The FSB Central Archive: Live Secrets Of Those Who Are Dead

Studying Russian archives, one can come to a paradox: the older information is, the more thoroughly is is guarded and secured and the more stamps of secrecy are there on the documents. History may appear beyond the law since even courts avoid arguing with archives, e.g. Moscow City Court – with the Central Archive of the Federal Security Service (FSB).

Nikita Petrov, a historian and senior research fellow of the Memorial Society, applied to the FSB, asking to declassify four orders issued in 1945-1950 by the USSR Ministry of State Security (both the state and the ministry do not exist now) in order to work with them in the archive reading-room.

The researcher has information that the orders in question approve the structure of the Ministry’s departments in Germany after the World War II. He believes that the documents contain no names or other personal data.

The archive answered that

• one of the orders requested is declassified and available in the archive reading room, and

• free access to other three documents is prohibited since the “expertise concerning declassification possibility” has revealed that the documents contain information related to state secret.

Petrov applied to the Moscow City Court in order to recover his violated right to information.

Access to information from governmental archives is the most acute problems in Russia today. Ivan Pavlov, JD, PhD, IIFD Board Chair, has met such problems more than once. Today, he renders legal support to the International Memorial Society contesting in the Supreme Court a joint Order of the Miniscty for Culture, the Ministry for Internal Affairs, and the FSB, restricting access for citizens to archive information on political repressions.

The Law on State Secret limits classification term up to 30 years. It can be prolonged only upon a desicion of an inter-departmental commission for state secret protection.

The FSB, denying Nikita Petrov of access to information, also refers to the Law on State secret, though the youngest document requested by him was issued in 1950 and there is no decision of inter-departmental commission on classification prolongation.

The Moscow City Court heard the case on December 13, 2010. There, a FSB official expressed the opinion that the Law on State Secret, approved in 1993, may address only documents issued later. This logic may lead to criminal prosecution of near half of all Russian historians who should have had access to documents issued before 1993 and classified for some time.

But the court agreed with the FSB arguments and denied Petrov of information access. Although Russian law is not law of practice, such a negative decision may be “copied” by many other judges and court instances in similar case since governmental archives are hiding a lot of sealed and stamped socuments.

Nikita Petrov: “The argument that the Law on State Secret of 1993 is not retroactive – is inconsistent and contradicts the law principles. Any lawyer can prove that law provisions introducing new responsibility norms or strengthening the existing norms are not retroactive, but if a law cancels some prohibition or liberalizes punishment, it is retroactive. For example: if a law limiting imprisonment term by 30 years is approved tomorrow, anyone who will have been imprisoned for 30 or more years should be released automatically… The same situation with secrecy stamps fo the Soviet period.

“In my opinion, if the FSB itself will need for publication the orders I have requested, they would remove the secrecy stamp immediately. But now they do not want to form a precedent, being afraid that if one researcher will be provided with archive information, hundreds of researchers will demand thousand of documents soon.”

Daria Sukhikh, IIFD senior lawyer, assures that the court decision will be contested: “We have already filed a cassation appeal pending review in the Supreme Court. The first instance court has not even touched the issue of data classification fesibility, believing that some vague internal expertise decision is sound enough, while the Law provides only inter-departmental commission with right to prolong cassation term. We hope that the appeal court instance will listen to our arguments”.