By Michael Evans and Jesse Franzblau
This article first appeared March 7 in Migration Declassified, a project of the National Security Archive, the parent organization of FreedomInfo.org.
Clearing the decks after a recent overhaul of Mexico’s transparency regime, the Mexican Senate last week rejected a request by the current group of Federal Institute for Access to Information (IFAI) commissioners to remain in their posts until the end of their current terms. Beginning in May, the newly-strengthened IFAI will be led by a fresh panel of commissioners who, as a result of the reforms approved on February 7, will wield significantly greater autonomy and oversight authority than their predecessors.
So what does this all mean for our efforts to increase transparency around issues affecting migrant rights?
Since its formation in 2003, information advocates in Latin America and beyond have viewed IFAI as a model for similar bodies in their own countries. But over the last year, the current panel of IFAI commissioners has been divided and weakened by internal conflict, as members aired accusations against one other in the media, dooming its chances for Senate approval from the start. In January 2013, commissioner Ángel Trinidad Zaldívar called newly-elected president Gerardo Laveaga Rendón “lazy and ignorant” and questioned why his colleagues elected him as the body’s leader. Commissioner Sigrid Arzt Colunga currently stands accused of making numerous access to information requests under false names, in many cases for information on her own colleagues at IFAI. Commissioners have also been taken to task for excessive international travel.
With Mexico’s access to information system now in a state of flux, it seems like a good time to reflect on the most important legacy of the outgoing IFAI panel: its record on transparency. In the past few months alone the commissioners have issued a number of important rulings—both positive and negative—in response to appeals filed by our Mexico/Migration project. We’ve seen appeals rejected on technicalities, withering dissents, and, on more than one occasion, passionate, well-reasoned defenses of the right to information in the face of defiant federal agencies. And while few of these cases represent outright victories (in the face of continued stonewalling by Mexican federal agencies), our experiences with these and other access to information cases offer some lessons for the new cohort (as yet unnamed) commissioners that will take over in May.
Despite the recent scandals, IFAI has been an important tool to ensure compliance of federal agencies with Mexico’s access law. Looking over a number of recent IFAI rulings, several things jump out. In most cases the commissioners have produced clear and thorough examinations of what the law requires and take pains to develop strong legal arguments to support their rulings. Unlike appellate panels in the U.S., IFAI commissioners will, of their own accord, draw on outside experts and other evidence (like media reports) to support their arguments. The rulings have also been relatively expedient; the 9 rulings mentioned below were all made within a three-month time frame. This is impressive, particularly in comparison to the U.S. system, where agencies can take years to respond to FOIA requests (and even longer to fulfill an appeal (see NSArchive audit report)), and where most appeals are managed by individual agencies, with no independent oversight body comparable to IFAI.
IFAI has also set an important precedent in its willingness use declassified foreign government records to support its transparency rulings and to take federal agencies to task for not finding similar information. In several cases, the commissioners cited declassified U.S. government documents as supporting evidence in making favorable rulings on our appeals for disclosure of records relating to US-Mexico bilateral issues. IFAI has even assumed the burden of translating these declassified records to ensure the information is fully considered.
In one important human rights case, IFAI cited a declassified cable from the U.S. Embassy in Mexico (provided in our appeal) in ordering the National Migration Institute (INM) to revoke its “no documents” (“inexistencia”) response and conduct an exhaustive search for records relating to the firing of INM officials accused of targeting migrants for abuses [IFAI Resolution 5361/13, request # 0411100075613]. IFAI quoted directly from the declassified U.S. document, and translated the paragraph confirming the arrest of INM officials. In response to the IFAI ruling, after conducting another search, INM located and ordered the release of public versions of its files on the firing of the six officials in Tamaulipas in 2011.
In another “inexistencia” case, IFAI ordered the Office of the Attorney General (PGR) to conduct another search for records relating to a May 2011 meeting between U.S. Customs and Border Patrol (CBP) representatives and officials from Mexico’s PGR and other offices [IFAI Resolution 5334/13, request # 0001700206313]. IFAI’s ruling cited a declassified U.S. document we provided as evidence of the May 2011 meetings, where CPB representatives met with Mexican agencies to conduct an “undercover operations technical assessment” to aid Mexico’s security forces and PGR in “implementing effective and sophisticated covert surveillance techniques.”
Not all the cases have been positive, and some have exposed the limitations of the oversight body, notably in cases where agencies defy IFAI rulings. In one case, IFAI, citing a declassified U.S. cable, overturned the determination by INM that it did not have any records on a 2008 visit by U.S. officials, and ordered the institute to conduct another search for documents responsive to our information request [IFAI Resolution 4614/13, request #0411100066913]. INM defied the decision, however, and continued to declare that it had no such records within its files, contrary to the legal arguments presented in the ruling. Other Mexican agencies had no problem in locating documents responsive to the same series of meetings.
In other cases, IFAI has denied our appeals on purely administrative grounds. Several appeals have been thrown out based on discrepancies between the name used on the original request and the name used for the appeal. The discrepancy in names is due to changes in personnel working on our projects, and the preference in filing requests on behalf of the National Security Archive, as an organization, to protect the identity of the individual. (In the U.S., agencies receive FOIA requests on behalf of organizations without dispute.) Nonetheless, in some cases, the commission members has dismissed our appeals based on the differences in these names [see, for example, IFAI Resolutions RDA 0058/14, RDA 0066/14, RDA 0224/14, and dissenting opinion in RDA 5370/13].
Ironically, the commissioner who has been at the forefront of the decisions to dismiss these appeals, Sigrid Arzt Colunga, is herself accused of using false names to send information requests. According to reports, some 88 requests for information were sent from Sigrid Arzt Colunga’s computer, in some cases using names of other public officials, including the names of other IFAI commissioners (Aristegui Noticias). The cases emphasize the need to clarify rules and ensure safeguards for petitioners who wish to make requests anonymously or on behalf of an organization. Given her exposure on this particular issue, perhaps it’s no surprise that Arzt Colunga has taken such a hard line on inconsistencies in the names of requesters and appellants. Even in cases that have gone our way, Arzt Colunga has taken the time to write detailed dissents, arguing for a strict interpretation of rules involving the identity of the requester.
Below is a summary of some other recent IFAI rulings in cases brought by the Mexico/Migration project:
- IFAI Resolution 5370/13, request # 0000400256713: IFAI ordered the Interior Ministry (SEGOB) to revoke its no documents response and conduct another search for records relating to a February 2012 meeting with former U.S. Secretary of Homeland Security, Janet Napolitano. In the ruling, IFAI cited as evidence and translated 4-pages of a declassified U.S. document on the meeting with Mexico’s then-Secretary of Interior Alejandro Poire.
- IFAI Resolution 5142/13, request # 0001700220713: In this case, IFAI upheld the decision by the Office of the Attorney General (PGR) to deny records relating to the arrest of 14 individuals in the wake of the killings of migrants in San Fernando, Tamaulipas (see prior post on San Fernando massacre). IFAI cited a declassified FOIA document, a cable sent from the U.S. consulate in Matamoros, which reported in April 2011 on the arrest in Tamaulipas and transfer of 14 presumed TCO (transnational criminal organization) members to Mexico City, under custody of the Office of Special Investigations of Organized Crime (SIEDO) part of the Attorney General’s office. Nonetheless, IFAI upheld PGR’s decision to withhold from disclosure its investigative files on the case.
Looking back at these decisions, the outgoing IFAI commissioners, though fraught with internal conflict, were not as terrible at their jobs as one might assume given all the bad press they’ve gotten. And while there is certainly room for improvement, one hopes that the new panel does not throw out the baby with the bathwater.
In our experience, the now “lame duck” IFAI commissioners have in many cases showed a real willingness to promote transparency and hold federal agencies accountable, but lack the tools necessary to force them to comply with their rulings. At the moment, the only resort for frustrated requesters beyond IFAI is federal court, an option not readily accessible to average citizens. Will IFAI’s new authorities translate into greater transparency for average citizens? Certainly this is something to watch for as the new panel takes over in May.
Migration Declassified will be watching as the new body takes shape in the weeks and months to come and will provide further analysis on the implications for open government proponents and migrant rights defenders in upcoming posts.
Filed under: Latest Features