Access to Public Information, Other (see tags), Political Expression
Gomes Lund v. Brazil
Closed Expands Expression
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The Information Commission of Mexico (Instituto General de Acceso a la Informacion Publica, or IFAI) held that the public prosecutor must release a preliminary investigation related to the forced disappearance of Rosendo Radilla Pacheco under the final provision of Article 14 of the RTI Law, which mandates disclosure of otherwise reserved documents when they relate to grave violations of fundamental rights and crimes against humanity.
This case analysis was contributed by Right2Info.org.
In October 2008, the Petitioner family of Rosendo Radilla Pacheco requested from the public prosecutor (Procuraduria General de la Republica, or PGR) a certified copy of the entire file of preliminary investigation No. SIEDF/CGI/454/2007, relating to Rosendo Radilla Pacheco’s forced disappearance during the Mexican Dirty War period.
The PGR rejected disclosure under Article 48 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law), which provides that an authority that has furnished information to a Petitioner is under no obligation to furnish it again. According to the PGR, substantially the same information request had already been dealt with by the PGR and therefore it was under no obligation to provide any information again. On that previous opportunity, however, the PGR had not actually furnished any of the information sought by Petitioner in connection with preliminary investigation No. SIEDF/CGI/454/2007, but rather it had rejected disclosure on the basis of Articles 13(V), 14(III) and 18(II) of the RTI Law and 16 of the Federal Code of Criminal Procedure (FCCP).
Articles 14(I) and (III) of the RTI Law label “reserved information” as that which is so denominated by law and expressly includes preliminary investigations in that category. In turn, FCCP Article 16 provides that, once the Court took up criminal action, only the parties to the case can have access to the preliminary investigations produced in the proceedings and public authorities that disclose any such information are subject to administrative or criminal liability. Article 13(V) allows authorities to classify information as “reserved” when its disclosure could endanger law enforcement activities or the prevention and prosecution of crimes. Article 18(II) protects as confidential and reserved, personal data which can only be distributed subject to the consent of the data owner.
Petitioner appealed, arguing that PGR’s invocation of Article 48 of the RTI Law was fraudulent and misleading, to the extent that it had never really furnished any information whatsoever in relation to Rosendo Radilla Pacheco’s file when this information was initially requested (rather the request had been dismissed alleging a reservation).
On appeal, the PGR reiterated the arguments it relied on to reject the Petitioner’s request.
IFAI initially conducted an extensive review of all relevant materials publicly available on the events of Rosendo Radilla Pacheco’s presumed forced disappearance, which eventually led to a case being brought against Mexico before the Inter-American Court of Human Rights. Upon such a review, IFAI determined the underlying events related to grave violations of fundamental rights and possibly crimes against humanity.
IFAI sided with the Petitioner on the applicability of Article 48 of the RTI law and held this article was wrongfully invoked by the PGR to deny disclosure. After the Petitioner formulated its initial request for information, rather than releasing the file, PGR withheld the information as reserved. Therefore the objective conditions of Article 48 (having released information) were not met.
IFAI noted that Articles 13(V) and 14(III) of the RTI Law clearly created a shield that protects ongoing preliminary investigations from public disclosure and that such protection survives even when the preliminary investigations have concluded by virtue of FCCP Article 16. However, IFAI also pointed to RTI Law Article 14’s final paragraph, which provides that that no protection can be invoked to refuse disclosure when the investigation relates to “grave violations of fundamental rights or crimes against humanity”. According to IFAI, this provision defeats any reserve created by any of the other provisions of the RTI Law and of the FCCP.
Therefore, because the preliminary investigations sought by the Petitioner clearly entailed violations of fundamental human rights and possibly crimes against humanity, IFAI ruled that they were not protected and that there existed an overriding public interest in their disclosure. The PGR was granted 10 business days to release the file.
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