By Joel Salas Suárez

The author is a commissioner of the autonomous Federal Institute for Access to Information and Data Protection (IFAI) in Mexico. This article first appeared in the blog of the Open Government Partnership. (Spanish version)

Mexico´s upper chamber is currently discussing the Transparency and Access to Information bill, following a Constitutional amendment held in 2014. This Law appears as a great opportunity, not only for transparency but for democracy consolidation.

In recent weeks, the long discussion of the Transparency and Access to Information bill has been constantly mentioned in national media and in the public debate. Parties involved in the process have made their stand. Nevertheless, at this point it is needed to keep in mind that there is too much at stake with this bill. We need to take these discussions out of the conjuncture and take them into the context.

First of all, the conception and consolidation of democracy in our country is at stake. In theory, Mexico has democratic institutions and laws. However, there are common malfunctions, mostly related to the relation between authorities and citizens. Changes started during the 80’s and 90’s, when political demands were centred into modifying the electoral rules to provide equal treatment to all political parties. Then, the notion of democracy was built through clean, equitable, and fair elections, as well as through changing the way authorities and citizens relate to each other.

All this fell flat just a decade later; democratic transition was understood by emphasizing the procedures that resulted in oversimplifying the concept of democracy and diminished its original insight, complexity and deliberative process.

By the 80’s, organized societal groups raised demands beyond political parties mechanisms, giving origin to what today is known as organized civil society. Civil society started demanding not only better services but access to public decisions. Democratic change sparked of a new relationship between public authorities and citizenry.

In consequence, the challenge we face today is to understand that Mexican democracy is an incomplete process as democracy goes beyond the electoral arena; therefore it is not exclusive of political parties’ mediation. This new way to understand democracy, consequently, changed the purpose of the Federal Institute for Access to the Public Information and Data Protection (IFAI). This is precisely what is at stake these days.

In 2014, when a constitutional amendment ruled that a new body should be created for guarantying transparency and data protection, it was also ruled a new relationship between authorities and society by stablishing the right of access to public information as a fundamental right. Assuring it is a step forward to a deliberative and participative democracy that cannot not be limited to the voting exercise but extended to a daily basis exercise of the right.

Following the amendment, deputies, academic and SCOs got together to draft a secondary law setting a hallmark in the topic. However, few days later after finishing this paramount task some involved political parties changed their minds about the “the transparency building” that was being constructed: “that window is too big, make it smaller; close that door; build up a wall”, so they thought. These severely damaged the spirit of the constitutional amendments originally designed. Public information must be an input that strengthens the implementation of an open government model based on collaborative and co-creation practices. One of open government objectives is precisely to involve population in all stages of public policy cycle that may interest or impact them.

So, what is being discussed at Mexico´s upper chamber these days is not merely another law, but one that can provide a new setting for social participation and create the foundations for a new relationship between authorities and citizens. This is a turning point in Mexico´s democratic history as fundamental right in modern democracies, the right of access to information, is pretended to be reinforced as a way to consolidate transparency and accountability that remain to be questioned since 2002 and 2007. The 2014 amendment conferred the IFAI powers to guarantee transparency, access to information, personal data protection, as well as to establish minimum equivalent criteria for federal, state and local public bodies via the creation of the National Transparency System (SNT).

Even more, this year Mexico chairs the Open Government Partnership (OGP). The General Law for Transparency is expected to set a reference in the aforementioned topics. Mexico must lead by the example.

Elections will keep being the procedure by which social diverse opinions will be manifested and ordered. The right to information goes beyond electoral cycles. It allows citizens to exercise democracy on a daily manner. Nowadays, vote can be fully exercised, but there are still limits for the exercise of the right of access to information . Will such limits prevail? This is what is at stake.

The transparency building

These are the main elements to take into account when constructing the transparency “building” as stated in the constitutional 6th article. These are issues that must be reinforced in the new law:

Regarding classified information:

1. There are judicial precedents in favour of the disclosure of information related to:
   1. Human rights gross violations, crimes against humanity, and corruption. IFAI has the power to resolve the disclosure of such information without previous pronunciation of another authority.
   2. Taxpayers’ fiscal exception and cancellation.
2. Strict normative control is needed for “exceptions” to the maximum disclosure principle, g. when the disclosure of information may affect the national economic stability.
3. An accurate harm test must support any classification of public information.
4. Disclosure of public trusts and extractive industries information must be widely enhanced.
5. As for the classification of public information, Law of Transparency must prevail over any other legislation.
6. Declarations of interests and of assets must be compulsory for all public servants.

Regarding sanctions:

1. IFAI’s autonomy implies that its resolutions effect does not depend on any other authority.
2. When in compliance with the maximum disclosure principle:
   1. Local watchdogs cannot be penalised if their resolutions affect other agencies or authorities functions.
   2. Public servants must not be punished in case they reveal information related to: corruption, gross threat to security, health or environment, gross human rights violations or crimes against humanity.

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