Access to Public Information
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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 complaints filed against the head of the Undersecretary of Prevention and Health Promotion. The petitioner submitted an access to information request seeking to know how many lawsuits were filed against the public servant, how many criminal investigations were open, for which crimes, on what dates, and by whom, among other data. The Attorney General’s Office denied the request because it considered that the information was confidential as it would affect the right to privacy and the presumption of innocence of the aforementioned person, and that it could compromise the success of the prosecution. The INAI considered that the requested information would foster transparency and accountability and that there were no less restrictive means to achieve the legitimate aim of knowing if there were criminal investigations against the government officer. Moreover, the INAI explained that since the existence of lawsuits against this person was already publicly known, the protection of his privacy regarding this issue had already been compromised. The INAI instructed the Attorney General’s Office to conduct an exhaustive and reasonable research and provide the requested information within 10 days.
On April 4, 2022, the petitioner requested from the Attorney General’s Office the following information: (i) how many criminal complaints were filed against the current head of the Undersecretary of Prevention and Health Promotion, Hugo López-Gatell Ramírez; (ii) dates of the reception of the criminal complaints and whether they were filed by a person or a public office; (iii) how many criminal investigations were open and for which crimes; (iv) number of identification of the case files; (v) dates in which the criminal investigations began; and (vi) copy of the case files, when they involve corruption or possible human rights violations.
On May 10, 2022, the Attorney General’s Office denied the requested information because it was classified as confidential, under article 113 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law).
On May 20, 2022, the petitioner lodged an appeal before the INAI, arguing that the person —about whom the information required was about— was a public servant at the federal level. On May 26, 2022, Commissioner Adrián Alcalá Méndez declared the case admissible.
On June 23, 2022, the Attorney General’s Office informed the INAI that the requested information was available, but since it was still regarded as classified, it suggested a virtual or physical hearing to provide the data. On July 6, 2022, the hearing was held. The Attorney General’s Office stated that the Special Unit against Corruption (Fiscalía Especializada en materia de Combate a la Corrupción) found no information related to Mr. Hugo López-Gatell Ramírez.
On August 1, 2022, the Attorney General’s Office added that the Special Unit for Jurisdictional Control (Fiscalía Especializada de Control Competencial), the Special Unit for Organized Crime (Fiscalía Especializada en materia de Delincuencia Organizada), the Special Unit for Electoral Crimes (Fiscalía Especializada en materia de Delitos Electorales), the Human Rights Special Unit (Fiscalía Especializada en materia de Derechos Humanos), and the Foreign Affairs Coordination Unit (Coordinación de Asuntos Internacionales y Agregadurías) did not find any complaints filed against Hugo López-Gatell Ramírez either. Nevertheless, the Attorney General’s Office mentioned that the Special Unit for Regional Control (Fiscalía Especializada de Control Regional) held that the requested information was confidential and offered no additional data.
Commissioner Adrián Alcalá Méndez delivered the decision for the INAI, which was adopted unanimously. The main issue before the INAI was to determine the lawfulness of the confidentiality invoked by the Attorney General’s Office, in particular, by the Special Unit for Regional Control.
The petitioner claimed that the head of the Undersecretary of Prevention and Health Promotion was a public officer and that, consequently, the Attorney General’s Office had to provide the requested information regarding the lawsuits or criminal complaints filed against him.
For its part, the Attorney General’s Office argued that confirming or denying the existence or inexistence of lawsuits or criminal investigations against a physical and identifiable person would affect their intimacy, honor, reputation, and the presumption of innocence. In this sense, it informed that it could not disclose personal data unless it had written consent from the person involved. Doing otherwise would violate the right to confidentiality of personal information. The Attorney General’s Office further argued that the right to access to public information can be limited, for example, when it has the potential to affect the honor, reputation, or privacy of a person. The Attorney General’s Office also stated that even though the protection of the right to privacy of public officials is weaker because they are more exposed to social scrutiny, that does not mean that they do not enjoy its protection. The Attorney General’s Office considered that providing the requested information would violate the presumption of innocence, because it would create a preliminary judgment against the person, before a proper determination of their guilt or innocence through a judicial judgment. Lastly, the Attorney General’s Office held that the confidentiality and secrecy of the case files safeguarded a public interest, as it improves the success of criminal prosecutions.
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, after conducting its own research about the case, the INAI found public information regarding criminal complaints against Hugo López-Gatell Ramírez, specifically official announcements on behalf of Congress members and news in different media outlets at the national level. The INAI argued that this kind of information was of public interest. Relying on article 155 of the RTI Law, the INAI applied a standard based on suitability, necessity, and proportionality to solve the tension between the public servant’s right to privacy and the petitioner’s right to access public information.
Regarding the first point, the INAI considered that providing the requested information would foster transparency and accountability because it would allow society to confirm whether the public accusations against López-Gatell were formally filed before the justice system and whether they were given due course. As for the second issue, the INAI could not find any less restrictive means to achieve the legitimate aim of knowing if there were criminal complaints filed against the head of the Undersecretary of Prevention and Health Promotion. In this sense, the INAI considered that government officials have voluntarily submitted themselves to a different threshold when it comes to the protection of their honor and are subjected to greater scrutiny and criticism by the public. Additionally, the INAI argued, public officials have a greater ability to influence society and access to the media to respond to questioning and criticism. In terms of proportionality, the INAI considered that revealing the requested information is of great benefit for public scrutiny and strengthens the human right of access to public information. Furthermore, the INAI held that since the existence of lawsuits or criminal complaints against López-Gatell was already public, the protection of his privacy regarding this issue had already been compromised.
Hence, the INAI ordered the Attorney General’s Office (in particular, the Special Unit for Regional Control) to conduct an exhaustive and reasonable research regarding (i) how many criminal complaints were filed against Hugo López-Gatell Ramírez; (ii) dates of the reception of the criminal complaints and whether they were filed by a person or a public office; (iii) how many criminal investigations were open and for which crimes; (iv) number of identification of the case files; (v) dates in which the criminal investigations began; and (vi) public version of the case files. The INAI clarified that the information should be delivered within 10 days and limited only to the activities conducted by Mr. Hugo López-Gatell Ramírez as a public servant, thus excluding his private life. Additionally, it stated that the data should only refer to cases where the criminal investigations had already been notified to him, in order not to compromise other possible investigations.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its ruling, the INAI held that the information regarding existent lawsuits filed against public servants was of public interest and could not be classified as confidential, even more, where information regarding criminal complaints were already divulged in the press. The decision also held that although government officials enjoy their right to privacy, they have voluntarily submitted themselves to a different threshold when it comes to this right and that they are subjected to greater scrutiny and criticism by the public, as set by international human rights standards on the matter.
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This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.
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