Author: Natalia Varazi
On September 28, 2016 the world celebrated International Right to Know Day. This celebration was of special importance since exactly five years ago, on September 28, 2011, the Global Right to Information Rating (RTI) was founded. The aforementioned Rating is a comparative assessment of national legal frameworks for the right of information. The number of countries included in the Rating increases annually and as of today national legal frameworks of 112 countries are assessed by the RTI Rating.
It is noteworthy that since the day it was launched, Serbia was an unquestioned leader of the Global Right to Information Rating. However, in accordance with the updated Rating, Serbia scored 135 points and moved to the second place. As for the first place, Mexico’s newly updated General Act of Transparency and Access to Public Information scored an impressive 136 points out of a possible total of 150 and became the leader of the Rating.
General Act of Transparency and Access to Public Information entered into force on May 5, 2015. The initial version of the aforementioned Act was adopted by the Congress of Mexico in April 2002. It should be noted that in order to monitor the implementation of the Law, a subsidiary body – Federal Institute for Access to Public Information and Data Protection (IFAI) – was founded. However, the mentioned Institute was reorganized and now it is known as the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI).
Proactive Disclosure of Public Information
Mexico’s General Act of Transparency and Access to Public Information specifies in greater detail the information that shall be considered as public. Namely, in compliance with Article 7 of the aforementioned Act, the subjects compelled by the Law (the Federal Executive Branch, the Federal Public Administration, the Office of the Attorney General of the Republic, the Federal Legislative Branch, the Permanent Commission etc.) must ensure proactive disclosure of information related to the powers of each administrative unit, the monthly remuneration received for each position, system of compensation, information concerning the budget assigned to each agency, as well as reports about its disbursement, information on the results of the audit, information on the signed contracts, as well as on the goals and procedures of the agencies.
According to the same Article, the subjects compelled by the Law must put at the public’s disposition information concerning their electronic addresses. This will simplify the procedure related to submission of the electronic applications.
In Article 7 of the Act of Transparency and Access to Public Information special attention shall be paid to the directory of public servants. The aforementioned directory shall include all the public servants, from the level of the head of the department or his equivalent and below.
Article 8 of the given Act defines the information that shall be made publicly available by the Judicial Branch of the country. More precisely, in compliance with the given Article, the Judicial Branch of the Federation must make public any sentence that produced ruling or that was executed. However, the aforementioned Article envisages an exception – the interested parties may object to the publication of their personal information.
Remedies to Excess Public Information
It is noteworthy that in accordance with Article 9 of the Act of Transparency and Access to Public Information, the subjects compelled by the Law (the Federal Executive Branch, the Federal Public Administration, the Office of the Attorney General of the Republic, the Federal Legislative Branch, the Permanent Commission etc.) shall simplify access to the public information by remote and local electronic means. Namely, the subjects compelled by the Law are obliged to place computer equipment at the disposal of interested persons so that they may obtain information directly or by printing it out.
Furthermore, for the purposes of the given Law, in order to ensure online access to the public information, National Transparency Online Platform (http://www.plataformadetransparencia.org.mx) was launched. By means of the mentioned platform, any interested person may view the governmental information or request the information, which is not available on the webpage.
Classified and Confidential Information
In accordance with Article 13 of the given Law, information is categorized as classified if its disclosure may compromise national and public security or national defense and impair ongoing negotiations or international relations. Information which other states or international organisms gave as confidential to the Mexican State, as well as the information that may harm the country’s financial stability shall also be categorized as classified. Information categorized as classified may retain this categorization for a period up to 12 years.
As for the confidential information, in compliance with the Law, it is the personal information that requires an individual’s consent before being disclosed.
It should be noted that in accordance with the Act of Transparency and Access to Public Information, information may not be classified when the investigation of grave violations of fundamental right or crimes against humanity is at stake.
Furthermore, Article 14 contains the following exception – when the causes that gave rise to the classification of the information no longer exist, the mentioned information may be made public.
It is also noteworthy that in terms of definition of classified and confidential information, Mexico’s Act of Transparency and Access to Public Information was given 4 of 4 points by the RTI Rating .
Protection of Personal Data
Personal data is regulated by Article 20 of the Act of Transparency and Access to Public Information. In accordance with the aforementioned Article, in order to protect personal data, the subjects compelled by the Law shall adopt appropriate procedures for receiving and responding to requests for information, as well as to train public servants.
Furthermore, after processing the personal data, public servants are required to provide the individual with documentation stating for what purposes and how the aforementioned information shall be used.
Personal data may be disclosed/processed with the prior written consent of the individual. Moreover, Article 22 of the given Law defines cases, when the personal data may be disclosed without a prior written consent of the individual. Namely – information used for medical purposes, for statistical, scientific reasons, when it is impossible to associate the private individual with the information that refers to him, as well as the information that is transferred between the subjects compelled by the Law (State institutions, agencies etc.) do not require the prior written consent.
According to Article 27 of the Law, interested person that was faced with a refusal to deliver or correct personal information, may lodge the appeal. The right to appeal also applies to incomplete or delayed information.
Providing Access to Information and Supervisory Body
The given Law clearly sets out establishment and functions of entities that shall control processing and usage of information used by state institutions. In compliance with Article 28 of the Act, for the aforementioned purposes, the heads of each of the agencies and entities shall form a liaison section and an information committee. The liaison section is entitled to collect and disclose the information, as well as facilitate its periodic updating by the administrative units, receive and process requests for access to information, help individuals to prepare requests and, when necessary, direct them to the agencies or entities that may have the requested information. Furthermore, the liaison section is entitled to keep a record of requests for access to information.
The liaison section is closely related to the information committee. Moreover, it gives recommendations to the information committee on the internal procedures that will significantly simplify the functioning of the committee. Additionally, by means of the liaison section, the information committee defines whereabouts of the documents that include requested information.
As for the information committee, the list of its functions is given in Article 29 of the given Act, namely – to coordinate and supervise the actions related to providing the information of each agency or entity, confirm, modify or revoke the classification of information made by the administrative units of the agency or entity, develop and periodically update a program to facilitate access to information from the agency or entity.
As for the members of the committee, it is composed of public servant designated by the head of the agency or entity, the head of the liaison section, as well as of the head of the internal oversight body of each agency or entity.
Furthermore, the Act defines functions and responsibilities of the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI). In accordance with Article 33 of the given Act, “the National Institute of Transparency, Access to Information and Protection of Personal Date (INAI) is a body of the Federal Public Administration which is independent in its operations, budget and decision-making and charged with promoting and publicizing the exercise of the right of access to information, ruling on the denial of requests for access to information and protecting personal information held by the agencies and entities.” The Institute is comprised of up to five members of the Permanent Federal Commission. When discussing the election of the members of the Institute, it is noteworthy that the civil society plays a major part in choosing the candidates for this position. Through the consultations with the civil society, the executive branch of the Government of Mexico chooses candidates and presents them to Senate – one of the legislative branches of the Government of Mexico. It is noteworthy that public involvement in the selecting process of the candidates was scored with 2 out of 2 points by the Global Right to Information Rating (RTI). Furthermore, as it was stated in the Rating, the selecting process is in full compliance with the international standards.
When discussing the functions of the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI), it should be noted that one of the main functions of the mentioned Institute is to support implementation of the Act of Transparency and Access to Public Information. The Institute was founded to control activities carried out by the Committees of Federal Executive Bodies.
As for the other important functions of the Institute, INAI accepts and settles appeals brought by individuals requesting information, assists the General Archive of the Nation in developing and applying criteria for cataloging and preserving documents, as well as in organizing the archives of the agencies and entities. Furthermore, the Institute monitors and guides information disposal related activities of the agencies, interprets the Act of Transparency and Access to Public Information, establishes guidelines and general policies for handling, maintaining, securing and protecting personal information held by the agencies and entities, alerts the internal oversight body of each agency and entity of suspected infractions of the Act and its regulations, prepares a guide that describes, in a clear and simple manner, the procedures for access to information held by the agencies and entities.
In terms of freedom and access to information it is especially noteworthy that based on the data given to it by the agencies and entities the Institute provides an annual public report to the Congress of Mexico. The annual public report of the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI) includes the number of requests for access to information presented to each agency and entity, agency response times, the number and outcome of matters attended to by the Institute, the status of denunciations brought before the internal oversight bodies, any difficulties encountered in carrying out the Law etc.
Moreover, in accordance with the given Act, when lodging an appeal, a person has an option to lodge an appeal within the liaison section of the agency or entity where his request was initially accepted or directly within the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI). In the event that the appeal of the person is lodged within a liaison section of a particular agency or entity, the latter is obliged to send the aforementioned appeal to INAI.
The Responsibilities of Public Servants
Article 63 of the Act of Transparency and Access to Public Information sets forth the cases when public servants are imposed with administrative responsibility. To be more precise, the administrative responsibility is imposed when public servants disclose, use or destroy information in their custody, intentionally deny information that is not categorized as classified or confidential and contrary, delver information that is considered classified or confidential. Public servants are also held liable when they intentionally provide incomplete information in response to a request to access to information.
Article 63 of the Act of Transparency and Access to Public Information makes a reference to the Law of Mexico on Administrative Responsibility of Public Servants. In the mentioned Law types of administrative responsibilities are given. Namely, in compliance with Article 201 of the Law on Administrative Responsibility of Public Servants, state agency may impose its public servants with the following sanctions – public rebuke or monetary penalty. Monetary penalty shall be proportional to the severity of the misconduct. Furthermore, the Law specifies that monetary penalty shall not be paid with public funds. It is noteworthy that in a number of cases, while imposing a monetary penalty, financial position of the public servant shall be taken into consideration.
Furthermore, in the Global Right to Information Rating (RTI) the analysis of Mexico’s access to information legislation is given. In the mentioned analysis it is stated that the public servants responsibility is also provided by the Federal Criminal Code of Mexico. According to Article 219 of the aforementioned Code, the public servant who themselves, or through an intermediary, using physical or moral violence, inhibit or intimidates anyone to avoid it or a third denounce, to make a complaint or provide information on the alleged commission of conduct sanctioned by the Criminal law will be imposed two years to nine years in prison, monetary penalty and disqualification for two years to nine years to perform another job, position or commission.
The updated version of the Mexico’s Act of Transparency and Access to Public Information broadens the list of individuals responsible for public information accessibility and increases the amounts of the information that shall be posted on webpages and on specially created consultation platform. Moreover, in accordance with the updated Act, electronic platforms play the main role in information accessibility. They simplify storing, delivering and sorting process of the information and this is fully in line with the Open Government Partnership (OGP) principles.
Furthermore, the abovementioned Act, compared to its initial version, more precisely defines classified and confidential information and increases protection mechanisms for request of information. Moreover, in order to avoid violations related to usage of public information, the Act broadens the sanction types. The Act also provides independence and effectivity of the activities carried out by the freedom of information supervisory body.
It should also be noted that in accordance with the RTI Rating Georgia’s national legal frameworks for the right of information scored 97 points and is on 35th place among 112 countries.
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