Transparency Advances in Mexico. . . in Reverse

5 February 2010

By Emilene Martínez Morales (emilene@mexicoinformate.org)
Translated by Jesse Franzblau

(Disponible en español)

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Since the start of the year, President Felipe Calderón through actions undertaken by the Attorney General’s Office (Procuraduría General de la República – PGR) and the Secretariat of Interior (Secretaría de Gobernación – Segob), has shown a clear interest in weakening Mexico’s federal transparency oversight body (Instituto Federal al Acceso a la Información – IFAI) by proposing a separate tribunal to review IFAI’s decisions on FOI requests.

Article 59 of Mexico’s Federal Transparency Law on Access to Public Information establishes that IFAI resolutions will be binding and that federal agencies do not have the power to challenge these decisions. The Law gives requesters the right to appeal IFAI’s decisions in the courts, leaving the final decision in the hands of the judicial branch.

Furthermore, Article 6 of the Federal Constitution – recently reformed in 2007 – establishes that the right to access information is to be guided by seven specific governing principles. These principles mandate that specific procedures and mechanisms must be in place for FOI requests to be reviewed in a timely manner, and substantiated by independent and impartial bodies.

Despite these clear federal guidelines, the Attorney General’s Office has litigated for a year and a half before Mexico’s Federal Fiscal and Administrative Tribunal (Tribunal Federal de Justicia Fiscal y Administrativa – TFJFA), fighting IFAI resolutions on access to case files. The PGR has rejected IFAI rulings that mandate disclosure of these records, maintaining that these files should remain secret.

As an example of one of these cases, the National Security Archive sent a request last year to the PGR for access to a public version of case file 109/A1/98/B, related to the 1998 massacre that occurred in El Charco, Guerrero, where 11 people were killed during a military operation. Citing article 14 in Mexico’s transparency law, which states clearly that information related to the violation of fundamental human rights cannot be withheld from public disclosure, IFAI produced a resolution ordering the PGR to release a public version this past December, giving them ten days to turn over the material.

Almost two months later, the National Security Archive has still not received any of the requested material.

On January 6th of this year the Secretary of the Interior Fernando Gómez Mont defended PGR’s position, stating that IFAI resolutions on these reserved case files were not in accordance with Article 16 of the Federal Penal Code. He cited a proposal that was purportedly intended to reform Mexico’s Transparency Law, and make IFAI more “efficient”.

In an editorial published by El Universal, IFAI Commissioner Ángel Trinidad declared that the purpose of the aforementioned reform was to give agencies the possibility of appealing IFAI’s resolutions in the Federal Fiscal and Administrative Tribunal (TFJFA) or in other courts.

While Gómez Mont has maintained in various forums that Gobernación is not interested in limiting the authority of IFAI, he has not detracted from the declarations he made earlier this year.

In the same sentiment expressed by Gobernación, on January 27th, Mexico’s Attorney General, Arturo Chávez Chávez, sent a request to the Supreme Court (SCJN) asking to validate the reform made to the local transparency law of the state of Campeche. This reform enables a separate tribunal in the state to revise the resolutions emitted by the local Transparency Commission (COTAIPEC).

This reform was approved by the Institutional Revolutionary Party’s (PRI) majority in Campeche’s state Congress in June 2008, but due to a petition sent by the National Action Party (PAN – the party currently holding the presidency), it is being reviewed by the Supreme Court. The Court’s decision will be key to promote or dissuade similar attempts to weaken IFAI or local transparency commissions.

The past actions by the PGR, and the intentions put forth by Gobernación last month are worrisome. The President of IFAI, Jacqueline Peschard, said that even though the Federal Administrative Tribunal has declared that it has no jurisdiction to resolve these cases, one regional tribunal has already accepted one of PGR’s appeals.

If these attempts against the right to know in Mexico prosper, they will violate the Federal Constitution by adding another level to the FOI review process, and will contravene the principle of expedited processing. According to Article 6, appeals are to be processed by an independent and specialized government body.

IFAI, along with civil society organizations and coalitions including México Infórmate, have denounced these attempts to weaken the citizens’ right to access public information at the federal and local level.

This is not the first time attempts have been made to grant outside bodies the authority to appeal IFAI decisions. In 2006, two Senators from the PAN, Jorge Zermeño and Fauzi Hamdam presented an initiative to modify the law governing the Federal Administrative Tribunal, giving this body the ability to process challenges to IFAI decisions produced by federal administrative bodies.

No, it’s not déjà vú.

Originally published in Spanish for El Universal Blogs, México Infórmate.

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