Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
Closed Expands Expression
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The Mexican Information Commission (IFAI) held that the Centre of Investigation and National Security (CNIS) must disclose information relating to contracts for the provision of equipment and materials entered into with computer firm, SOGAMS S.A. de C.V (SOGAMS). However IFAI distinguished between information disclosure which would not threaten national security – such as the price paid, name of the parties, legal representatives, date and term, type of bid, and administrative unit involved – and information related to intelligence personnel and the materials purchased, which had to remain classified.
This case analysis was contributed by Right2Info.org.
In November 2007, the Petitioner requested from the Centre of Investigation and National Security (Centro de Investigacion y Seguridad Nacional, or CNIS), a “copy of the contracts entered between the CNIS and the firm SOGAMS S.A. de C.V (SOGAMS) between December 1 2000 and November 6 2007” [p.1 ].
CNIS refused to disclose this information. For those contracts entered into between December 1, 2000 and August 27, 2007 it stated that that the Petitioner had already been directed to the agency’s website to obtain a response [p.2].
As for the remaining contracts, CNIS claimed they contained classified information and that disclosure could compromise national security, as well as affect the functions performed by CNIS and other federal agencies in connection with the gathering of intelligence, by exposing details of the technology and equipment used for its work. CNIS further warned that such sensitive information could potentially fall into the hands of criminals [pp. 2-3].
CNIS based this argument on Articles 14(I) of the Federal Transparency and Access to Public Governmental Information Law (RTI Law), which allows for a classification of information to be “reserved by law”. In turn, it identified Articles 5 and 51 of the National Security Act and General Guidelines on the Classification and Declassification of Information of Federal Public Agencies as “laws” for the purposes of Article 14(I) of the RTI Law.
It also argued that, under Articles 13(I) (national security) and (IV) (information which if disclosed could endanger the life, security, physical integrity or health of any individual) of the RTI Law, the disclosure of the information would enable the identification of the personnel involved in the agreements, compromising their security and physical integrity and affecting the secrecy that intelligence – and the preservation of national security – necessitates [p.4].
The Petitioner appealed to IFAI, arguing that CNIS had not sufficiently proved the potential threat to national security and that it had failed to disclose information required by Article 7 (XIII) of the RTI Law, which requires public entities to disclose copies of the contracts they enter into [p.3].
On appeal, CNIS informed the IFAI of the number of contracts entered with SOGAMS during the time frame indicated by Petitioner, identifying the level and length of classification. It also repeated arguments it had made to the Petitioner.
IFAI acknowledged that Article 7(XIII) of the RTI law requires public entities to disclose information from the contracts they conclude, including the amount, parties, terms and other details, except when such information falls under one of the grounds for reservation [pp.21-22].
IFAI then analysed CNIS’s national security defence and its invocation of the National Security Act as grounds for classification of the contracts in the context of Article 14(I) of the RTI Law. The commission rejected National Security Act Article 5 as constituting proper grounds for declassification but admitted Article 51, which states that all information that might reveal rules, procedures, methods, specifications, techniques, technologies or equipment instrumental to the generation of intelligence for the protection of national security is per se reserved.
IFAI considered the nature of the equipment produced by SOGAMS, which is advertised on its website, and determined that the contracts sought by Petitioner reasonably related to the provision of technology and equipment utilized for the protection of national security, and that the disclosure of such contracts would indeed compromise intelligence and counter-intelligence activities [pp. 30-31].
However, it rejected a blanket classification of all information contained in CNIS’s agreements with SOGAM, distinguishing between information disclosure which would not threaten national security – such as the price paid, name of the parties, legal representatives, date and term, type of bid, and administrative unit involved – and information related to the materials purchased, which had to remain classified. Consequently, IFAI ordered the disclosure of the first set of public data with respect to the contracts entered with SOGAM during the period identified by Petitioner [pp.31-35].
Finally, IFAI addressed CNIS’s claim that the contracts would also be reserved under Articles 13(I) and (IV) of the RTI Law – in response to CNIS asserting that their disclosure would unduly compromise the physical integrity and security of the personnel involved and would affect the gathering of intelligence and counter-intelligence, thus indirectly threatening national security. In this regard, IFAI expressly reiterated the criteria it applied in Case No. 165/03, and determined that while the names of non-intelligence personnel constituted public information and had to be disclosed, the personal data of intelligence personnel was naturally reserved [pp. 35-37].
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