freedom of information: overview
Freedom of Information—with its potential for enhancing the operation of the government, citizen participation, and economic development—is a key marker of the advance of democratic institutions in Mexico.
–IFAI, February 2006
Mexico’s Transparency Law was the most unambiguous achievement in the area of human rights during the Fox presidency.
– Human Rights Watch, 2006
Mexico’s access to information law (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental) was signed by President Vicente Fox on June 10, 2002, and took effect one year later, guaranteeing the public’s right to request and receive information from the federal government. With the law, Mexico created the innovative Federal Institute for Access to Information (Instituto Federal de Acceso a la Información Pública—IFAI), which established a new international standard for independent FOI oversight. Since the law’s inception, citizens have sent over 400,000 FOI petitions to government agencies through the electronic request system, first called SISI, now known as Infomex. The Infomex Website allows users not only to send requests and appeal agency decisions through IFAI, but to consult every request and public response ever processed electronically by the government. This type of electronic filing system gives citizens the ability to view the progress and trajectory of Mexico’s transparency over time, and represents one of the most advanced Web-based information portals in the world.
Mexico’s transparency law was a major step forward in the country’s democratic transition and continues to play a vital role in fighting corruption and forcing increased government openness and accountability. According to Human Rights Watch, passage of the law represented one of the most important human rights achievements accomplished during the government of Vicente Fox. The accomplishment was due in large part to civil society actors who conceived the law and convinced Mexico’s political leadership that it was necessary.
In 2001, a group of scholars, lawyers, reporters, editors and non-governmental organizations formed an alliance that came to be known as the “Grupo Oaxaca” or Oaxaca Group [see Oaxaca Declaration, May 2001]. The group’s objective was to ensure that the new Fox government would carry out its promise to promote new standards of transparency and openness. The group drafted its own freedom of information initiative [Link to Oaxaca Initiative] and presented it before congress on October 11, 2001. As the bill went through various stages of revision, the Oaxaca Group members took the unusual step of lobbying for it, working with legislators and the executive branch to turn it into law. The group saw the bill through to its unanimous passage in Congress on April 30, 2002, and its signature into law two months later.
[For further reading, see Kate Doyle’s article on freedom of information in Mexico; See also UNAM paper on the Oaxaca group]
Mexico’s openness movement was also propelled by human rights activists clamoring for access to official government archives on past state-sponsored crimes. In 1998, the National Security Archive published declassified U.S. government archives on the infamous 1968 Tlatelolco Massacre and called for the release of Mexico’s equivalent files. The Archive’s publication helped stimulate a national debate over access to Mexican government records on Tlatelolco and other notorious human rights abuses committed during Mexico’s authoritarian years [see Milenio article on the 1968 files]. On June 18, 2002, President Vicente Fox announced the opening of tens of thousands of formerly secret documents about state-sponsored terror from the 1960s to the 1980s. The “dirty war” files contain millions of pages of defense, intelligence and interior ministry records revealing information about the State’s role in the surveillance, capture, torture and disappearance of thousands of citizens during three consecutive presidencies. The documents are now available to members of the public in Mexico’s National Archives (AGN), and have been consulted by victims of the repression, human rights investigators, journalists, scholars and historians.
[For further reading see Kate Doyle’s article on the opening of the archives: see also report on human rights abuses using files from the national archives]
When the national freedom of information act became law in 2002, Mexico became the first Latin American country to impose special obligations on the State to open information related to grave human rights abuses. Article 14 of the law states that, “Information may not be classified when the investigation of grave violations of fundamental rights or crimes against humanity is at stake.” Nineteen out of 32 FOI laws passed by the Mexican states contain similar language. Unfortunately, the provision has not yet been fully tested and implemented. According to IFAI statistics as of 2009, only five requests made under the Mexican national law have gone to appeal citing Article 14. One of the five cases resulted in the heavily redacted release of the criminal investigation of former President Luis Echeverría for his role in orchestrating a 1971 massacre of student protesters. In another case, the National Security Archive cited Article 14 to request documents from Mexico’s Attorney General’s Office (PGR) on a 1998 massacre in El Charco, Guerrero, when 11 people were killed during a military operation. IFAI issued its resolution in December 2009, ordering the PGR to turn over a public version of the case file on this incident. As of March 2009, the PGR has still not released the material.
Mexico’s traditionally closed political structure has made it difficult for citizens to access not only human rights archives, but information related to the most fundamental ways in which government affects the daily lives of ordinary citizens. For this reason, citizens’ FOI requests have often focused on information related to issues such as the salaries of public officials, local school budgets, crime statistics, anti-pollution controls, the number of police patrols, government contracts, etc. The law has also been used by activists to advance community interests and engage with public institutions. Indigenous rights groups in the southern state of Guerrero, for example, have used the law to gain access to information about the distribution of medicine to local impoverished communities. In 2006, Indian activist Sowmya Kidambi traveled to Guerrero to share her organization’s experience in harnessing India’s FOI laws to address issues such as the environment, rural development, local government, and social justice. In other parts of Mexico groups have used the law to obtain records related to local highway projects, access to water, housing, education budgets, and many other issues, and have disseminated the information to affected citizens [see Comunidades program].
[also see Using FOI in Mexico in Defense of the Environment and for more information on types of requests made by Mexican citizens, and predictions on the trajectory of these requests, see the NSA study on FOI in practice: available in English and Spanish]
The transparency movement in Mexico has demonstrated that replacing the traditional structures of secrecy with a new culture of accountability requires extensive constituency building around the concept of the “right to know.” Although the Oaxaca Group no longer exists, its spirit carries on in diverse alliances since created by media, grassroots organizations, university programs, human rights advocates, indigenous associations, and other groups seeking to instill and institutionalize access to information in Mexico as a fundamental civil and human right.
International transparency movements have learned from Mexico’s FOI experience. IFAI officials and civil society groups alike have collaborated with their counterparts in other countries working on FOI legislation, sharing the lessons Mexicans have learned in the implementation and oversight of national and state-level information laws. In February 2009, Guatemalan officials traveled to Mexico City to meet with IFAI in order to get advice on implementing Guatemala’s transparency system. Chile created an oversight council (the Consejo de Transparencia) after it passed a law in August 2008, and has worked with Mexican officials to help the Consejo function similarly to the way IFAI operates in Mexico [see Pablo Olmedo’s freedominfo interview].
Mexico’s openness advocates have tried to be vigilant about protecting their new right. In 2006, concerned about a perceived indifference to transparency on the part of candidates in the upcoming presidential race, activists sought to strengthen and consolidate their gains by pushing for a comprehensive reform of the Mexican Constitution, which would guarantee the right to know and establish permanent standards for openness that could not be changed at the whim of a new government. In 2007, Mexico’s Congress passed amended text to Article 6 of the Constitution, establishing new guidelines for FOI implementation, standardizing access among the country’s 32 states, and further entrenching the transparency law in Mexico’s political and legal institutions. In a matter of months, every state adopted the reform and passed it through their legislation, demonstrating the political will at the local level to follow the federal government’s lead on public transparency measures. On July 20, 2007, the constitutional reform was approved and Federal and state agencies were given a year to comply with its mandate.
Mexico’s activists have challenged public officials to live up to the mandates laid out in the constitutional amendment, and respond to the citizen’s demand for information. Journalists have been particularly strong FOI proponents, backing the law from the advent of the Oaxaca Group to the sustained media campaign that promotes widespread use of the law today. Journalists are increasingly using the law to gain access to official records on public spending, leading to the disclosure of abuses of government resources from the local level, all the way up to the president’s office. Activists have also launched an annual transparency event known as México Infórmate. Modeled after Sunshine Week in the United States, the initiative brings together journalists, civil society organizations and government officials in a nation-wide campaign to promote an open dialogue about transparency and the citizen’s right to know.
For all its successes, however, there are still ongoing challenges that threaten Mexico’s transparency achievements. Since the start of 2010, civil society has spoken out against reforms proposed by the Felipe Calderón administration that will undermine IFAI’s role as the final arbiter in FOI disputes. One of the proposed reforms would allow Mexico’s Judicial Tribunal to review IFAI decisions if they are challenged by federal agencies. Openness advocates have pointed out that if the reform goes through, it will violate the Federal Constitution by adding another level to the FOI review process, and contravene the principle of expedited processing. According to Article 6, appeals are to be processed by an independent and specialized government body, and FOI experts point out that the Judicial Tribunal does not qualify. Regardless, agencies such as the Attorney General’s Office (Procuraduría General de la Republica) and the Ministry of Government (Secretaría de Gobernación), have voiced their support for this reform, and demonstrated their intent to weaken IFAI’s authority.
[See freedominfo piece by Emilene Martínez on transparency set backs in Mexico]
[See also Article 19 press release on latest FOI challenges]
Mexico’s openness community has voiced their opposition to these proposals through various media outlets. Civil society and journalists in Mexico have coordinated their efforts, taking advantage of electronic forums under the name México Infórmate – including blogs, Facebook, and Twitter – to provide information about the latest transparency advances and challenges. These outlets are also increasingly important forums for spreading information about events organized by NGOs, universities, and FOI experts involved in transparency promotion.
Government agencies have been forced to respond to this demand for instantaneous information, creating their own electronic forums for citizens to share their opinions about the government’s latest political initiatives. Hundreds of citizens commented on a Web site created by Gobernación, for example, to voice their concern over the controversial reforms set forth by the Calderon administration. Electronic information sharing will likely continue to play a pivotal role in Mexico’s cultural shift from state secrecy to political openness.
Mexico’s openness movement will continue to play a central role in the global transparency movement, but only if the country protects the accomplishments already made in government transparency and finds ways to continue to progress. The National Security Archive’s Mexico Project Director Kate Doyle points out: “Mexico’s leadership in establishing the right to information for its citizens set the bar very high for transparency campaigns worldwide. But openness is on the defensive in Mexico today. The federal government has taken aggressive steps to dismantle some of the most important innovations of the Mexican openness movement – including the structure and effectiveness of the IFAI – and civil society needs to fight back. If Mexicans are unwilling to protect the new rights they worked so hard to obtain, they risk losing them to an increasingly secretive and intransigent bureaucracy.”
Article 6 of the Mexican Constitution is amended and addresses the right to government information for the first time: “access to information will be guaranteed by the State.”
March 20: the first local to access to information law is approved by the Congress of the State of Sinaloa.
April 24: the Federal Transparency and Access to Information Law is approved unanimously by Congress.
June 12: the Federal Transparency and Access to Information Law is enacted. Citizens are able to file requests electronically through the Sistema de Solicitudes de Información (SISI).
March: a comprehensive reform of Article 6 of the Constitution is passed in the federal Congress. It established principles of transparency and provides minimum standards for access to public information at the federal, state, and municipal level.
December 1: Infomex, a new electronic filing system replaces SISI. Infomex allows users to file access to information requests to the federal executive branch, the Supreme Court and several states and municipalities.
Periodismo por el Acceso a la información article about the government’s proposed reform, and challenges to IFAI
Article 19 press release about setbacks to Mexico’s transparency system and challenges to IFAI
Emeequis México Infórmate issue published 2009: This edition of Mexico’s national magazine, Emeequis, includes articles and commentary on the right-to-know in Mexico, along with a feature article by Kate Doyle, who discusses the importance of access to government archives with information on human rights crimes. It includes a feature article by Kate Doyle on her expert testimony in human rights trials, and the importance of access to government archives in the advancement of human rights
Jonathon Fox, Carlos Garcia Jimenez and Libby Haight, “Rural Democratization in Mexico’s Deep South: Grassroots Right-to-Know Campaigns in Guerrero,” Journal of Peasant Studies 36(2), 2009.
NSA Mexico Freedom of Information project, FOI in Practice: Analysis of the Mexican FOI System Measuring the Complexity of Information Requests and Quality of Government Responses in Mexico (in English). Also published in Spanish in the UNAM law review.
Fundar, Centro de análisis y investigación and the Woodrow Wilson Center book (2007)
Mexico’s Right-to-Know Reforms:Civil Society Perspectives. Available on-line in English and Spanish.
Human Rights Watch: Lost in Transition (2006)
Kate Doyle, “Forgetting is no Justice: Mexico Bares it Secret Past,”World Policy Journal (2002). Article on the release of the “dirty war” archives.
Kate Doyle, National Security Archive Mexico Project, Freedom of Information In Mexico, May 2, 2002, updated June 10, 2002.
Kate Doyle, “Report: In Mexico, a New Law Guarantees the Right to Know,” freedominfo.org, July 9, 2002.
Kate Doyle, Comentarios sobre la ley Federal de Transparencia y Acceso a la Información Pública, UNAM (2003): Provides an early analysis of Mexico’s law in the UNAM law review
Transparency: What’s Next? (July 2008): In this article published in the Enfoque supplement of Reforma newspaper Alonso Lujambio, Commissioner and President of IFAI, offers an in-depth analysis of the constitutional reform and the challenges facing government bodies working to implement the mandatory changes set forth by the amendment of Article 6. English – Español
Secrecy Makes a Comeback in Mexico (April 2008): In this op-ed published by the LA Times Fulbright transparency fellow in Mexico City, Zachary Bookman, warns about the threats facing openness advocates in Mexico as the country’s recent gains in government transparency are increasingly coming under fire. Read the full article >>
FOI in Practice: Measuring the Complexity of Information Requests and Quality of Government Responses in Mexico (March 2008): The National Security Archive’s Mexico Project published the first comprehensive analysis of the Mexican freedom of information law: what information requesters have sought and how the government has responded. A version in Spanish of this report was published in the Derecho Comparado a la Información journal published by Mexico’s National Autonomous University (UNAM). English – Español
Follow-Up Report: The IFAI and Mexico’s Culture of Transparency (January 2008): Follow-up report from the Annenberg School of Communications of the University of Pennsylvania that looks at the successes of the Mexican Federal Institute for Access to Public Information (IFAI) after 5 years in existence. Among the topics discussed in the report is the constitutional reform and how it came about. Read the full article >>
For more on the Oaxaca Group
Oaxaca Group Freedom of Information Proposal, October 11, 2001 (English and Spanish text)
Oaxaca Declaration, May 24, 2001
Dr. Juan Francisco Escobedo, “Movilización del opinion pública en México: el caso del Grupo Oaxaca y de la Ley Federal,” UNAM Law Review (2003): This article analyzes the impact of Grupo Oaxaca – a group of academics, media owners and NGOs whose efforts helped lead to the federal FOI law in Mexico – and its activities in the public sphere.
Radio and video clips on FOI in Mexico:
Kate Doyle interview with Carmen Aristegui about México Infórmate, the Fujimori case and special Emeequis edition, September 2009.
Video of Sowmya Kadambi in Guererro: Follow link to NSA Mexico Transparency Program Website
Text from the freedominfo.org Global Survey: Freedom of Information and Access to Government Records Around the World, by David Banisar (updated July 2006)
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 Federal Law of Transparency and Access to Public Government Information was unanimously approved by Parliament in April 2002 and signed by President Fox in June 2002.(2) It went into effect in June 2003.
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.
Constitucion Politica de los Estados Unidos Mexicanos. http://info4.juridicas.unam.mx/ijure/fed/9/default.htm
Federal Law of Transparency and Access to Public Government Information. http://www.ifai.org.mx/publicaciones/taia.pdf. For an extensive review, see Kate Doyle, In Mexico, a New Law Guarantees the Right to Know. http://www.freedominfo.org/features/20020709.htm
Instituto Federal de Acceso a la Información Pública Homepage http://www.ifai.org.mx/
Annenberg School for Communications, The Federal Institute for Access to Information and a Culture of Transparency, February 2006. http://www.pgcs.asc.upenn.edu/docs/mex_report_fiai06_english.pdf
See Limac Asociación Civil Libertad de Información-México, http://www.limac.org.mx/