Mexico Passes New Freedom of Information Law
Mexico City, 2 May 2002 – On April 30, after weeks of debate,
negotiations, and some last minute grandstanding, the Mexican Senate unanimously
approved the country’s first freedom of information law. The 86-0 vote
followed six days after a unanimous vote in the House, and ushers in a
landmark piece of legislation aimed at guaranteeing the public’s right
to request and receive information from all three branches of government.
Passage of the law was not a foregone conclusion, even in the closing
hours of what was the last day of the congressional session. A faction
of the Institutional Revolutionary Party (PRI), which controls a majority
in the Senate, tried to block the vote necessary to take the initiative
out of committee and place it before the full Senate. Some time after 8
p.m. on April 30, supporters of the bill overcame the opposition and the
law passed.
The Archive is posting the full Spanish text of the new law, along with
the proposals initially submitted to Congress by the civil society collective,
Grupo Oaxaca (last October), and the Fox administration (in December).
The final version is a combination of the two earlier drafts, with some
new text written in the House process last week by negotiators from the
government, the Congress and the Grupo Oaxaca, who agreed to resolve the
differences between the texts. (Watch this space for a forthcoming English
translation of the final law with an analysis of the revised language.)
Background - Freedom of Information in Mexico
Mexico City, 11 April 2002 – The election on July 1, 2000 of
Vicente Fox Quezada as the new president of Mexico was a watershed in modern
Mexican history. Fox was the first victorious candidate from outside the
powerful
Partido Institucional Revolucionario (PRI) to take the
presidency in more than seventy years. Although the PRI was a direct descendant
of the revolutionaries who had thrown off dictatorship in Mexico after
1910, like all monopolies the party foundered in inefficiencies, nepotism
and profound corruption. Fox, who ran for president on the ticket of the
country’s oldest opposition party, Partido Acción Nacional
(PAN), promised to change all that.
Since taking office, the president’s ambitious agenda has included broad
fiscal reform, the reinvention of Mexico’s rigid political system, respect
for human rights, a new international activism, improved relations with
the United States, and much more. Fox’s critics complain that though his
vision is vast, his accomplishments to date are few and far between. Yet
there is one issue on which the administration has been willing to move
rapidly and fairly boldly: freedom of information. Fox’s decision to act
is a direct response to public pressure. As authoritarian, one-party rule
has given way to more democratic forms of governance, the administration
has faced increasingly urgent demands to break with the Mexican government’s
corrupt and secretive past in favor of a new openness and transparency,
and a new level of accountability to the Mexican people. Fox has responded
with a proposed law to open government information, past and present, to
public scrutiny. The law is before the Mexican Congress now, which pledges
to resolve what differences remain and pass a final version before the
end of the current session in late April.
The tale of how the proposed freedom of information law came about is
revealing in and of itself for Mexico’s transition. The administration’s
pledge to pass a law has become reality due to the determination and activism
of a collection of diverse representatives of civil society. The “Grupo
Oaxaca” – an alliance of scholars, lawyers, reporters and editors, and
non-governmental organizations that has been pushing for the public’s right
to government information for more than a year – submitted its own freedom
of information initiative on October 11. The group has kept up a constructive
dialogue with key deputies since then, and is well positioned to lobby
on the differences between its version and the government’s. The Fox administration
originally promised to introduce a freedom of information law by the time
Congress returned in late August 2001, but internal divisions delayed the
government until the very last minute. The president finally submitted
his draft just after midnight on December 1 (so that he could claim he
had fulfilled his promise to produce a law within his first year in office).
Since Congress went out of session on December 6, that left no time to
debate the law during this session, so the discussion did not begin until
Congress began a new session on March 15.
The good news is that the government initiative is not bad – considering
that President Fox’s own party, the PAN, is the only one of the three major
parties represented in Congress that opposes the law. There has been a
sea change since a first draft of the government’s law was leaked to the
press one year ago and today; indeed, it is clear that pressure by the
Grupo Oaxaca – as well as discussions with international groups such as
the National Security Archive – have caused a radical turn-about in the
conceptualization and drafting of the law inside the government. The first
version was appalling, with sweeping exemptions, gaping loopholes, and
no identifiable timetable. Reaction in Mexico was strong and negative,
with denunciations from many of the country's national, regional and local
newspapers. At that point, exclusive control of drafting the public access
law was taken away from the anti-corruption agency, SECODAM (Secretaría
de Contraloría y Desarollo Administrativo), and the Government
Secretariat (Secretaría de Gobernación) stepped in
and began to work on the law. This, despite the fact that Government Secretary
Santiago Creel is politically beholden to the PAN and has therefore been
cautious about proceeding too quickly on public access, a truth commission
and a special prosecutor on the “disappeared,” all issues that have become
increasingly pressing in the last few months. The consensus that emerged
after months of internal debate resulted in a far better proposal – and
one that looks, in places, very much like the draft sent by the Grupo Oaxaca.
There are four points of contention that remain to be resolved by the
congressional committee debating the final draft of the law, the Comisión
de Gobernación (Committee of the Government), before it presents
the draft to the full Congress (see Reforma, 3/29/02, p. 2A).
1. The right to information in Mexico is enshrined in the Sixth Article
of Chapter One (concerning “Individual Guarantees”) of the Mexican Constitution,
which states “El derecho a la información será garantizado
por el Estado” (“The right to information will be guaranteed by the
State”). The question now before the Committee of the Government
is whether the proposed new law is made obligatory by Article Six of the
Constitution (una ley reglamentaria), or whether it should be designated
as an administrative regulation (una ley administrativa). The Grupo
Oaxaca argues that the law should be obligatory to the Constitution as
that would provide the citizen with easier access to judicial redress,
whereas an administrative law – although not precluding judicial recourse
– would be significantly more cumbersome for the public, requiring them
to exhaust administrative procedures before redress to the courts.
2. There is agreement that the law will establish a “Federal Institute
of Access to Public Information” to oversee the government’s information
management and declassification practices, and to promote the right of
citizens to obtain government information. It will be an autonomous entity,
independent in its operations, budget and decision-making. The president
will name five commissioners to head the institute after consultation between
the Secretariat of Government and non-governmental social, professional
and academic organizations. The question is whether the president’s choice
of commissioners will be his privilege alone, or whether the nominees must
be ratified by a majority of votes in the House of Representatives. The
Grupo Oaxaca urges that the Congress be given authority to accept or reject
the nominations.
3. The Committee of the Government must define the extent to which the
Federal Institute of Access to Public Information has the power to interpret
the meaning of the law in its application.
4. The committee still must determine what will happen, precisely, in
the event that a government agency fails to respond to a public request
for information. The executive proposal provides the government with 10
days to respond to a public request. If there is no response, it will be
considered a denial of the request, in which case the citizen may appeal
the decision to the institute. The Grupo Oaxaca version says that if the
agency does not respond to a public request, it will be considered a positive
response, in which case the government has the obligation to provide the
information within ten days.
The current debate in Congress aside, there are questions about the
implementation of the law implied in both draft proposals that will no
doubt have to be worked out over time as the public begins to use it to
request information. Those questions concern the following issues:
-- The Three Branches of Government
As the Act now stands, Mexico’s executive, judicial and congressional
branches are subject to the new rules on public access to information without
distinction. What are the constitutional ramifications of a federal law
that applies identical standards for disclosure to the three branches of
government?
In the United States, requirements for disclosure on the executive,
congressional and judicial sectors are distinct. The FOIA mandates that
transcripts, notes and meeting minutes produced in government meetings
be made public (subject to review) – it does not, however, try to hold
Congress by the same standard and compel members or their staff to open
memoranda of conversations with private citizens. (Such interaction is
protected by the First Amendment.) Likewise, U.S. law requires that virtually
all judicial proceedings be open, but the same kinds of requirements are
not made on executive branch proceedings.
The Mexican Congress may eventually want to consider special rules for
the legislature and the judiciary that they draft, debate and pass separately.
To begin to achieve legislative transparency, they might, for example,
put some kind of “open hearings” rule into place, similar to the one instituted
in the United States. By the same token, the judiciary could be required
through another law or set of laws to open all trials to the public and
to make all rulings openly, except in exceptional circumstances.
-- Exemptions
National Security: Neither proposal contains a balancing test
in the national security exemption – something that the United States has
had only once (in the Executive Order signed by President Carter), but
which openness advocates in the U.S. believe is key to transparency in
this sensitive area. The balancing test indicates that potential harm caused
by the release of information cannot outweigh the importance of information
to public debate. In other words, if public interest is strong enough,
the government must consider releasing the information despite national
security concerns. (An example in U.S. practice would be the release of
information concerning past covert actions.)
Financial and economic stability: This exemption in the government
proposal is troubling. It is one thing to protect banking secrets (as does
U.S. law and the Grupo Oaxaca proposal), it is another thing entirely to
deny all information that may “Dañar la estabilidad financiera,
económica o monetaria del país” (“Harm the financial,
economic or monetary stability of the country”). One can envision the conflict
that this exemption is going to provoke when Hacienda (Treasury),
for example, claims that secret arrangements made between the government
and Mexico’s private banking sector must be exempt from public scrutiny
because their disclosure may harm the economic stability of the country.
Prior Investigations: The government draft appears to deny
information regarding all law enforcement investigations, whether currently
underway or from the past. This contrasts with the Grupo Oaxaca version,
which protects “Information that affects ongoing criminal investigations
and that which reveals procedural strategies in judicial or administrative
processes that are ongoing” (my emphasis) – which is a reasonable
standard. Once an investigation is closed, the information should be made
public.
Deliberative Documents: The Fox proposal seeks to withhold information
“which contains the opinions, recommendations or points of view that are
part of public servants’ deliberative process.” While it is appropriate
to protect deliberative information, the exemption should not apply to
documents that served as basis for a decision that was finalized. In that
case the underlying deliberative information should be open to the public.
-- Creation of Federal Records
Although both proposals are explicit on preservation of federal records
and mechanisms by which they are to be made accessible, neither appears
to contain an adequate clause regarding the creation of records. The Grupo
Oaxaca version says (Article 9) that: “During any meeting in which public
decisions are discussed and adopted, the bodies must produce a set of minutes
that will be preserved in official files.” The law could go further by
requiring the government to document every key decision and every significant
action taken by any public official or any public agency.
-- Search, Review and Duplication Fees
Neither proposal provides a satisfactory solution to the problem of
fees. The government version (Chapter V: “Fees for Access”) folds the cost
of an agency’s search and review process into reproduction fees, and indicates
simply that the requester will be charged for everything, rather than separating
search from duplication. This requirement could pose insurmountable obstacles
to a member of the public. The National Security Archive has had long and
bitter experience with this problem, in the years when government agencies
attempted to obstruct access to their information through the application
of onerous fees for search and review. In 1987, for example, the Drug Enforcement
Administration DEA told an Archive analyst that his request for documents
would cost $800,000 for the search alone. The Archive had to fight this
issue all the way to the U.S. Supreme Court, which let stand a lower court
ruling that the Archive was a representative of the news media and therefore
exempt from search and review fees. U.S. law makes a distinction between
commercial requesters (such as giant pharmaceutical companies seeking information
from the U.S. Food and Drug Administration) and non-commercial or media
requesters.
On the other hand, the Grupo Oaxaca proposal does not mention the cost
to the government of searching for information, which can be significant.
In the ideal world, public access to government information would benefit
most from the absence of fees, which will always present a temptation to
government agencies with an interest in resisting openness. But in
Mexico, the Committee of Government may well come down halfway between
the Grupo Oaxaca’s no-fees position and the Fox bill’s full-fees approach,
and charge only commercial requesters the full cost of search, review and
duplication of documents responsive to their requests, while providing
a fee waiver to other, non-commercial requesters.
-- Requirements to Provide Information in a Timely Manner
The two proposals establish deadlines, within which the government must
search, review and provide information to a requester: in the Fox proposal,
it is twenty working days and in the Grupo Oaxaca version, it is ten. Both
requirements appear excessively stringent. They may present an undue burden
on the government and even invite a situation in which public servants
seek to cut corners in the search and review process in order to meet the
deadlines. Instead, the law could provide a more reasonable time limit
– one that is neither overly optimistic about the government’s ability
to respond quickly, nor too onerous for the requester. For example, the
law could require that an agency respond in ten working days in the form
of a letter acknowledging a request, assigning it a number and stating
that a search has begun. Then the agency would have sixty days to respond
substantively to the request. Requests would have to be handled promptly
on a first come first serve basis, except in the event that a requester
indicates an urgent need for the information. Where the requester demonstrates
urgent need, the documents should be provided immediately.
-- Sanctions
It is encouraging that both the Fox administration and the Grupo Oaxaca
proposals incorporate sanctions in the event that an agency fails or refuses
to comply with the public access law. How those sanctions are applied –
and to whom, precisely – is not entirely clear, however, which is troubling.
If non-compliance is a matter of criminal behavior – such as destroying
documents, damaging them or using them for illegal purposes – then there
should be legal consequences. But if an official fails in some aspect of
his response to a request in a manner that reflects bureaucratic culture
and the failings of his agency, then it is the agency that should be punished,
not the individual.
This is a complicated issue that probably requires a solution tailored
uniquely to each country’s legal structure. But looking at practice in
the United States for the purpose of comparison, the Federal Food and Drug
Administration handles from 75,000 to 105,000 requests every year.
It is difficult to conceive of punishing individual officials of the FDA
every time the agency’s response to a request takes longer than twenty
days to complete. There may be a more appropriate, bureaucratic
solution to the problem than targeting non-complying officials. If an agency
repeatedly fails to meet the requirements of the law, for example, then
funds could be transferred directly from the budgets of either the director’s
office or the office of public relations to the office in charge
of responding to requests for information. The amount of funds transferred
would be calculated according to what was deemed necessary for putting
the information office back in compliance with the statute.
-- Private Information
There is no privacy law per se in the Mexican legal code. The
Fox and the Grupo Oaxaca initiatives both acknowledge the lack of legal
protections for a citizen’s privacy. Both include clauses designed to protect
personal information from inappropriate or illegal disclosure, as well
as clauses granting individuals the right to obtain their personal files
from the government. At some point, however, the Mexican Congress and the
executive branch should consider drafting a law specifically intended to
guarantee privacy.
Conclusion
Despite these open questions, both proposals before the Mexican Congress
look good. They oblige the administration to make all basic government
documents available without requiring a formal request from the public;
they contain a presumption that government information should be open unless
specific harm may result from disclosure; they both establish an independent
body to which a citizen may appeal before having to go to the courts; they
then grant citizens the opportunity to turn to the judiciary for redress;
and both proposals require the government to preserve and maintain information
that is withheld rather than granting the government the right to destroy
it.
The National Security Archive will continue to monitor the progress
of the public access law in Mexico, and we will update our report as necessary.
Watch this space!
[The author would like to thank Morton Halperin, director of the
Washington office of the Open Society Institute, Kate Martin, director
of the Center for National Security Studies and general counsel to the
National Security Archive, and Ernesto Villanueva, coordinator of the Iberoamerican
Center of the Right to Information and professor of Media Law at the Iberoamerican
University, for their advice and support in analyzing Mexico’s public access
initiatives.]