Case Summary and Outcome

On November 10, 2021, Mexico’s National Institute of Transparency, Access to Information, and Personal Data Protection (INAI) ordered the Ministry of Defense to provide an individual with information regarding counter-migration operations on the southern border of the country carried out between 2018 and 2021. The case arose after the Ministry of Defense responded to the plaintiff’s access to information request by stating that after conducting an exhaustive search, it was unable to locate documentary evidence to address the required information. In its decision, the INAI held that the Ministry of Defense had failed to communicate the plaintiff’s request to all the competent administrative units and thus could not allege the non-existence of the information. 

Facts

On August 27, 2021, the plaintiff requested the following information from the Ministry of Defense:

1. How many counter-migration operations had been conducted from 2018 to the date of the request;

2. The number of operations broken down by month, year, and the number of migrants rescued; 

3. In how many of the operations the National Migration Institute participated in; and

4. The number of state agents deployed with the purpose of stopping migration.

On September 28, 2021, the Ministry of Defense reported the non-existence of information regarding questions 1, 2, and 3 of the request and stated that approximately 6,244 soldiers had been deployed at the southern border to provide peripheral security to the personnel of the National Migration Institute for the rescue operations of migrants.

Unsatisfied with the response, the plaintiff filed an appeal for review before the INAI. On October 18, 2021, INAI admitted the appeal.

Decision Overview

The central issue for the INAI to analyze in this case was whether, in accordance with Article 148 of the Federal Law, the Ministry of Defense could allege the non-existence of the information required by the plaintiff in questions 1, 2, and 3. Additionally, the INAI analyzed whether, under Article 148 (V), the Department of Defense had successfully complied with the information solicited in question 4. 

The INAI recalled that the Ministry of Defense argued that after conducting an exhaustive search, it was unable to locate documentary evidence to address the requested information in questions 1, 2, and 3 and declared the non-existence in terms of Criterion 07/17.

The INAI began its analysis by noting that Article 133 of the Federal Law establishes that all Transparency Units must ensure that all requests are forwarded to the authorities that possess the information according to their functions, competence, and responsibilities so that they may conduct a retrieval of the requested information. 

The INAI recognized that while, in the present case, the Ministry of Defense had delivered the request to the General Staff, one of the competent administrative units, it failed to deliver it to the Office of the Secretary-General, which, according to Articles 10 (I) and (II), 17 and 18 (I) and (III) of the Internal Regulations of the Ministry of Defense, the authority in charge of the development of the programs regarding the defense and internal security of the country. 

Correspondingly, the INAI pointed out that Criterion 16/17 establishes that when requests for access to information are submitted without identifying the precise documents that contain the information of interest, the obligated parties must deliver an interpretative response including all the available documentation in its possession that is related to the requested information. 

In the immediate case, the INAI noted that the information on the plaintiff’s request was linked to a statement made by the Ministry of Defense during the press conference on August 27, 2021, in which he stated that the main objective of the arm forces operations taking place in the south of the country was to stop migration. Likewise, the INAI pointed out that an informative note, entitled “Tema Migratorio 130421“, issued by the National Institute of Migration highlighted that 8,715 elements of the Army and the National Guard participated in Migration and Development in the Northern and Southern Border Plan, whose primary purpose was to stem the illegal migration. Likewise, the INAI underscored that through the said note, the National Institute of Migration explained different tasks conducted by the Armed Forces in collaboration with the Institute during 2019 and 2020 on the country’s southern border. 

Consequently, the INAI considered that the non-existence invoked by the Ministry of Defense was inadmissible since it had failed to share the requested information with all the competent administrative units concerning the information solicited by the plaintiff in questions 1, 2, and 3. Therefore, the INAI found that the plaintiff’s claim regarding the non-existence of the information was well-founded since the Ministry did not exhaust the inquiry procedure. 

The INAI then analyzed the plaintiffs claim that the Ministry had failed to respond to question 4 adequately. The INAI explained that according to Criteria 02/176, all administrative acts must comply with the principles of unity and completeness. Regarding the latter, the INAI held that when authorities respond to requests for information, their answers must maintain a logical connection to what is requested and must punctually and thoroughly address each of the questions raised.  

The INAI recalled that in the present case, the Ministry of Defense had responded to the plaintiff’s request by noting it had deployed approximately 6,244 elements to provide peripheral protection to the National Institute of Migration personnel in rescuing migrants on the southern border. Therefore, the INAI considered that the plaintiff’s assertions on this matter were unfounded since the Ministry had regarded the principles of unity and completeness.

Taking into consideration the above, INAI ordered the Ministry of Defense to conduct an exhaustive search in the physical and electronic files of the office of the Secretary-General to locate and provide the plaintiff with the following information: 1. the number of counter-migration agents developed from 2018 to the date of the request, 2. the number of operations broken down by month, year, and migrants rescued, and 3. in how many of them the National Institute of Migration participated.

Furthermore, the INAI pointed out that in light of Articles 141 and 143 of the Federal Law, if, as a result of the search carried out, the Ministry of Defense failed to locate the requested information, it would have to issue a formal statement of non-existence through its Transparency Committee.