By Ana Cristina Ruelas
The author is the Right to Information Program Officer at ARTICLE 19, México and Central America
Mexico became the lead chairman of the Open Government Partnership (OGP) on 2014, although we are far from openness.
The government’s rhetoric is all about transparency and co-creation but in their offices they are pushing us backward, to opacity and zero accountability.
On Feb. 7, 2014, there was a Constitutional reform that increased significantly the guarantee of right to information (RTI). The reform gave autonomy to the Federal Transparency Institute (IFAI) [1] and made its resolutions binding [2]. It also expanded the number of entities covered by the law to include public unions, political parties, public funds and every person who receives and spend public money. Finally, it forced all authorities to generate information when related to their powers and competence.
This reform gave the Senate a year to approve the General Law, but the time has passed and the discussion is still going on.
On October 2014, the Senate invited a group of civil society organizations [3] to draft the General Law in an “open parliament” process that took 200 hours of work and the observations of 20 experts from academia and civil society organizations. The final initiative was presented to the Plenary on Dec. 2, 2014, with two modifications that were not approved by the civil society working group: A) an exception to disclosure when the information requested affects economic stability and, B) a sanction for the transparency institute’s public officials who publish information that could generate damage to the covered entities – whatever this means.
Despite this, the initiative was ground-breaking. It gave enough power to the federal transparency institute in order to act independently, controlled the interference of the executive power in its decisions. It provided a limited list of exceptions that could only be applied with a harm test.
Importantly, considering the lack of rule of law we are involved in, the proposals said that no information could be withheld as classified when it is related to gross human rights violations and crimes against humanity – even if there is no official recognition of them.
Summarizing, it reproduced the highest international standards for right to information and the National Supreme Court’s jurisprudence.
80 Last-Minute Proposals Undermine Agreement
Then, last week during a press conference, Senator Arely Gómez (PRI) said that they had asked the covered entities for observations and the President’s Legal Advisor sent 80 modifications which undermine the scope of the original initiative.
These changes go in two paths: A) to limit the possibility to access to all information that can uncover corruption and human rights violations and B) to control the power of IFAI.
The most worrying are:
- The inclusion of the federal and state executive power as part of the Transparency National Council which is the governing body of the Transparency System and is in charge of the transparency national policy. The original initiative said that the Council was composed by the 33 federal and state transparency institute’s commissioners, a representative of the Statistics Institute and the National Audit Office.
- The elimination of the prevalence of the RTI law when there is conflict with other laws and the recognition of existing exceptions of publicity [4].
- The inclusion of public security and national defense as an exception from disclosure.
- The elimination of the power of the transparency institutes to determine the public interest of information related to gross human rights violations and crimes against humanity. The institutes can only order the publication of information when there is an official recognition of their existence [5].
- The harm test will only be applied by the covered entities if the information requester appeals the first answer.
- The covered entities will not have to generate the information requested if they justify the reason why they did not exercise the functions related to that information. For example, if the General Attorney’s Office justifies that it does not generate statistics of criminal investigations then he can declared the nonexistence of them.
- Information related to public services infrastructure, economic, monetary and financial stability can be classified for an indefinite period of time.
- The elimination of sanctions for public officials who classify information improperly or declare the nonexistence of it.
- The elimination of the duty to publish the names of the people and enterprises whose tax liabilities have been condoned by governments.
- Every covered entity can ask the President’s Legal Adviser to appeal the transparency institute’s resolutions [6] before the Supreme Court of Justice.
IFAI, who had played a limited and passive role on this matter, came out on Monday with a Decalogue [7] that raises almost the very same concerns as civil society.
Backward Steps
If these changes are approved they can lead us where we were on 2006 — before the recognition of the RTI principles in the Constitution and the Supreme Court criteria we have gained throughout these years — neutralizing the effects of the last Constitutional reform.
Therefore, I wonder how Mexico can still be the leader of the OGP if there is no willingness from the President’s Office to make a change and effectively guarantee RTI to all their citizens. I know OGP is not only about transparency and access to information and that it is supposed to solve particular problems. But no Action Plan can be completed with this limited legal framework. Mexican civil society organizations have sent a letter to the OGP protesting the government’s proposed changes (CSO letter in English and Spanish.)
The transparency and openness the government preaches is clearly just a display. In the past year, Mexico was involved in serious corruption issues related to the white house of the President’s wife and security issues for the forced disappearance of 43 students from Ayotzinapa. The President responded by saying that transparency and openness would outline government actions from there on. However, there is plenty of difference between this momentum and the position of his legal advisor and his party who fight for regression.
These weeks are crucial for the General Law final approval. Senators are still negotiating changes and suppose to bring a final draft before the end of the month but timing is still unclear.
[1] The transparency Institute is the RTI oversight body, there are 33 (one for the federal level and 32 for each Mexican State).
[2] Only the President’s Legal Adviser can appeal the resolution for national security matters.
[3] Colectivo por la Transparencia, México Infórmate and Red por la Rendición de Cuentas.
[4] In Mexico’s legal framework there are an important number of exceptions of publicity such as strict reserve to all criminal investigations (article 16 of the Federal Criminal Procedure Code) and the classification of public officials asset declarations (article 40 of Responsibilities Law).
[5] The public entity in charge of calling gross violations of human rights is the National Commission of Human Rights, but it has only made such declaration 3 times since 2011 and has not reopen cases from the past.
[6] In the initiative he could only appeal the resolutions related to the Federal Executive Power.
[7] See the Decalogue at http://inicio.ifai.org.mx/Comunicados/Comunicado%20IFAI-019-15.pdf
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