Case Summary and Outcome

The Mexican Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI) held that the public prosecutor must release information on the internal and preliminary investigations regarding probable crimes of genocide committed by government forces against participants in student demonstrations, notwithstanding assertions by the public prosecutor that the information does not exist, as it should be present in the government archives.

This analysis was contributed by Right2Info.org.

Facts

In August 2004, the Petitioner requested from the public prosecutor (Procuraduria General de la Republica, or PGR) a “copy of the record related to the preliminary investigations of case PGR/FEMOSPP/011/2002 initiated by the Special Prosecutor for Social & Political Movements of the Past (FEMOSPP), regarding crimes of genocide allegedly committed against various people.” The petition was related to the killing of approximately 30 demonstrators on June 10, 1971.

The Petitioner invoked the last paragraph of Article 14 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law), which prescribes that prima facie reserved information such as preliminary investigations and judicial and administrative case files may not be treated as classified when grave violations of fundamental rights or crimes against humanity are at issue.

The PGR did not contest that the matter involved an accusation of genocide and agreed that the exception to privileged information in Article 14 was applicable. Instead, the PGR alleged a material impossibility to comply with Petitioner’s request because, it said, it had handed over all original and copies of the investigation to the Second District Court for Federal Criminal Processes after its role in the preliminary investigation ended.

The Petitioner appealed to IFAI, arguing that under Article 17 of the Federal Code of Criminal Procedure (FCCP), the PGR was obligated to keep copies of such documents. The PGR reiterated its initial response.

Decision Overview

IFAI found that the information requested related to the events of June 10, 1971 and the probable crimes of genocide committed that day. IFAI did not assess whether the particular events amounted to genocide, but deferred to the opinion of the competent courts. It also relied on the fact that both the Petitioner and the PGR agreed that the information requested related to the crime of genocide. Thus, it held that the exception from reservation in the last paragraph of Article 14 of the RTI Law applied and that the information was not protected from disclosure.

IFAI finally ruled in favor of the Petitioner and found that, under FCCP Article 17, the PGR had a legal obligation to keep a copy of the investigation it initiated in its archives. IFAI understood this obligation applied to “any document that they generate, obtain, transform, or conserve in any way or capacity”. The fact that information was initially collected in the context of a criminal proceeding and subsequently submitted to court was irrelevant.

IFAI ordered the PGR to search for the records of the investigation that should have existed in its archives and release a copy to Petitioner within 10 business days. IFAI ruled that the documents should be redacted to the extent they contained the personal data of individuals.