Mexican Transparency Law: A Chance to Strengthen Accountability

24 December 2014

By Emi MacLean & Adriana García  

This article appeared Dec. 15 in an Open Society Foundations blog in English and Spanish. The authors work for the Open Society Justice Initiative.

It is a measure of the contradictions of Mexico’s political system that the wave of public outrage over the disappearance and presumed murder of 43 college students in the town of Iguala in September is unfolding as the country’s legislature is reforming the country’s right to information law.

The right to information, or any form of transparency, has been evidently lacking in the Iguala case, as it has throughout the years of drug-related violence that have blighted Mexico. While the numbers are heavily disputed, there have been an estimated 20,000 disappearances over the past five years—including over 300 where the government itself has recognized the complicity of police. There is a systematic failure to investigate; prosecutions are rare.

The current crisis demonstrates the importance of meaningful reform that results in a more transparent Mexico, one where public access to information supports true democratic oversight of police, investigative and prosecutorial authorities.

Following constitutional reforms made earlier this year, a draft general law [PDF, Spanish] was sent to the Mexican legislature for review on December 2; a final law must be approved by February 7 next year. The federal government and the states must then establish their own laws consistent with this general law.

The current draft law represents a significant step forward. Perhaps most importantly, it would apply the transparency obligations outlined in this law to independent authorities, political parties, trusts and unions that receive public funds, in addition to the bodies covered by the current law, and not just at the federal level but also at the state and municipal levels. Currently the federal law applies to fewer entities and each state has its own law, with varying transparency obligations.

It includes other advances, including limiting the ability of officials to deny the existence of information that they should in fact hold, and no longer allowing the authorities to declare whole categories of information secret. Instead, it says that information can only be withheld from the public if its disclosure would cause harm, and only then provided that harm is greater than the public interest in transparency.

In this area, the new law would expressly prohibit the categorical classification as secret of all information related to criminal investigations—a matter of significant dispute in Mexico, where the country’s top court is due to hear a case concerning the refusal of prosecutors to disclose any information related to the investigation of three massacres of migrants.

Importantly, the draft law also adds corruption to the list of issues where information must never be withheld, along with both serious human rights violations and crimes against humanity. These apply across the board—as exceptions to all grounds for government secrecy. The draft law also clarifies explicitly that information commissions have the authority to determine that information is related to serious rights violations and must therefore be disclosed, even in the absence of a determination by a court or human rights body.

However, there are areas where the draft law should be strengthened. First, it allows for perpetual secrecy in “exceptional” circumstances where disclosure “could cause the destruction or disabling of infrastructure of strategic importance” or “harm monetary stability.” The breadth of this exception could swallow the rule.

Second, the law does not do enough to protect would-be whistleblowers or indeed any public servant who seeks to promote transparency. Under the draft law, they may face sanction if any disclosure they make could be judged to “affect the performance of functions or could harm” public bodies. This broad definition could easily prevent the release of state information that causes no harm to the public. Instead, the law should threaten punishment only where the disclosure of information actually causes or would likely cause harm greater than the public interest in the information disclosed.

Further, the law does not protect against other laws chipping away at the right to information. The law should require that no other law be permitted to authorize classification in violation of international law. Any other law which allows for secrecy of government information must also adhere to the same fundamental principles established within this law—including a presumption of disclosure, limited exceptions and a consideration of the public interest.

The significant legal reforms currently being debated in Mexico will only be the first step; securing proper compliance will be a shared challenge in subsequent years for all concerned. But the public outcry over the Iguala disappearances demonstrates the urgency of the reforms—of greater transparency in the interest of accountability.

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