Case Summary and Outcome

The Inter-American Court of Human Rights held that Mexico did not violate the right of access to information under Article 13 of the American Convention by denying attorney B.J. effective access to the criminal case file concerning the death of Ms. Ernestina Ascencio Rosario, who, before her death, alleged that she had been sexually assaulted by soldiers. Following B.J.’s 2009 access-to-information request, the Veracruz Prosecutor’s Office provided only a limited public version of the file. The Veracruz Institute for Access to Information likewise upheld the confidential status of the remaining information, citing potential risks to the integrity of those involved, public order considerations, and the need to protect the victim’s privacy. Before the Court, the Inter-American Commission on Human Rights argued that Mexico failed to provide sufficient reasons to justify keeping the case file confidential. Mexico, for its part, contended that the restrictions on access were lawful, necessary, and proportionate, and that in 2022 it delivered a more extensive version of the criminal file in which only the personal data of those involved were redacted. The Court reaffirmed the principle of maximum disclosure in access-to-information matters and the duty to provide reasons for any denial of such requests. It also specified the legal standards States must meet when assessing requests for access to judicial information related to sexual violence, emphasizing that confidentiality cannot be used to evade investigative obligations in cases involving human rights violations. Nevertheless, the Court concluded that it lacked sufficient elements to determine whether Mexico’s conduct violated Article 13 because neither party submitted the complete file that had been requested. Accordingly, the Court declined to hold Mexico internationally responsible for the alleged violation of the right of access to information, while consolidating relevant standards for future cases.

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Facts

Ms. Ernestina Ascencio Rosario was a 73-year-old Indigenous Nahuatl woman living in the Sierra de Zongolica, Veracruz, Mexico. In February 2007, the Mexican Army established an operational base in her community as part of the national security strategy against drug trafficking.

On February 25, 2007, Ms. Ascencio was found by her daughter in critical condition near the military camp, with her skirt raised. Before her death on February 26, Ms. Ascencio stated that she “had been assaulted and raped by soldiers.” [para. 87]

The initial investigations by the Office of the Attorney General of Veracruz and the autopsies confirmed injuries consistent with sexual violence and the presence of male genetic material. However, following statements by the then President of the Republic and the National Human Rights Commission suggesting that she had died of natural causes, the investigation was prematurely closed in May 2007.

This context of alleged irregularities and lack of transparency prompted the interest of Ms. B.J., an attorney, who sought access to the official information in the case due to her indignation over the impunity surrounding Ms. Ascencio’s death.

On February 9, 2009, Ms. B.J. requested from the Veracruz Office of the Attorney General access to information regarding various pieces of evidence and facts in the case, including copies of the criminal investigation file, expert and forensic reports, medical and death certificates, and the report on the exhumation of Ms. Ascencio’s body. However, on February 26, 2009, the Attorney General’s Office provided only an extremely limited public version and denied access to the remaining records, arguing “that, since these are matters of a criminal nature, the public character does not extend to the other proceedings that make up the file.” [para. 134]

In response, on March 18, 2009, Ms. B.J. filed a request for review on the ground that the Attorney General’s Office had not explained why it rejected her request for access to information concerning the case of Ms. Ascencio’s death.

On May 27, 2009, the Veracruz Institute for Access to Information upheld the decision of the Veracruz Attorney General’s Office. The Institute held that the information was “reserved,” reasoning that access could generate risks of reprisals against those who had taken part in the proceedings and that disclosure could cause “disturbances to public order.” [para. 137]

On June 18, 2009, Ms. B.J. filed an amparo action challenging the decision denying her access to the requested information, “alleging the violation of her rights to legality, access to information, and the truth.” [para. 139]

On November 11, 2009, the First District Court of the State of Veracruz granted the amparo due to the lack of legal grounds and reasoning for the denial. In compliance with that judgment, on February 8, 2010, the Veracruz Institute for Access to Information issued a new decision reiterating the denial of access to Ms. B.J. and holding that the information consisted of reserved and confidential data. In addition, the Institute argued that making the expert reports public could expose those involved in the case to “stigmatization” and “physical attacks” by individuals dissatisfied with the closure of the proceedings concerning Ms. Ascencio’s death. [para. 141] The Institute added that the reservation protected the privacy of the victim and her relatives, as well as public order, because Ms. Ascencio’s death “had been the subject of intense social controversy.” [para. 141]

Ms. B.J. filed a complaint for non-compliance with the judgment. On March 2, 2011, the First District Court of the State of Veracruz dismissed Ms. B.J.’s complaint, finding that the Veracruz Institute for Access to Information had adequately reasoned its new decision denying access to the information. Ms. B.J. appealed that judgment. However, on July 7, 2011, the First Collegiate Court in Administrative Matters dismissed Ms. B.J.’s appeal and upheld the judgment.

Years later, on August 15, 2022, the Veracruz Institute for Access to Information decided to provide Ms. B.J. with a broader public version of the file relating to Ms. Ascencio’s death, although with large amounts of personal data deleted or censored.

On January 11, 2012, the organization “Abogadas y Abogados para la Justicia y los Derechos Humanos” (Lawyers for Justice and Human Rights) filed a petition against Mexico before the Inter-American Commission on Human Rights alleging a violation of the right to freedom of expression under Article 13 of the American Convention on Human Rights, in its dimension of the right of access to information, among other rights, in connection with the events affecting Ms. Ascencio, her relatives, and Ms. B.J.

On June 11, 2013, the Inter-American Commission on Human Rights submitted the case to the Inter-American Court of Human Rights, alleging, among other points, Mexico’s international responsibility for violating B.J.’s right of access to information by preventing her from effectively accessing the file of an investigation of high public interest involving possible serious human rights violations.

The Commission argued that Mexico violated Ms. B.J.’s and society’s right of access to information because, although it invoked legitimate aims to restrict certain data, it did not provide specific reasons for refusing to disclose parts of the file or for censoring certain information. It added that information was withheld beyond what was necessary to protect the personal data of those involved, and that restricting access to prevent criticism of experts or to protect officials’ honor disregarded the heightened duty of tolerance to public scrutiny applicable to such public figures.

On December 20, 2023, Mexico argued that the restrictions were lawful, necessary, and proportionate to protect the personal data of the victim and the officials involved in the proceedings. It maintained that the Veracruz Institute for Access to Information appropriately balanced the risks and that, in 2022, it provided a version in which only personal data were suppressed. It further argued that the fact that the experts were public officials did not render their data public, and that no alternative measures existed that would have been less restrictive of the right of access to information.

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Decision Overview

Due to the complexity of the case, the Inter-American Court of Human Rights examined alleged violations of several rights protected under the American Convention on Human Rights. This analysis focuses only on the freedom of expression issues. The central question before the Inter-American Court of Human Rights was whether the State’s response to Ms. B.J.’s request for access to information —through which she sought key materials from the criminal investigation into the death of Ms. Ernestina Ascencio— was compatible with the right to freedom of expression, in its dimension of access to information, as protected under Article 13 of the American Convention on Human Rights.

The Inter-American Commission on Human Rights argued that the State violated Ms. B.J.’s right of access to information, as well as the Mexican public’s right to know, because —even if the State invoked aims compatible with the Convention to keep information related to Ms. Ascencio’s death confidential— it failed to provide “specific reasons to justify the censorship of certain information or the failure to disclose certain parts of the file.” [para. 321] The Commission further alleged that the impediment to accessing the criminal investigation in full went beyond the protection of personal data, because it concealed information unrelated to the identity or privacy of the persons involved. In addition, it argued that restricting access to information in order to avoid potential challenges to experts’ work or to protect public officials’ honor and reputation failed to take into account the inter-American standard under which State action —and public officials in particular— must tolerate a higher degree of scrutiny and public criticism.

For its part, the Mexican State argued that the restrictions adopted in response to Ms. B.J.’s request were “lawful, proportionate, and necessary,” grounded in the protection of the victim’s personal data and that of the officials involved. [para. 326] It added that the Veracruz Institute for Access to Information carried out an appropriate balancing exercise in light of the potential harms of disclosing confidential information and that, although in 2009 and 2010 access to the criminal file had been largely redacted or censored, in 2022 Ms. B.J. received a version in which “only personal data were suppressed.” [para. 326] The State also argued that the fact that experts and other personnel involved in the criminal investigation were public officials did not justify disclosing their data, because such information was not of public interest. It further emphasized that “there were no alternative actions that could have been adopted to protect the individual rights of the persons related to the case.” [para. 326]

As a preliminary matter, the Court reiterated that Article 13 of the Convention protects every person’s right to “request access to information under the control of the State,” subject only to the limitations permitted under the Convention. [para. 328] Likewise, citing the Court’s own case law in Claude Reyes v. Chile, it emphasized that “State action must be governed by the principles of publicity and transparency in public administration, which makes it possible for persons under its jurisdiction to exercise democratic oversight of State conduct.” [para. 328]

The Court further underscored the existence of a “transparency obligation,” which “imposes the duty to supply the information necessary for individuals to exercise other rights” in a manner that is “complete, comprehensible,” and “in accessible language,” so that it can be understood by all sectors of the population. [para. 329]

With respect to limitations on the right of access to information, the Court reiterated that access is governed by the principle of maximum disclosure, with a presumption that all information under State control should be accessible. It further explained that the burden of justifying any refusal to provide information rests with the authority from which the information is requested. Moreover, it held that, where denial is warranted, the State must issue a duly reasoned decision that clearly sets out the grounds and legal provisions supporting the refusal.

The Court also held that restrictions on access to information must satisfy the three-part test: (i) they must be established by law, (ii) they must pursue a legitimate aim under the Convention, and (iii) they must be necessary and proportionate in a democratic society, “interfering as little as possible with the effective exercise of the right.” [para. 331]

The Court noted that these access-to-information standards have been developed largely through the Inter-American Model Law on Access to Information 2.0, which allows public information to be denied only when it is classified as confidential or reserved. The Court stated that confidential information is information whose disclosure is temporarily excluded due to a clear and likely risk of harm to public or private interests.

The Court further held that, under the Model Law, such classification must be carried out by authorized officials, on a case-by-case basis. It added that, to declare information confidential, authorities may invoke reasons linked to privacy, honor and image, and the protection of personal data whose disclosure requires consent. The Court also recalled that public officials’ privacy is more limited the greater their responsibility, and that, in case of conflict, the public interest must prevail. In such cases, the Court specified that a “public interest test” must be applied, assessing: (i) suitability (whether the measure serves a constitutionally valid aim), (ii) necessity (whether no less restrictive alternative exists), and (iii) proportionality (whether the benefit of restricting disclosure outweighs the harm caused by limiting it). [para. 333]

In addition, the Court stressed that, to justify the confidentiality of the information, the authority must apply a “harm test”: it must demonstrate a real, verifiable, and identifiable risk of significant harm (and not a hypothetical one) to a legally protected interest. The Court added that it must also be shown that no less restrictive alternative exists for the right of access to information, and that the risk outweighs the public interest in disclosure. It further held that the measure must meet proportionality requirements, without affecting the essence of the right of access to information. [para. 334]

With specific regard to judicial information linked to sexual violence, the Court emphasized that, under the Inter-American Model Law, exceptions to access to information based on classification as “confidential information” do not apply where the matter concerns serious human rights violations or crimes against humanity. [para. 335] In such circumstances, the Court recalled that the authority must nevertheless protect victims’ privacy —for example, by blurring sensitive information or using an analogous procedure. Even so, the Court underlined that information related to human rights violations carries “a high presumption of disclosure” and “in no case” may it be classified as confidential by invoking “national security reasons.” [para. 335]

Likewise, citing the report “The Right of Access to Information in the Inter-American Legal Framework” by the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, the Court reiterated that the right of access to information allows for limits aimed at protecting the rights of others. In particular, the Court highlighted as legitimate limits “the protection of personal data.” Accordingly, the Court specified that any restriction must, in addition, pursue a legitimate aim, constitute the least restrictive measure on the right of access to information, and be proportionate to the interest that justifies it.

In this context, the Court held that, although access to information relating to serious human rights violations is central in a democratic society, the principle of maximum disclosure must be limited to protect victims’ sensitive information. The Court stressed that “such limitation becomes imperative when the requested information is judicial in nature and relates to acts of sexual violence, as well as other acts of a similar nature that could entail revictimization or unnecessary stigmatization of a person.” [para. 337]

Accordingly, the Court held that States should not disclose this type of information without a prior rigorous assessment that balances the protection of victims against access to information and the right to the truth. It noted that the “harm test” and the “public interest test” are useful tools for such balancing. [para. 337]

The Court specified that, although the decision must be made on a case-by-case basis through State balancing, there is a core set of highly sensitive information about persons who are or could be victims of sexual violence that, as a rule, must remain confidential: “(i) their name, (ii) address, (iii) identity document; (iv) image; (v) details of the act of violence that could lead to the victim’s identification or expose them to stigmatization; (vi) forensic evidence revealing personal data, or (vi) statements by the victim or witnesses whose disclosure could expose them to a new violation of their rights.” [para. 339]

The Court further clarified that “the confidentiality of such information must be adopted as a measure to protect victims’ rights and not as a mechanism for the State to evade its obligations to investigate and prosecute, especially where there are lines of investigation pointing to State participation in the acts of sexual violence.” [para. 340]

In addition, the Court held that any decision to grant or deny access to information in this type of case must be duly reasoned, indicating the applicable reasons and legal provisions, so that the requesting person clearly understands the scope of access or the grounds for the restriction. It further emphasized that, where possible, the State must provide a partial version of the document, suppressing only the confidential information and preserving the principle of maximum disclosure. The Court also clarified that redactions cannot be so extensive that they prevent understanding of the material provided and, in practice, hinder the right to the truth.

Applying these standards to the case, the Court focused its analysis on Ms. B.J.’s situation and stated that the dispute consisted in determining whether the delivery —years later— of the criminal investigation file with censored and redacted data violated her right of access to information, or whether the State acted in accordance with personal data protection standards.

The Court noted that the initial decisions by the Veracruz authorities and the Veracruz Institute for Access to Information did not explain in detail why they granted access only to a limited public version of the criminal file. However, the Court recognized that, following a judicial order by the First District Court of the State of Veracruz, the Veracruz Institute for Access to Information issued a new decision (of February 8, 2010) that did set out the legal basis for the denial and stated that its purpose was to protect the rights of the victim (Ms. Ascencio) and her relatives, as well as to address risks to the life and integrity of the persons involved and the public officials who intervened in the case.

The Court then considered it relevant that, in practice, an alternative to a total denial was adopted, insofar as a limited public version of the entirety of the requested information had been delivered. On the other hand, the Court also observed that “the remaining documents requested by B.J. contained highly sensitive data, and therefore it considers that the decision adopted by the State is not unreasonable given the gravity of the facts that were the subject of the investigation and the obligations that exist for the State in this area.” [para. 347]

In addition, the Court held that, on August 15, 2022, the Veracruz Institute for Access to Information “decided to grant Ms. B.J. a complete version of the criminal investigation in which certain data were censored [redacted],” including “surnames, names, ages, addresses, signatures, marital status, date of death, occupation, kinship, necropsy photographs, and photos.” [para. 348] In the Court’s view, the Institute’s most recent decision “complies with the standards previously defined.” [para. 348]

Nevertheless, the Court emphasized that, despite having requested both parties to submit the latest file issued by the Veracruz Institute for Access to Information, neither provided that documentation. As a result, the Court stated that it lacked “sufficient elements” to assess whether the specific redactions complied with the inter-American legal standards on access to information.

In that scenario, the Court concluded that “in the specific case, it does not have sufficient elements to establish the State’s responsibility for the violation of the right of access to information, protected under Article 13 of the Convention.” [para. 350]

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