Agreement on non-disclosure of state secrets.

One of the ways to protect legally protected secrets (state, official, commercial and other) is to establish in the employment contract the obligation of the employee to maintain the confidentiality of such information.
In this article, we will consider what state, official and commercial secrets are, the employee’s responsibility for the disclosure of secrets protected by law, as well as termination of the employment contract if the employee discloses these secrets.
Article 57 of the Labor Code of the Russian Federation allows the employer to conclude an employment contract with the condition of non-disclosure of legally protected secrets (state, official, commercial and other), with any employee, if this information is known to him in connection with the performance of official duties.
The condition on non-disclosure of secrets protected by law refers to additional conditions of the employment contract and is included by agreement of the parties. As a rule, this condition is provided for in an employment contract with an employee who will know information that is a protected secret in the course of performing work functions.
Let’s consider what kind of information belongs to state, commercial and official secrets.
According to Article 2 of the Law of the Russian Federation of July 21, 1993 N 5485-1 “On State Secrets” (hereinafter – Law N 5485-1), state secrets mean information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational-search activities, the spread of which may damage the security of the Russian Federation.
The list of information constituting a state secret is a set of categories of information in accordance with which information is classified as a state secret and is classified on the grounds and in the manner established by federal law.
The list of information constituting a state secret is established by Article 5 of Law N 5485-1, as well as Decree of the President of the Russian Federation of November 30, 1995 N 1203 “On approval of the List of information classified as state secrets.”
The conclusion of an employment contract for work in this area is possible only if the person concerned is admitted to state secrets. The procedure for admitting officials and citizens to state secrets is defined in Article 21 of Law N 5485-1 and by-laws.
The admission of citizens to state secrets is carried out on a voluntary basis and provides for certain restrictions and additional obligations for them, including:
– assuming obligations to the state for non-dissemination of information entrusted to them, constituting a state secret;
– consent to partial temporary restrictions on their rights in accordance with Article 24 of Law N 5485-1;
– a written consent to the conduct of verification activities in relation to them by the authorized bodies;
– familiarization with the norms of the legislation of the Russian Federation on state secrets, providing for liability for its violation.
Mutual obligations of the employer and the hired person are reflected in the employment contract. The conclusion of an employment contract before the end of the inspection by the competent authorities is not allowed (Article 21 of Law N 5485-1).
It should be noted that if the employer makes a positive decision on the admission of an employee to state secrets, the obligations of citizens to the state to comply with the requirements of the legislation of the Russian Federation on state secrets, with whom an employment contract is concluded, are reflected in the employment contract, and the obligations of citizens with whom a labor contract is not concluded the contract is drawn up in the form of a receipt. This is indicated by paragraph 10 of the Instruction on the procedure for admitting officials and citizens of the Russian Federation to state secrets, approved by Decree of the Government of the Russian Federation of February 6, 2010 N 63. Federation on State Secrets.
According to Article 21 of Law N 5485-1, for officials and citizens admitted to state secrets on an ongoing basis, social guarantees are established in the form of percentage bonuses to wages, depending on the degree of secrecy of information to which they have access. For employees of structural units for the protection of state secrets, in addition to the social guarantees established for officials and citizens admitted to state secrets on a permanent basis, a percentage bonus is established to wages for the length of service in these structural units.
The rules for paying monthly percentage bonuses to the official salary (tariff rate) of citizens admitted to state secrets on a permanent basis and employees of structural units for the protection of state secrets were approved by Decree of the Government of the Russian Federation of September 18, 2006 N 573 “On the provision of social guarantees to citizens who admitted to state secrets on a permanent basis, and employees of structural units for the protection of state secrets.
A trade secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services or obtain other commercial benefits (paragraph 1 of Article 3 of Federal Law No. 29.07.2004 98-FZ “On Trade Secrets” (hereinafter – Law N 98-FZ)).
Information constituting a trade secret (production secret) should be understood as information of any nature (industrial, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities that have actual or potential commercial value due to their unknown to third parties, to which third parties do not have free access on a legal basis, and in respect of which the owner of such information has introduced a trade secret regime.
Please note that the trade secret regime cannot be established by persons engaged in entrepreneurial activities in relation to the following information (Article 5 of Law N 98-FZ):
1) contained in the constituent documents of a legal entity, documents confirming the fact of making entries about legal entities and individual entrepreneurs in the relevant state registers;
2) contained in documents giving the right to carry out entrepreneurial activities;
3) on the composition of the property of a state or municipal unitary enterprise, state institution and on the use by them of the funds of the relevant budgets;
4) on environmental pollution, the state of fire safety, the sanitary-epidemiological and radiation situation, food safety and other factors that have a negative impact on ensuring the safe operation of production facilities, the safety of each citizen and the safety of the population as a whole;
5) on the number, on the composition of employees, on the system of remuneration, on working conditions, including labor protection, on indicators of industrial injuries and occupational morbidity, and on the availability of vacancies;
6) on employers’ debts for wages and other social benefits;
7) on violations of the legislation of the Russian Federation and the facts of bringing to responsibility for these violations;
8) on the terms of tenders or auctions for the privatization of objects of state or municipal property;
9) on the size and structure of income of non-profit organizations, on the size and composition of their property, on their expenses, on the number and remuneration of their employees, on the use of unpaid labor of citizens in the activities of a non-profit organization;
10) on the list of persons entitled to act without a power of attorney on behalf of a legal entity;
11) the mandatory disclosure of which or the inadmissibility of restricting access to which is established by other federal laws.
In addition, the list of information that cannot constitute a commercial secret is approved by Decree of the Government of the RSFSR of 05.12.1991 N 35 “On the list of information that cannot constitute a commercial secret.”
Along with information that cannot constitute a commercial (official) secret, the current legislation defines the signs of information that is confidential and not subject to disclosure.
According to Decree of the President of the Russian Federation of March 6, 1997 N 188 “On Approval of the List of Confidential Information” (hereinafter – List N 188), this type of information includes the following information:
– information about the facts, events and circumstances of the private life of a citizen, allowing to identify his personality (personal data), with the exception of information to be disseminated in the media in cases established by federal laws.
So, according to paragraph 1 of Article 12 of the Federal Law of November 15, 1997 N 143-FZ “On acts of civil status”, information that became known to an employee of the civil registry office in connection with the state registration of a civil status act is personal data, refers to categories of confidential information, have limited access and are not subject to disclosure.
– Information constituting the secrecy of the investigation and legal proceedings, as well as information about protected persons and measures of state protection carried out in accordance with the Federal Law of August 20, 2004 N 119-FZ “On State Protection of Victims, Witnesses and Other Participants in Criminal Proceedings” and other regulatory legal acts of the Russian Federation;
– official information, access to which is limited by public authorities in accordance with the Civil Code of the Russian Federation and federal laws (official secret);
– information related to professional activities, access to which is limited in accordance with the Constitution of the Russian Federation and federal laws (medical, notarial, lawyer secrets, correspondence, telephone conversations, postal items, telegraphic or other messages, etc.).
According to Article 61 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens, approved by the Supreme Council of the Russian Federation on July 22, 1993 N 5487-1, information about the fact of seeking medical help, the state of health of a citizen, the diagnosis of his disease and other information obtained during his examination and treatment constitute a medical secret. The citizen must be confirmed the guarantee of the confidentiality of the information transmitted by him.
It is not allowed to disclose information constituting a medical secret by persons to whom they became known in the course of training, performance of professional, official and other duties, except for the cases established by parts 3 and 4 of Article 61 of the Fundamentals of the Legislation of the Russian Federation on the protection of the health of citizens, approved by the Supreme Council of the Russian Federation 07/22/1993 N 5487-1.
– Information related to commercial activities, access to which is restricted in accordance with the Civil Code of the Russian Federation and federal laws (trade secret);
– information about the essence of the invention, utility model or industrial design before the official publication of information about them.
Article 11 of Law N 98-FZ provides for the procedure for protecting the confidentiality of information within the framework of labor relations. In order to protect the confidentiality of information, the employer must:
1) to acquaint the employee, whose access to information constituting a commercial secret, is necessary for the performance of his labor duties, with a list of information constituting a commercial secret, the owners of which are the employer and his counterparties;
2) familiarize the employee against the receipt of the trade secret regime established by the employer and with the measures of responsibility for its violation;
3) create the necessary conditions for the employee to comply with the trade secret regime established by the employer.
Note!
An employee’s access to information constituting a trade secret is carried out with his consent, unless this is provided for by his labor duties (paragraph 2 of Article 11 of Law N 98-FZ).
In order to protect the confidentiality of information, the employee must:
1) comply with the trade secret regime established by the employer;
2) not to disclose information constituting a commercial secret owned by the employer and his contractors, and without their consent not to use this information for personal purposes;
3) transfer to the employer, upon termination or termination of the employment contract, the material media of information available to the employee, containing information constituting a commercial secret.
The employment contract with the head of the organization should provide for his obligations to ensure the protection of the confidentiality of information owned by the organization and its counterparties, and responsibility for ensuring the protection of its confidentiality.
The employee has the right to appeal in court the illegal establishment of a trade secret regime in respect of information to which he received access in connection with the performance of his labor duties.
As for official secrets, according to Part 2 of Article 1470 of the Civil Code of the Russian Federation, a citizen who, in connection with the performance of his labor duties or a specific task of the employer, became aware of the secret of production, is obliged to maintain the confidentiality of the information received until the exclusion of the exclusive right to the secret of production.
Note that List N 188 contains six types of information of a confidential nature, while separating commercial and official secrets.
In particular, official secrets include official information, access to which is restricted by public authorities in accordance with the Civil Code of the Russian Federation and federal laws.
In some federal laws (for example, in the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation”, in the Federal Law of July 21, 1997 N 114-FZ “On Service in the Customs Authorities of the Russian Federation ” and others) the term “official information” is used, which in its essence represents an official secret.
Thus, an official secret is information about the activities of state bodies and their employees, which is mostly of state interest.
As a rule, the list of information constituting an official or commercial secret of an organization is determined by the head of the organization.
Responsibility for disclosure of state, commercial and official secrets.
Disclosure of information constituting a trade secret entails disciplinary, civil law (Article 1472 of the Civil Code of the Russian Federation), administrative (Article 13.14 of the Code of Administrative Offenses of the Russian Federation) or criminal (Article 183 of the Criminal Code of the Russian Federation) liability in accordance with the legislation of the Russian Federation (Article 14 of Law N 98 -FZ).
An employee who, in connection with the performance of labor duties, has gained access to information constituting a trade secret owned by the employer, in the event of intentional or careless disclosure of this information in the absence of corpus delicti in the actions of such an employee, shall be subject to disciplinary liability in accordance with the legislation of the Russian Federation.
An employee who used information constituting a commercial secret and did not have sufficient grounds to consider the use of this information illegal, incl. received access to it as a result of an accident or error, cannot be held liable in accordance with Law N 98-FZ.
According to paragraph 7 of Article 243 of the Labor Code of the Russian Federation, the disclosure of information constituting a secret protected by law is the basis for bringing the employee to full liability, provided that the obligation of the employee not to disclose the specified information is provided for by the employment contract concluded with him or an annex to it, and if full liability for the damage caused by the disclosure of such information is expressly provided for by federal law. This damage is compensated by the employee within the limits of the average monthly earnings.
Failure to comply with this information may also serve as the basis for termination of the employment contract at the initiative of the employer.
Termination of an employment contract.
First of all, we note that if, when hiring, an employee refuses to include in the employment contract a condition on non-disclosure of secrets established by law, then the employer has the right to refuse him to conclude an employment contract. This position is expressed in the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation.” In particular, paragraph 10 of the said Decree states that the employer, for the purposes of efficient economic activity and rational property management, independently, under his own responsibility, makes the necessary personnel decisions (selection, placement, dismissal of personnel) and the conclusion of an employment contract with a specific job seeker is a right, not an obligation, of the employer.
In addition, the employer has the right to present to a citizen applying for a vacant position, the requirements that are necessary in addition to the typical or typical professional qualification requirements due to the specifics of a particular job.
As a rule, the condition of non-disclosure of statutory secrets is included in the employment contract before it is signed. However, if the need for such a condition arose already after the conclusion of the employment contract in the process of fulfilling the employees’ labor duties, then by agreement of the parties, the terms of the employment contract may be changed or supplemented.

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