Case Summary and Outcome

The National Institute for Transparency, Access to Information and Personal Data Protection of Mexico (Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales, or INAI) accepted the appeal from the petitioner, who requested scientific information that supported specific comments made by the head of the Undersecretary of Prevention and Health Promotion (Subsecretaría de Prevención y Promoción de la Salud). The public servant had said that using face masks was not a very effective means to prevent Covid-19, unless they were made of thick and dense materials—such as the N95 face masks. The Secretary of Health (Secretaría de Salud) provided links to websites with information regarding face masks and Covid-19. The INAI held that the information was insufficient. It instructed the Secretary of Health to conduct a proper and exhaustive search, involving every competent and relevant administrative unit, and provide the requested information within 10 days.

Facts

On December 10, 2020, the petitioner requested from the Secretary of Health a copy of the documents, scientific papers, or studies that supported the statements made by the head of the Undersecretary of Prevention and Health Promotion (Subsecretaría de Prevención y Promoción de la Salud), Mr. Hugo López-Gatell Ramírez, who publicly mentioned in a press conference that using face masks was not a very effective means to protect people against Covid-19, unless they were made of thick and dense materials—such as the N95 face masks. The request relied on article 6 of the Constitution of Mexico and on the Federal Transparency and Access to Public Governmental Information Law (RTI Law).

On January 11, 2021, the Secretary of Health notified the petitioner that their request had been forwarded to the Undersecretary of Prevention and Health Promotion and the Epidemiology General Directorate (Dirección General de Epidemiología), and provided links to websites with public information concerning face masks. Additionally, it mentioned that the opinions and considerations were based on international recommendations issued mainly by the World Health Organization (WHO).

On January 11, 2021, the petitioner lodged an appeal before the INAI, arguing that the requested information had not been delivered. On January 18, 2021, Commissioner Adrián Alcalá Méndez declared the case admissible. 

Decision Overview

Commissioner Adrián Alcalá Méndez delivered the decision for the INAI, which was adopted unanimously. The main issue before the INAI was whether the Secretary of Health conducted an exhaustive and reasonable search for the requested information.  

The Secretary of Health asserted that everything Mr. Hugo López-Gatell Ramírez said was backed by recommendations from the WHO and offered internet links with a bibliography regarding face masks and Covid-19. The petitioner considered that the answer provided was insufficient to respond to their request. 

The INAI recognized that the public official stated that “there is no useful scientific evidence that confirms that face masks can interfere with the virus, unless they are made of a thick and dense material, such as the N95 face masks”. Thus, the INAI considered that the Secretary of Health had the obligation to provide the requested scientific information that supported those statements and that the web links offered did not sustain that claim.

The INAI further relied on article 133 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law), which requires every petition be forwarded to all competent administrative units that might have pertinent information, so they can conduct an exhaustive and reasonable search to answer properly. In the present case, the INAI explained that the Secretary of Health only forwarded the request to the Undersecretary of Prevention and Health Promotion and to the Epidemiology General Directorate, but not to the Health Information General Directorate (Dirección General de Información en Salud). The INAI considered that the General Direction of Health Information was responsible for managing the National Health Information System, analyzing and collecting the information produced by the Secretary of Health, and verifying that the information is clear and precise. Hence, the INAI argued, this administrative unit was also competent and could have had pertinent information to fulfill the access to information request made by the plaintiff.

Consequently, the INAI ruled that the Secretary of Health failed to comply with article 133 of the RTI Law because it did not forward the request to every competent administrative unit that could provide relevant information regarding the request. The INAI instructed the Secretary of Health to conduct a proper and exhaustive search, involving every competent and relevant administrative unit (in particular, the Health Information General Directorate), and to provide the requested information to the petitioner in no more than 10 days.