Case Summary and Outcome

The Federal Institute for Access to Information and Data Protection (IFAI) held that pursuant to Article 14 of the Mexico’s access to information law, which mandates disclosure of otherwise protected documents when they relate to grave violations of fundamental rights and crimes against humanity, prosecutors must release a 2002 preliminary investigation related to the killing of students and other peaceful protesters by military and paramilitary actors.

The IFAI said that there was no reason why preliminary investigations of criminal matters should not be included within the exception to non-disclosure of ‘reserved documents’ which applied in cases of “grave violations of fundamental rights or crimes against humanity”.  On the contrary, IFAI reasoned that the exception suggested exactly the opposite in the light of principles of transparency and the overriding public interest in asserting human rights violations. Therefore, it said, the preliminary investigations were not protected by secrecy and there was an overriding public interest in disclosure.

This case analysis was contributed by Right2Info.org.

Facts

In December 2009, a petitioner requested from the public prosecutor (Procuraduria General de la Republica, or PGR) a CD copy and public version of a 2002 preliminary investigation (No. PGR/FEMOSPP/002/2002), initiated by the Special Prosecutor for Social & Political Movements of the Past (FEMOSPP), in connection with the killing of students and other peaceful protesters by the Mexican military and paramilitary forces on October 2, 1968 at the Plaza de las Tres Culturas in Tlatelolco.

FEMOSPP’s investigation led, eventually unsuccessfully, to criminal charges being brought against former President Luis Echeverria and a number of public officials in September 2005.

The PGR refused disclosure indicating, firstly, that the request had to be directed to the competent court handling the case, not the PGR; and secondly, that disclosure was precluded under Articles 14(I) and (III) of the Federal Transparency and Access to Public Governmental Information Law (RTI Law) and Article 16 of the Federal Code of Criminal Procedure (FCCP), which allow disclosure of case files and other investigative materials only to the parties involved in the criminal proceedings. PGR asserted that public disclosure would place the PGR in violation of its duty of secrecy.

Petitioner appealed to IFAI relying on the exception embodied in the final paragraph of Article 14 of the RTI Law, which allows for the disclosure of prima facie reserved documents, such as preliminary investigations, when they relate to grave violations of fundamental rights or crimes against humanity.

On appeal, the PGR argued that, since the preliminary investigation had already been handed over to the competent court that dealt with the criminal case, it no longer had a copy in its power. It reiterated its argument that preliminary investigations could only be disclosed to the parties involved in the proceedings under Articles 14(I) and (III) of the RTI Law and FCCP Article 16 and that disclosure to Petitioner would place the PGR in breach of its duty of secrecy.

Decision Overview

The IFAI noted firstly that the PGR’s allegations about material impossibility to comply with Petitioner’s request were inconsistent with other statements it had made during the course of the administrative proceedings, and that surely the very authority that was involved in such investigations kept a copy of them.

Secondly, it addressed the PGR’s defences based on RTI Law and FCCP. Articles 14(I) and (III) of the RTI Law define “reserved information” as that which is prescribed as such by law and expressly includes preliminary investigations. FCCP Article 16 provides that, once the Court undertakes 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. Such information is “reserved” and a public copy of these records can only be released if no criminal charges were actually pressed and once the statute of limitations for the underlying crime or offence has expired.

While IFAI acknowledged that FCCP Article 16 theoretically embodies a legal prohibition on disclosing criminal preliminary investigations under the general umbrella of Article 14 of the RTI Law, this prohibition is superseded by the last paragraph of said article, which provides that no reservation can be invoked to refuse disclosure when the investigation relates to “grave violations of fundamental rights or crimes against humanity” [p.49]. IFAI noted that the last paragraph of Article 14 merely refers to “investigations”, without clarifying their nature, and therefore saw no reason to interpret Article 14 as excluding criminal investigations from its scope. On the contrary, IFAI said that a proper interpretation of Article 14 suggested exactly the opposite, in the light of principles of transparency and the overriding public interest in asserting human rights violations.

Therefore, because the preliminary investigations in question clearly engaged violations of fundamental human rights and crimes against humanity – including allegations of genocide – IFAI applied the last paragraph of Article 14 to hold that: (i) the preliminary investigations were not protected by secrecy and (ii) there existed an overriding public interest in disclosing this information to the Petitioner. PGR was granted 10 business days to comply with this order.