Nghị định 26/2020/NĐ-CP hướng dẫn Luật Bảo vệ bí mật nhà nước

DECREE

ELABORATING SOME ARTICLES OF STATE SECRETS PROTECTION LAW

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the State Secrets Protection Law dated November 15, 2018;

At the request of the Minister of Public Security;

The Government hereby promulgates a Decree elaborating some Articles of State Secrets Protection Law.

Article 1. Scope

This Decree elaborates some Articles of the State Secrets Protection Law concerning determination of state secrets and confidentiality of state secrets; reproduction and photographing of state secret containers; delivery and receipt of state secret containers; taking state secret containers out of storage; venues,  protection plans, equipment and devices for conferences, seminars and meetings containing state secret contents; reporting requirements for state secret protection and assignment of personnel for state secrets protection tasks.

Article 2. Determination of state secrets and confidentiality of state secrets

1. The creator of information included in a state secrets list must request the head of their regulatory body or organization to determine such information as a state secret, level of confidentiality and recipient of this state secret, number of copies to be distributed and whether the container of this state secret may be reproduced and/or photographed in the application for approval or in the notice of confidentiality of the object, location, speech or activity containing the state secret; and protect the state secret during the creation process. A document containing a state secret must specify the recipient, number of copies distributed, creator name and whether reproduction and/or photographing is/are permitted in the recipient section of the document. If it is an electronic document, the creator shall leave a confidentiality marking on the document after it is identified as a state secret and its confidentiality level is determined by the competent person; electronic documents printed for distribution must bear confidentiality markings as per regulations.

2. The recipient of information included in a state secrets list but not yet determined as a state secret must report to the head of their regulatory body or organization and deliver the information to the unit with competence in handling. The person assigned to handle such information shall request the competent head of regulatory body or organization to determine such information as a state secret, level of confidentiality and recipient of this state secret, number of copies distributed and whether the container of this state secret may be reproduced and/or photographed in writing. The information received must be protected during the receipt and handling processes.

3. The Ministry of Public Security shall stipulate specimen state secret confidentiality markings and specimen state secret confidentiality notices.

Article 3. Reproduction and photographing of state secret containers

1. Reproduction of a document containing a state secret means copying or making another copy based on the exact contents of the original or authentic copy of the document. Photographing of a state secret container means taking a photograph of the state secret container.

A document containing a state secret may be reproduced as a certified true copy, a copy of a certified true copy or an extract.

2. A state secret container must be reproduced and/or photographed at a safe location designated by the head of the regulatory body or organization directly managing the state secret. Such reproduction and photographing must be recorded into books for management of state secret reproduction and photographing.

3. Copies of documents containing state secrets must bear marks denoting that they are copies; photocopies of state secret containers must have photographing records. Copies and photocopies shall be made in permitted amount and excess or damaged copies shall be disposed of immediately. A copy or photocopy made in accordance with regulations in this Decree shall have the same legal value as its authentic copy and must be protected as if it were the original copy.

4. State secret containers shall be copied and photographed using only equipment and devices that cannot be connected to the Internet, computer networks or telecommunications networks, unless otherwise provided for by regulations of laws on cryptography.

5. Confidential telegrams shall be copied and photographed in compliance with regulations of laws on cryptography.

6. Minister of Public Security shall stipulate specimen marks denoting copies of state secret containers, specimen photographing records and specimen books for management of state secret reproduction and photographing.

Article 4. Delivery and receipt of state secret containers

1. Regulations on delivery of state secret containers:

a) Before a state secret container is delivered, the delivery must be register in the state secret delivery registration book. For state secret containers classified as “top secret”, only their subjects shall be registered in the book with the approval of persons with competence in state secret determination;

b) State secret containers must be put inside envelopes or packed separately. Envelope papers must be durable, water-resistant and non see-through; the adhesive must work properly and is hard to remove;

Containers of state secret classified as “top secret” shall be protected with two envelope layers: the inner layer shall bear the number and symbol of the container, recipient name and “Top secret” stamp and be sealed with the stamp of the regulatory body or organization; if the container is sent to a specific competent person, the inner layer shall also bear the "To be opened by addressee only” stamp. The outer layer of the container shall bear information seen on that of ordinary documents and the “A” symbol;

Containers of state secrets classified as “secret” and “confidential” shall be protected with one envelope layer, which shall bear the “B” or “C” symbol depending on the state secret’s confidentiality level;

c) Delivery of state secret containers must be managed by state secret transfer books.

2. Regulations on receipt of state secret containers:

a) After a state secret container is received, the receipt must be registered in the state secret receipt registration book;

b) If a state secret container bearing the "To be opened by addressee only” stamp arrives, the recipient shall register the receipt with the symbol written on the envelope and immediately deliver it to the addressee without opening the envelope. If the addressee is absent and the envelope bears an "Express" stamp, the envelope shall be delivered to the head of the regulatory body or organization or a person authorized to handle it by the head of the regulatory body or organization;

c) In case a state secret container is delivered against regulations on state secrets protection, it shall be delivered to the head of the receiving regulatory body or organization or the addressee (for containers with specific addressees) for handling and, concurrently, a notification shall be sent to the sender for remedy. If a state secret container appears to have been opened, replaced, lost or damaged, the recipient must promptly report to the head of their regulatory body or organization for handling.

3. The sender and the recipient of a state secret container(s) must check the quantity sent against the quantity received and inspect the container(s)’s packaging. If a container is missing or the packaging is inadequate, the recipient shall request the sender to remedy the issue before the receipt is registered in the logbook and the recipient signs to acknowledge receipt.

4. In case a state secret container bears a “Revoked document” stamp, the receiving regulatory body, organization or individual shall return the container before the deadline written on the document.

5. Electronic documents containing state secrets shall be delivered and received via the Internet, computer networks and telecommunications networks in accordance with regulations of laws on cryptography.

6. Codes shall be transported, delivered and received in accordance with regulations of laws on cryptography.

7. State secret containers registered using management databases in computers shall be transferred as printed documents to enable signing to acknowledge receipt and binding into a book for management purpose. Computers used to register state secret containers must not be connected to the Internet or any computer or telecommunications network, unless otherwise provided for by regulations of laws on cryptography.

8. Minister of Public Security shall provide for specimen state secret receipt registration books, specimen state secret delivery registration books and specimen state secret transfer books.

Article 5. Taking state secrets containers out of storage

1. The person taking a state secret container out of its storage for domestic or overseas business must submit a request for permission to the competent person mentioned in Clauses 1 and 2 Article 14 of the State Secrets Protection Law. After the business is completed, this person must report on management and use of the state secret to the person with competence in granting permission to take the state secret container out of its storage and return the container to the regulatory body or organization.

2. The request for permission to take a state secret container out of its storage for domestic or overseas business must include the full name, post and unit of the requester, type and subject of the state secret and confidentiality level of its container; use; time and location of use; and measures to protect the state secret.

3. A state secret container taken out of its storage must be stored and transported using safety equipment and devices decided by the head of the regulatory body or organization directly managing the state secret and must be protected while it is out of its storage.

Article 6. Locations, protection plans, equipment and devices for conferences, seminars and meetings containing state secret contents

1. A conference, seminar or meeting containing state secret contents shall take place in a closed meeting room on the premises of a regulatory body or organization. If it does not take place on such premises, the head of the regulatory body or organization deciding to organize the conference, seminar or meeting shall request the Ministry of Public Security/provincial police force to inspect the security and safety inside and outside of the venue; for conferences, seminars and meetings under the charge of the Ministry of National Defense/Government Cipher Commission, regulatory bodies affiliated to the Ministry of National Defense/Government Cipher Commission shall take on this task.

2. Equipment and devices used in conferences, seminars and meetings containing state secrets contents

a) A conference, seminar or meeting containing state secret contents shall use corded microphones and equipment and devices that have undergone security and safety inspection by the Ministry of Public Security/provincial police force before installation, excluding equipment and devices provided by the Government Cipher Commission; for conferences, seminars and meetings under the charge of the Ministry of National Defense/Government Cipher Commission, regulatory bodies affiliated to the Ministry of National Defense/Government Cipher Commission shall take on this task. Online conferences, seminars and meetings containing state secret contents must have their connections protected as per regulations of laws on cryptography;

b) Attendees of a conference, seminar or meeting containing top secret/secret state secret contents shall not carry devices capable of recording/transmitting information or recording audios/videos. For conferences, seminars and meetings containing confidential state secret contents, equipment and devices shall be provided at the request of the host;

c) When necessary, the regulatory body or organization in charge of a conference, seminar or meeting containing state secret contents may decide use of technical devices and equipment for audio/video recording; prevent acts of infiltration and data collection from the outside.

3. Plans for protection of conferences, seminars and meetings containing state secrets contents

a) For conferences, seminars and meetings containing top secret state secret contents, the in-charge regulatory body or organization shall decide to post guards to protect the outside; anticipate possible complicated situations that may compromise the safety and/or security of the conference, seminar or meeting and prepare plans for handling of such situations;

b) The meeting room of a conference, seminar or meeting containing state secret contents that lasts for more than 1 day must be sealed at the end of each day;

c) Only those invited by the in-charge regulatory body or organization may attend a conference, seminar or meeting containing state secret contents. Conferences, seminars and meetings containing top-secret state secret contents must adopt safety and security inspection measures applicable to attendees.

Article 7. Assignment of personnel for state secrets protection tasks

1. Office of the Central Steering Committee and Party Central Committee’s Commission; central bodies of socio-political organizations; Office of the National Assembly; Office of the President; Ministries, Ministerial-level bodies, Governmental agencies, Supreme People’s Court; Supreme People’s Procuracy; State Audit Office; and People’s Committees of provinces and central-affiliated cities shall assign personnel for protection of state secrets in offices or administrative units on a full-time basis.

2. Affiliates of the regulatory bodies and organizations mentioned in Clause 1 of this Article; Party Executive Committees of provinces and cities, provincial People's Councils; Party Executive Committees of districts and district-level People's Councils and People's Committees shall assign personnel for protection of state secrets in offices or administrative units on a part-time basis.

3. Minister of National Defense and Minister of Public Security shall stipulate assignment of personnel for protection of state secrets of armed forces and cryptographer forces on fulltime and part-time basis.

4. Standards for personnel assigned the tasks of state secret protection on fulltime and part-time basis:

a) They have moral values, meet standards pertaining to politics, possess legal and professional knowledge necessary for state secret protection, seriously abide by guidelines and policies of the Communist Party and laws of the State;

b) They shall protect state secrets; follow the assignment and mobilization of regulatory bodies and organizations and fulfill all tasks assigned.

5. Full-time and part-time state secret protectors are entitled to benefits as prescribed by law.

Article 8. Reporting requirements for state secret protection

1. Heads of the regulatory bodies and organizations mentioned in Clause 1 Article 7 of this Decree shall report on protection of state secrets under their management to the Ministry of Public Security, which shall submit consolidated reports to the Prime Minister, with the following requirements:

a) Summary reports shall be submitted every five years; preliminary reports shall be submitted annually;

b) Ad hoc reports shall be submitted immediately after state secret divulgence or loss or at the request of the Ministry of Public Security;

c) Data collection period for annual reports: from December 15 of the year preceding the reporting year to December 14 of the reporting year;

d) Annual report submission deadline: December 20 of the reporting year.

2. Reports on state secret protection shall focus on:

a) Analysis and assessment of situation related to state secret protection;

b) Results of state secret protection; strengths, weaknesses, causes thereof and lessons learned through direction and execution;

c) State secret divulgence and loss situation and figures; causes thereof and handling of consequences;

d) Forecasts; upcoming state secret protection focus and recommendations, propositions.

3. The Ministry of Public Security shall assist the Government with formulation of five-year summary reports and annual preliminary reports on nationwide state secret protection.

Article 9. Effect

1. This Decree comes into force from July 01, 2020.

2. The Government’s Decree No. 33/2002/ND-CP dated March 28, 2002 detailing implementation of Ordinance on Protection of State Secrets is annulled from the date on which this Decree comes into force.

3. Ministers, heads of ministerial-level agencies, heads of Governmental agencies, chairpersons of People’s Committees of provinces and central-affiliated cities and relevant regulatory bodies, organizations and individuals shall implement this Decree./.