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By Kate Doyle <kadoyle@gwu.edu>
Senior Analyst and director of the Mexico Project, National Security Archive

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. 


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.]

Document 1
Ley Federal de Transparencia y Acceso a la Informacion Publica Gubernamental, 30 de Abril 2002 

Document 2
Grupo Oaxaca Freedom of Information Proposal, October 11, 2001 (original Spanish text)
English translation of this document

Document 3
Fox Administration Freedom of Information Proposal, December 1, 2001 (original Spanish text)
English translation of this document
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