Case Summary and Outcome

The National Institute for Transparency, Access to Information and Personal Data Protection of Mexico (Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales, or INAI) held that the Attorney General’s Office (Fiscalía General de la República) should provide information regarding criminal investigations against public officers for acts of corruption. The petitioner submitted an access to information request seeking documents and information about the judicial proceedings concerning an accident on Mexico City’s underground (Line 12) that happened on May 3, 2021, where 26 people died and 98 were injured. The Attorney General’s Office denied the requested information because it was classified as confidential, as it could compromise the success of the prosecution and would affect the right to privacy and the presumption of innocence of the aforementioned persons. The INAI held, firstly, that information related to acts of corruption could not be regarded as confidential. Secondly, after applying a test based on suitability, necessity, and proportionality criteria, it claimed that providing information related to the criminal investigation, including the names of the accused civil servants, would foster social scrutiny, transparency, and accountability. Thus, the positive effects of providing the data surpassed the consequences of the restriction on the right to privacy and the presumption of innocence of those persons. The INAI ordered the Attorney General’s Office to provide the public version of the case file within 10 days, including the names of the accused public officers that were being investigated for acts of corruption.

Facts

On May 24, 2021, the petitioner requested from the Attorney General’s Office several documents and information about the judicial proceedings concerning an accident on Mexico City’s underground (Line 12) that happened on May 3, 2021, where 26 people died and 98 were injured. 

On May 27, 2021, the Attorney General’s Office denied the requested information because it lacked the authority to disclose it, as no federal crimes were involved. It held that the petitioner should address the sub-national public offices, such as the City of Mexico’s Attorney General’s Office.

On May 31, 2021, the petitioner lodged an appeal before the INAI, arguing that the Attorney General’s Office had indeed received criminal complaints regarding the accident on Line 12 and that it should disclose all the requested information. On June 7, 2021, Commissioner Adrián Alcalá Méndez declared the case admissible. 

On June 22, 2021, the Attorney General’s Office informed the INAI that, after conducting an exhaustive and reasonable research, the Special Unit for Regional Control (Fiscalía Especializada de Control Regional) found a case file regarding a preliminary investigation related to the Line 12 incident. However, since it was merely a preliminary investigation, it argued that the information was confidential. After a subsequent request from the INAI, the Attorney General’s Office only disclosed the number of the case file, the number of pages, the specific authority in charge of the investigation, the specific crimes that were being investigated, and the status of the investigation. It refused to provide the names of the accused persons and any other documents or information. The crimes that were under investigation were acts of corruption.

Decision Overview

Commissioner Adrián Alcalá Méndez delivered the decision for the INAI, which was adopted unanimously. There were two main issues before the INAI: (i) whether the whole case file should be regarded as confidential and (ii) whether the names of the accused persons should be disclosed.   

The petitioner claimed that the Attorney General’s Office should provide all the information it had regarding the criminal proceedings related to the Line 12 accident. 

For its part, the Attorney General’s Office argued that the case file found by the Special Unit for Regional Control was a preliminary investigation, so the information should be regarded as confidential, as stated in article 110 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law). In this sense, it argued that there was a real, identifiable, and demonstrable risk in revealing the requested information because it would compromise the success of the investigation and the prosecution. The Attorney General’s Office also considered that the restriction on the right of access to public information was proportional because it safeguarded the public interest of efficiently prosecuting crimes. Nevertheless, after a further request from the INAI, the Attorney General’s Office disclosed the number of the case file, the number of pages, the specific authority in charge of the investigation, the specific crime that was being investigated, and the status of the investigation. However, the Attorney General’s Office refused to disclose the names of the accused persons because it was personal data whose disclosure would affect the right to privacy and presumption of innocence of the investigated parties.

Regarding the first issue, the INAI emphasized that the specific crimes that were being investigated, according to the information provided by the Attorney General’s Office, were acts of corruption. Thus, relying on article 112 of the RTI Law, it considered that there was an exception to article 110 of the RTI Law, and that information related to acts of corruption could not be regarded as confidential. To support this position, the INAI also referred to international treaties binding to Mexico, such as the Inter-American Convention Against Corruption, the United Nations Convention against Corruption, and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Additionally, it recalled the Inter-American Commission on Human Rights’ thematic report on Corruption and Human Rights, to conclude that “transparency and the right of access to information are the main tools in the fight against corruption” [p. 30]. The INAI held that the right of access to information has crucial relevance for society since it allows people to know about existent criminal investigations against public officers for acts of corruption.

As for the second issue, the INAI found a tension between the right of access to information —specifically, the right to know the names of the public servants that were being prosecuted for acts of corruption— and the right to privacy and presumption of innocence of those persons. Relying on article 155 of the RTI Law, the INAI applied a test based on suitability, necessity, and proportionality criteria. Firstly, the INAI acknowledged that, in principle, publicly exposing an investigation or prosecution directly related to a person could affect their reputation and dignity. However, in this case, the INAI considered that the right of access to information should prevail over the right to privacy. According to the INAI, providing the required information would foster transparency and accountability and has greater benefits than keeping the names classified. Secondly, the INAI could not find any less restrictive means to achieve the legitimate aim of knowing which public servants were being investigated for corruption regarding the Line 12 accident. It also held that access to this type of information allows for greater social scrutiny and oversight. Thirdly, in terms of proportionality, the INAI considered that the positive effects of providing the names of those civil servants being prosecuted surpassed the consequences of restricting the right to privacy and the presumption of innocence of those persons.

Thus, the INAI concluded that there were no valid grounds to keep confidential the information regarding the criminal investigation of the Line 12 accident. It ordered the Attorney General’s Office to provide to the plaintiff the whole case file within 10 days, including the names of the accused public servants that were being investigated for acts of corruption. 

The decision had concurring votes from Commissioners Blanca Ibarra Cadena, Francisco Acuña Llamas, and Josefina Román Vergara. While they all agreed with the final outcome, they considered that a deeper analysis should have been conducted regarding the first issue. In their opinion, the argument regarding the case file’s confidentiality —because it was a preliminary investigation and could possibly compromise the prosecution— was not properly addressed.