President Laura Fernández has placed a broad range of Costa Rican security and intelligence information under a “State Secret” designation, restricting public access to records involving some of the most powerful security bodies and extending the secrecy to budgets, contracts and government procurement. The Executive Decree was signed by Fernández and Public Security Minister Gerald Campos on July 27 and took effect when it was published in La Gaceta.
The decree covers reports, documents, files and other information connected to the National Public Security Council, the National Intelligence and Security Directorate, known as the DIS, and the government group called Fuerza Élite, or Elite Force. It also reaches other security and national defense operations coordinated directly by the Presidency.
The scope goes well beyond active police investigations. Meetings, recordings, plans, logs and agreements can now be classified, along with information about police tactics, intelligence methods, operational capabilities, command structures, technology, intervention protocols, emergency response plans and systems used to evaluate the reliability of security personnel.
Perhaps most significantly for government transparency, the decree also covers spending and procurement. Entire administrative files related to security purchases can be restricted, including preliminary studies, technical requirements, bids, contract awards, financing arrangements, contracts and the execution of those contracts. The rule applies whether the government is dealing with another public institution, a private company, a consortium or a foreign contractor.
Fuerza Élite is one of the most directly affected groups. It brings Fernández together each Monday with the ministers of Public Security and Justice and Peace, the DIS leadership, chiefs of police forces under the Executive Branch and government advisers to coordinate the response to organized crime. Discussions, documents and agreements produced through those meetings now fall under the secrecy order.
The government argues that the restrictions are necessary because Costa Rica is facing increasingly sophisticated criminal organizations involved in drug trafficking, contract killings, money laundering and other forms of organized crime. Authorities say releasing operational details could expose current or future investigations, reveal weaknesses in police operations, place officers and other people at risk and damage cooperation with foreign security agencies.
Information about intelligence techniques and internal controls could also help criminal organizations identify government vulnerabilities or learn how authorities detect corruption and criminal infiltration. The decree reaches people outside government as well. Ministers, police chiefs, advisers, support personnel and public employees who encounter classified material must keep it confidential. Private consultants and contractors working with the covered agencies must sign clauses formally subjecting them to the State Secret rules.
Those covered by the measure are prohibited from revealing, reproducing, transmitting, sharing or selling protected information. The decree says their confidentiality obligation continues indefinitely, even after they leave government employment or a government contract ends. Violations can lead to administrative or criminal consequences and, for contractors, immediate termination of their agreements with the government.
The breadth of the decree, however, raises a significant constitutional question. Article 30 of Costa Rica’s Constitution guarantees public access to government offices for information on matters of public interest, while specifically exempting State Secrets. The General Police Law also provides that internal DIS reports and documents are confidential and allows the president to declare them State Secrets.
But previous Constitutional Chamber jurisprudence has taken a restrictive view of how that exception can be used. In a 2007 ruling, the court said State Secrets are an exception to the constitutional principles of government transparency and publicity and therefore must always be interpreted narrowly.
The same decision said restrictions on the constitutional right of access to public information are generally matters reserved for legislation and criticized the Executive Branch’s historical practice of declaring information secret through individual decrees in the absence of a comprehensive State Secrets law.
That distinction could become important because Decree 45870 does considerably more than protect intelligence reports or plans for an upcoming police raid. It places broad categories of spending, contracting, meetings and administrative activity outside ordinary public scrutiny.
Costa Rica’s National Archives Law provides another limit: documents classified as State Secret or restricted access lose that status after 30 years. That is separate from the new decree’s provision saying an individual’s personal obligation not to disclose protected information continues indefinitely.
The timing is also notable, although the dates matter. The decree was signed July 27, before the August 4 disclosure of an internal Ministry of Public Security intelligence report examining 122 police officers in southern Costa Rica, with observations about possible organized-crime links involving 116 of them. The publication of the decree in La Gaceta came less than a week after that report became public, but the decree itself predates the disclosure.
The State Secret order is now in force. Whether its unusually broad reach, particularly over public spending and contracting, survives constitutional scrutiny may be the next question
