the Decree. Choosing this procedure, it will be necessary to ensure the preservation of a document referenced in the minutes replacing the completion of the required data in the table on the inside of the minutes, at least until the minutes are deleted.

5. QUESTION: Can a negotiation protocol be a clandestine administrative tool?

ANSWER:

Negotiating protocols are generally non-classified administrative aids and therefore classified information should not be entered in them (except for intelligence-led negotiating protocols).

In the event that it is necessary to enter classified information in the negotiation protocol (e.g. the originator of the AI will be the intelligence service), it is possible, in addition to the non-classified negotiation protocol, to keep a specific negotiation protocol for this information only under the regime corresponding to the highest classification level of this information.

If classified information is entered ‘by mistake’ in an unclassified minutes, the minutes shall be classified according to the level of classification of the information entered. A record containing classified information must be marked with the appropriate classification level (in a manner similar to that referred to in the fourth and fifth sentences of Section 8(2) of Decree No 275/2022) and the negotiating protocol must also be treated as a classified document of the same classification level. Records of other classified documents kept in paper form in the minutes shall be kept:

  1. kept in a new non-classified negotiating protocol – the reference number will follow the last reference number allocated from the previous negotiating protocol, a range of serial numbers will be entered in the pre-printed box above columns 1 to 2 of the negotiating protocol, starting with the sequence number following the last reference number from the previous negotiating protocol and ending with the sequence number from the last line on the page of the newly established non-classified negotiating protocol (e.g. 28-30), previous unused lines are crossed out (in this context, however, please note that if this situation is repeated, the record of classified documents may be kept in many negotiation protocols), or
  2. continue with the original (already classified) negotiating protocol, with further classified information entered in it to be classified in the line where the record is entered.

The recording of classified documents in the electronic filing system will continue continuously and the procedure referred to in point (a) above may also be used in the electronic minutes of the meeting using another application, if technically possible.

6. QUESTION: What is the procedure for keeping a collection sheet that was established before the entry into force of the new decree? A change in the legal regulation will be reflected in the composition of the reference number assigned from such a collection sheet to a classified document registered after 1. 1. 2023?

ANSWER:

Neither the new Decree nor Decree No 529/2005 lays down an obligation to close the collection sheet at the end of the calendar year, although this appears to be an appropriate procedure given the difference in the calendar year, which is part of the reference number to which the collection sheet is led, with the calendar year indicated within the date of origin of classified documents created or delivered only in the following calendar year.

The collection sheet, established before the entry into force of the new Decree, can be continued in the same way as before, but it is necessary to follow the instructions set out in Annex 7 to the new Decree when filling in individual data. Any other established sheet of the same collection sheet must comply with all the requirements of the new Decree, including the name of the entity with which it is kept and the signature pursuant to Section 4(2) of the Decree.

On the basis of the composition of the reference number, on which the collection sheet was based before the entry into force of the new decree, even after 1. 1. 2023 does not change anything. If newly created or delivered classified documents are registered in such a collection sheet, they will normally be distinguished in the reference number by sequential numbers from that collection sheet, and if the reference number on which the collection sheet was based did not contain the designation of the entity to which it was assigned, it will not contain it even for classified documents newly registered in that collection sheet.

Another possible procedure is the closing of the collection sheet established before the entry into force of the new decree, the registration of another newly created or delivered classified document relating to the same matter in the negotiating protocol (new initiation classified document) and the establishment of a new collection sheet for the newly allocated negotiating number. The reference number assigned after the entry into force of the new decree will already contain all the newly established elements, i.e. also the designation of the state authority or its organisational unit, legal entity or natural person doing business to which the reference number has been assigned. In this case, it will be necessary to link the records of both the original and the new reference number in the negotiating protocol by cross-references (information on the link between the reference numbers). This information should also be included on the two collection sheets in question.

7. QUESTION: Is a checklist also drawn up for a classified Confidential, Secret or Top Secret document delivered by mistake?

ANSWER:

Under Paragraph 5(1) of the Decree, a checklist must be drawn up for a classified document classified as Confidential, Secret or Top Secret, or for a classified document of a foreign power classified as Confidential, Secret or Top Secret, or for a file containing classified documents classified as Confidential, Secret or Top Secret.

The checklist must therefore also be drawn up for a classified document classified as Confidential, Secret or Top Secret which has been delivered by mistake.

8. QUESTION: According to the new decree, the file and classified documents are registered in the collection sheet. In this case too, can checklists for individual classified documents recorded in the collection sheet be replaced by a file checklist?

ANSWER:

Pursuant to Section 3(1)(g) of the Decree, the collection sheet is an administrative tool intended for the extension of the record of records in the negotiating protocol in the event of the registration of a larger number of classified documents relating to the same subject matter. The collection sheet shall be established after the registration of the initiating classified document in the minutes of the negotiations. At the same time, this initiating classified document shall be registered in the collection sheet under sequential number one. Other classified documents relating to the same subject matter shall subsequently be entered in the collection sheet in the order in which they arose or were delivered.

Under Paragraph 5(1) of the Decree, a checklist must be drawn up for a classified document classified as Confidential, Secret or Top Secret, or for a classified document of a foreign power classified as Confidential, Secret or Top Secret, or for a file containing classified documents classified as Confidential, Secret or Top Secret. The checklist of the file is useful if the individual is familiar with the whole file, because in this case the entry of the meeting in the checklist of the file replaces the entries in the checklists of individual classified documents.

A checklist shall be drawn up for the initiation of a classified document at the level Confidential, Secret or Top Secret. Inspection sheets must also be drawn up for all other classified documents that will be recorded in the collection sheet (according to Section 13(2) of the Decree, only classified documents of the same classification level may be recorded in the collection sheet), because until the collection sheet is closed, each of these classified documents will be handled separately and often differently and individual classified documents can thus be accessed by a different range of authorised persons.

After the collection sheet has been closed, pursuant to Section 13(4) of the Decree, it is always possible to manipulate only the entire file, which, at the time of closing the collection sheet, consists of stored classified documents registered in the collection sheet. It is highly advisable to draw up a file checklist after the collection sheet has been closed, otherwise the persons who will have access to the file would have to record acquaintance with the content of classified documents in all individual checklists of classified documents which form the file and to which they will therefore have access.

Theoretically, the creation of a file checklist before the collection sheet is closed is also not excluded. Given that, in most cases, it is necessary to handle individual classified documents separately, its management would be superfluous, except in very specific situations, since the entries in it would have to be made essentially in duplicate with the entries in the checklists of the individual classified documents composing the file.

9. QUESTION: Is it necessary to create a new checklist for a classified document if the classified document is re-registered under a new reference number within a single point of registration?

ANSWER:

The checklist is, pursuant to Section 3(1)(f) of the Decree, an administrative tool intended for keeping an overview of persons who have become acquainted with the content of a classified document or file with a state authority, a legal person or a natural person doing business.

If a classified document is re-registered under a new reference number within a single point of registration, for example in a collection sheet or other negotiation protocol, a new checklist need not be created for that classified document. The new reference number shall be indicated on the existing checklist (see the model checklist set out in Annex 6 to the Decree).

10. QUESTION: What happens if, after opening the outer envelope of a consignment delivered by the postal licence holder, the addressee discovers that another addressee is indicated on the inner envelope of the consignment?

ANSWER:

Where the consignee of a consignment delivered by the postal licence holder, after opening the outer envelope of that consignment, finds that another addressee is indicated on the inner envelope of the consignment, he shall register the consignment without opening the inner envelope, inserting the word ‘envelope’ in column 6 of the Rules of Procedure instead of indicating the number of sheets.

We recommend that the recipient immediately contact the sender in this matter. The consignor may send an authorised representative to the consignee to check the contents of the consignment. If the consignee confirms that the contents of the consignment were not intended for the consignee, or if the consignor does not address the situation in the manner indicated, the consignee shall proceed using Section 10(3) of the Decree and return the consignment to the consignor. It shall include in column 7 of the Rules of Procedure, for example, the words ‘Inadvertently delivered’, the words ‘Inadvertently delivered’ on the unopened inner envelope of the delivered consignment, the name and address of the consignee who inadvertently received the consignment, the date, first name, surname and signature of the person in charge of the Rules of Procedure.

Where more than one reference number appears on the inner envelope (the consignment contains more than one classified document), the record in the minutes shall be kept according to the highest classification level resulting from the abbreviation of the relevant classification level given in the reference number.

Due to the fact that the consignee does not open the inner envelope and there is no access to classified information (if the consignment was not intended for him, he does not fulfil one of the legal conditions for access to classified information – need-to-know), a checklist is not drawn up in this case.

11. QUESTION: What is considered the creation of a document? Is it a copy or approval by an employee with signature authority?

ANSWER:

On a classified document, the originator is obliged to indicate, inter alia, the date of origin (Section 21(1) of the Act,
Section 14(1) and (4), Section 16(1) and Section 17(1) of the Decree). The date of origin shall also be indicated on the classified annexes to the classified document.

We consider the creation of a classified document to be the moment when the classified document is actually physically drawn up. In the case of a classified document or an annex in paper form, it shall be the moment when it is printed or ‘written’ by hand; in the case of a classified document or attachment in non-documentary form, e.g. storage medium, time of data entry, etc.; in the case of a classified document in electronic form created in the electronic file system, we consider the creation to be the insertion of the relevant classified file (components).