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International Focus
Mexico is recognised as having one of the most robust and progressive access to information statues internationally. Recent criticisms of it's implementation, however, threaten Mexico's esteemed position and raises the question as to whether legislative strength guarantees widespread compliance.
Background
Mexico's Constitution, (as modified 1977), says that 'the state shall guarantee the right to information' (Article 6). At the time of the passing of the Transparency and Access to Government Information Act (LFTAIPG in Spanish) in 2002, FOI advocates were full of praise for the new regime. Kate Doyle from the National Security Archive in the US said, "The final product is a very good law: well-conceived, well-articulated and unequivocal in its intent to guarantee of the right of citizens to obtain information about their executive branch." [1] Toby Mendel has described the law as "among the more progressive right to information laws found anywhere." [2]
The Act was approved in Mexico in 2002 and came into force in 2003. President Vicente Fox proposed the adoption of the country's first FOI laws amidst social pressure for greater accountability and the law received unanimous votes in both chambers of the Mexican Congress. FOI was part of the changing Mexican political landscape at the turn of the century. In the 1990s, the state media was deregulated and opened up to private competition and journalists uncovered cases of government corruption. [3] The 70-year-long one-party rule system came to an end in 2000. Open government was a campaign commitment of successful presidential candidate Fox. Human Rights Watch said, "The transparency law may prove to be the most important step Mexico has taken in its transition to democracy since the 2000 election." [4]
Legislation
The Act extends to all government bodies and regulates both the Right to Access information and the Right to Privacy. All citizens can request information from government departments, autonomous constitutional bodies, and other government bodies at the federal level. [5] All 31 Mexican states, as well as the Federal District (Mexico City) have also adopted right to information laws. The law also opened Mexico's historical archives to public scrutiny.
The Act also created the Federal Institute for Access to Information (IFAI in Spanish) as an independent body to enforce the law. The IFAI is both the appellate body responsible for reviewing responses and an ombudsman in charge of strengthening the 'culture of transparency' in Mexican society. Although it is part of the executive branch, it has a separate funding stream and significant operational autonomy. [6] The Open Society Justice Initiative notes it's budget is more generous that of any other similar body globally. For example, the IFAI's annual budget of about US$22 million (240 billion Mexican pesos) compares with that of the UK Information Commissioner's Office about US$19 million (£10,578,44) in 2003/04). [7]
Like most FOI laws, the LFTAIPG rests on a premise of disclosure, defining all government information as public (Article 2), and directing government agencies and entities to favour 'the principle of publicity of information' (Article 6) over secrecy. It requires agencies to publish in a routine and accessible manner all information concerning their daily functions, budgets, operations, staff, salaries, internal reports, and the awarding of contracts and concessions (Article 7). It grants citizens the right to seek the release of information that is not already public through a simple request process (Article 40), with a right to appeal an agency's decision to deny information (Article 49), and the right to take the case to court in the event that the appeal is denied (Article 59). [8]
There are a number of unique innovations, however, that sets apart Mexico's FOI laws on a global stage. Most notably, Article 14 of the law singles out information regarding crimes against humanity or gross human rights violations as unique, and expressly prohibits the government from withholding such information under any circumstance. "It's existence is a major achievement for the pro-access community and distinguishes Mexico in the global context. No other FOI law in the world has a similar clause." [9] A further unique aspect of Mexico's regime is that if a public authority fails to respond to a request on time, the answer is automatically considered to be positive and the information must be handed over within ten working days. The existence of such an afirmativa ficta clause is crucial since it puts considerable pressure on government agencies to respond expeditiously to requests. Only the FOI laws in Colombia and Austria have similar procedural guarantees. [10]
Another feature is the one stop Internet portal, the 'SiSi' (Sistema Integrado de Solicitudes de Información: Integrated System for Information Requests). The SiSi enables requesters to file queries online from anywhere in Mexico with Internet access. The SiSi issues reference numbers, and these can be used to track the status of a request. Requesters in Mexico City without Internet access may go to one of the IFAI's offices in the city and file requests on computers available for that purpose. [11]
The Mexican Federal Access to Information Institute reports that of 37,732 requests filed with executive bodies in 2004, the average time for responding was 10.8 working days, about half the required period, and that the average for all requests was 11.4 working days. [12] This volume of requests is interesting to compare with Mexico's neighbour, the US, who in 2004-2005 received 52,010 requests to federal departments. This is considered an impressive feat by FOI advocates who note the US has a much larger administrative apparatus and its FOI law has been on the books for three decades. [13] Use of the Act in Mexico is increasing - request numbers rose by 12 per cent from 2008 to 2009, and more than half of the people filing the requests were between the ages of 20 and 39. [14]
Successes and Shortcomings
Mexico's FOI law was hailed by many independent bodies as a success. Human Rights Watch says that the law "dealt a major blow to [the] culture of secrecy." [15] Global studies of FOI have shown Mexico to be performing better than more affluent nations with older FOI regimes. While 'mute refusals' are extremely common responses to information requests throughout the globe, Mexico is an exception. For instance, the Open Society Institute's (OSI) study ranks Mexico as number 1 in the world in terms of explicit written answers to FOI requests [16]. They attribute this to "a concerted effort by civil society, NGOs, and government officials to implement a new access to information regime." [17]
However, while there are many positive aspects of they way FOI functions in Mexico, the regime suffers from some typical problems that plague other Latin American and developing nations.
While 250,000 requests have been made between 2003 and 2007, 97 per cent of these have been made electronically. Only 20 percent of the population has access to the Internet. Furthermore, only 50 percent of citizens are aware of the law and the IFAI. [18] The IFAI may be structurally sound, but the Kate Doyle from the NSA - full of praise for the legislation in 2002 - notes government officials are found to routinely ignore rulings of the IFAI without any repercussions. [19]
The NSA has too criticized the lack of transparency beyond the executive: "The famously dysfunctional, corrupt and closed judiciary, in particular, is sorely in need of new transparency standards that will open its operations to public scrutiny." [21] There is also a special exemption in the FOI law which prohibits the government from sharing any information which might, 'harm economic or financial stability.' "No other access to information law in the world has a similar reserve clause protecting economic "stability" in such a broad manner." [20] Pursuant to Article 14, information expressly required by another law to be confidential is one of the exceptions to releasing information. "Commercial, industrial, tax, bank and fiduciary secrets established by law are specifically mentioned - so that the existing secrecy regime is left in place." [21]
Political will for FOI is waning. At the start of Fox's six year presidency, requests were processed in speedy fashion, requests were found to be relatively simple. Today, however, they are becoming more complex and less straightforward to answer. Restrictions on access to information from public entities have been stiffened in the second administration of the conservative National Action Party (PAN), under President Felipe Calderon, who took office in late 2006. Doyle says this is a difficult time in Mexico with regard to access to information, "because they have realised (in the government) that these laws are causing problems, and they don't like it". [22]
But FOIA advocates hold out hope, that by making more and more requests, the citizens of Mexico will have the confidence to confront their government. "It will take perhaps another 20 years to get all the drug dealer dossiers," says Thomas Blanton, also from the NSA. "Maybe another 20 years until we fully know what the police did in Guerrero [a reference to a 1998 massacre by the military of a dozen indigenous people in the community of El Charco]. It's a very long struggle. But it has to be done." [23]
References
[1] Kate Doyle, 'Mexico's new Freedom of Information Law', National Security Archive, June 2002, http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB68/
[2] Toby Mendel, 'Freedom of Information: A Comparative Legal Survey, UNESCO, Paris, 2008 (2nd ed.)
[3] Robert Michener, 'The Surrender of Secrecy: Explaining the Emergence of Strong Access to Information Laws In Latin America', (PhD thesis), 2010
[4] Mendel
[5] David Banisar, 'Freedom of Information Around the World 2006: A Global Survey of Access to Government Records Laws, July 2006)
[6] John M. Ackerman, 'Mexico's Freedom of Information Law in International Perspective', http://www.fundar.org.mx/secciones/publicaciones/pdf/right_to_know/SEC8%20John%20M.%20Ackerman.pdf
[7] Open Society Justice Initiative (OSJI), 'Transparency and Silence: A Survey of Access to Information Laws and Practices in 14 Countries', New York, 2006, http://www.soros.org/initiatives/justice/focus/foi/articles_publications/publications/transparency_20060928
[8] Doyle
[9] Ackerman
[10] Ackerman
[11] OSJI
[12] The Mexican Federal Access to Information Institute, p.176
[13] Akerman
[14] Daniela Pastrana, 'Freedom of Information Laws a Model; Not So the Practice', 28 September 2010, Inter Press Service http://ipsnews.net/news.asp?idnews=52992
[15] Human Rights Watch, Mexico: Lost in Transition, May 2006, http://www.hrw.org/en/reports/2006/05/16/mexico-lost-transition-0
[16] Akerman
[17] OSJI
[18] World Bank development blog, 'IFAI and the agenda for transparency in Mexico', June 2008, http://blogs.worldbank.org/governance/ifai-and-the-agenda-for-transparency-in-mexico)
[19] Pastrana
[20] Akerman
[21] Mendel
[22] Pastrana
[23] Pastrana
