Transparency advocates in Mexico are concerned about a provision in pending legislation that could be used to sanction public officials who disclose or order the disclosure of information.
The controversial provision was added late in the process to a package that Congress is considering to flesh the constitutional FOI reforms approved earlier this year. (See previous FreedomInfo.org report.) By Feb. 7, 2015, Congress is required to enact general laws providing additional detail. A drafting process during recent months involved civil society.
Late in the process, senators added Article 208, which establishes that there will be sanctions for public servants and agencies that improperly reveal confidential data or information that affects the fulfillment of public functions or could cause harm or damage to the public officials or agencies.
This means that officials of the FOIA regulatory body, the Federal Institute for Access to Information and Data Protection (IFAI), could be sanctioned for ordering the disclosure of information that another agency says would cause harm to public officials. This provision is discussed in an Animal Politico article by Tania L. Montalvo (in Spanish), referring to an ongoing controversy about disclosures concerning a 2010 massacre of migrants in San Fernando. (See previous FreedomInfo.org report).
In the article, Ana Cristina Ruelas from Article 19 gives an example of how this clause could be used; “If I ask for information about the San Fernando massacre and IFAI decides to order the opening of the information, but according to PGR [Mexico’s Public Prosecutor’s Office], the release of this information affects their functions because it does not allow them to continue with their investigations [relating to investigative files], then there could be a sanction against IFAI. If this article is not eliminated, civil society considers that the balance of the law is not positive.”
A draft of a Transparency and Access to Information Bill was presented Dec. 2 by the main political parties (PRI, PAN, PRD and PVEM) before the Mexican Senate. (See article in El Punto Critico.)
While supportive of many of the proposals, members of civil society groups have criticized some of the proposed reforms, claiming that some of the exemptions included would provide too broad a scope for agencies to deny access to information of public interest. (See October article by Montalvo and December article in Melenio.com, both in Spanish.)
Another concern is that the draft does not do enough to protect 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.
The legislation was referred to the Anticorruption and Citizen Participation and the Legislative Studies committees.
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