FEBRUARY 2006
New Report: The IFAI and Mexico's Culture
of Transparency
A new report, released on 20 February 2006, looks at the
successes of the Mexican Federal Institute for Access to
Public Information (IFAI) after 4 years in existence, finding
IFAI to be a model institution for other countries. The
report also identifies several weaknesses of IFAI and recommends
strategies for guaranteeing its independence and expand
its functions within the government.
Read the full report >>
20 JANUARY 2006 New
Steps Toward IFI Transparency:
The Use of Domestic Remedies
Issa Luna Pla of the Mexican non-governmental organization
LIMAC reports for freedominfo.org's IFTI Watch that Mexico
this week established a landmark precedent for the application
of national freedom of information laws to the activities
of international institutions. More
>>
The
Constitution was amended in 1977 to include a right of freedom
of information. Article 6 says in part, "the right
of information shall be guaranteed by the state."(1)
The Supreme Court made a number of decisions further enhancing
that right.
The
law allows all persons to demand information in writing
from federal government departments, autonomous constitutional
bodies and other government bodies. Agencies must respond
to requests in 20 working days.
The
law creates five categories of privileged information. For
these categories, information can be withheld if their release
will harm the public interest. These include information
on national security, public security or national defense;
international relations; financial, economic or monetary
stability; life, security or health of any person at risk;
and verification of the observance of law, prosecution of
crimes, collection of taxes, immigration or strategies in
pending processes. There are an additional six categories
of exempted information. These are information protected
by another law that can be considered confidential or privileged,
commercial secrets, preliminary findings, judicial or administrative
files prior to a ruling, public servants responsibility
proceedings before a ruling, and opinions in a judicial
process prior to a final decision. Information can only
be classified for 12 years. Information relating to "the
investigation of severe violations of fundamental rights
or crimes against humanity" may not be classified.
Personal data is considered confidential and is not subject
to the 12 year rule.
Any
withholdings can be appealed to the internal unit or to
the Federal
Institute for Access to Public Information (IFAI).(3)
The IFAI can carry out investigations and order government
bodies to release information. IFAI received 2,639 appeals
in 2005 (5 percent of all requests) and resolved 2,091 of
them, up from 1,430 in 2004. IFAI found for the requestor
in 42 percent of the cases and confirmed the agency decision
in 17 percent of the cases. The rest were dismissed for
administrative or other reasons. Individuals but not government
bodies can appeal decisions to federal courts. There have
been over 100 cases heard by the courts since 2003. Many
of those cases were by banks which had been bailed out by
the government, or by public bodies such as the state oil
company (PEMEX) which were attempting to limit disclosure
claiming commercial secrecy. The courts have generally ruled
in favor of IFAI in those cases. 16 cases were brought by
requestors.
The
IFAI also has general duties to interpret the law, develop
criteria for classified and privileged information, help
create standards for archives, monitor the activities of
the agencies and generally promote the law. It has set up
a sophisticated electronic system for requests on the Internet
called SISI for the Executive agencies and arranged with
the Federal Election Institute to provide computers in their
offices for individuals in remote locations to use to submit
requests.(4) A review by the Annenberg
School for Communications found that the IFAI played a very
positive role in promoting transparency.(5)
Each
body must create a liaison unit to answer requests and fulfill
the other requirements of the law. They must produce a regular
index of all files, including privileged or confidential
files. They are required to publish an extensive amount
of information on their web sites, including structure,
directories, salaries of public employees, aims and objectives,
audits, subsidies and contracts. They are required to set
up information committees to review classification and non-disclosure
of information and monitor compliance of the body.
The
law has generally been hailed as a success. Human Rights
Watch says that the law "dealt a major blow to [the]
culture of secrecy" and describes it as "the single
most unambiguous achievement in the area of human rights
during the Fox presidency."(6) There
has been strong and growing use of the law. There were 50,127
requests in 2005 up from 37,732 requests in 2004. 47,000
were for public information, and nearly 3,000 were by individuals
asking for their personal information. Each year, over 90
percent of the requests are submitted electronically using
SISI. In 2005, 34 percent of the requests were from academics,
27 percent from the general public, 18 percent from businesses,
13 percent from internal government officials, and 9 percent
were from the media.
There
are some problems with implementation. Some agencies and
officials have filed lawsuits to oppose rulings or have
not complied with IFAI rulings (about 10 so far) and many
public bodies have poor archives that makes locating information
difficult. Awareness of the law among the general public
is growing but still somewhat low at 33 percent in 2004,
up from 22 percent in 2003. 20 percent were aware of the
IFAI in 2004, up from 12 percent in 2003. HRW also has expressed
concern that IFAI is vulnerable to political interference,
the possibility that a new administration would allow agencies
to resist compliance, the lack of progress in the other
branches and at the state level, and the failure of the
law to apply to political parties.
There
have also been legislative proposals that would undermine
the law. Two Senators introduced an amendment in March 2006
that would allow agencies to appeal decisions to the courts,
but would make the original requestor defend the appeal.(7)
That provision was withdrawn after the IFAI publicly opposed
it. A law on national security adopted in January 2005 allowed
public bodies to withhold some information but the final
version was amended to reflect the exemptions in the transparency
law.
The
transparency law also imposes privacy protection rules on
federal bodies. They are required to allow access to, correct,
and prevent misuse of personal information. The IFAI provides
decisions and oversight. There are four initiatives currently
pending in the Congress to create a separate Data Protection
Act that would allow individuals to access and correct records
held by public and private organizations and limit the use
of their personal information. Two would appoint the IFAI
as the oversight body. A project to amend Article 16 of
the Constitution to recognize the right of Data Protection
has been approved in the Senate.
FOI
laws have been adopted in 28 states and districts and there
are pending efforts in the four remaining states. Nearly
all of the states have their own independent information
commission.(8) There is considerable variation
in the laws and many are weaker than the national law.(9)
There is currently an effort to develop national minimum
standards for the state laws. Over a dozen have signed up
to the INFOMEX system run by the IFAI to facilitate electronic
access to records.
24
JUNE 2003 MEXICO:
Military Breaks Silence El
Universal newspaper (Mexico)
reports that the Mexican military, in an attempt to comply
with the country's new freedom of information law, has released
detailed statistics on court-martials.
The
Mexican Defense Department reported that since President
Vicente Fox took office in 2000, there have been 299 courts-martial,
including 210 convictions.
Of
those proceedings, 33 were on charges of murder, 31 for
insubordination, 26 for fraud, 24 for desertion, 22 for
robbery and 21 for drug-related offenses.
Mexico's
Federal Transparency Law went into effect June 12, requiring
all branches of government to provide copies of public documents
-- from government employees' salaries to details about
public programs and government contracts -- within 20 days
of any citizen's request.
To
find out more on the Mexican Transparency law, click here.
"Two
years after the passage of the Law for Transparency
and Access to Information, transparency in public
administration, both at the federal and local
levels had not been achieved. The implementation
of procedures to facilitate access to public information
and the lack of clarity in the process by which
state officials make information available to
public opinion remained areas of concern. However,
on March 30, the Supreme Court of Justice and
Federal Judiciary Council unanimously ruled that
the general public can review court rulings and
settlements made during the litigation process
and ordered the placement of court decisions on
the Internet. Many observers noted that the federal
law allows individual states wide liberty in interpretation
and development of procedures, thereby leading
to a lack of uniformity. Fifteen states had Access
to Information Laws but only 30 percent of these
can actually provide access to information in
a systematic manner."
Civil
Society, Public Information and Media (rating 1-100):
77 (Moderate)
Subcategory:
Access to Information Law (rating 1-100):
82 (Strong)
"In
2002, the Law for Transparency and Access to Public
Government Information (Ley Federal de Transparencia
y Acceso a la Información Pública
Gubernamental) was created to guarantee citizens
the right to access information and basic government
records. This law only contemplates access to
information of the federal public administration,
the legislature, the judicial power, and some
autonomous constitutional organizations. The access
to information of the local administration or
Congress is not contemplated in this law; however,
there has been a tendency to create state laws
to regulate the transparency of and access to
local government records. Today, most states of
the Mexican Republic
have already approved such a law, or are in the
process of approving it."
1)
Voice and Accountability: 0.36
2) Political Instability and Violence: -0.13
3) Government Effectiveness: -0.02
4) Regulatory Burden: 0.55
5) Rule of Law: -0.26
6) Control of Corruption: -0.27
