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 National Autonomous University of Mexico (Universidad Nacional Autónoma de México, or UNAM) should provide information regarding complaints of sexual harassment filed against professor Pedro Agustín Salmerón Sanginés. The petitioner submitted an access to information request which was rejected by the UNAM because it would violate Mr. Sanginés’ right to privacy. Thus, the UNAM argued that data should be classified as confidential. The INAI acknowledged that, in principle, information related to the existence or inexistence of complaints of sexual harassment filed against an identifiable person could be classified as confidential, because it could violate the person’s right to privacy and honor. However, considering the context of the present case, the INAI considered that the right of access to information should prevail over the right to privacy because it involved gender-based violence by a public officer in an educational environment, which is a matter of public interest, and because the existence of such complaints was already public. The INAI ordered the UNAM to provide the requested information within 10 days.
On January 28, 2022, the petitioner requested from the National Autonomous University of Mexico information regarding complaints of sexual harassment filed against professor Pedro Agustín Salmerón Sanginés. They also asked for data about the contractual relationship between the professor and the institution.
On March 14, 2022, the National Autonomous University of Mexico informed the duties and positions held by the professor, and the dates when he worked for the university. However, it denied the information regarding the complaints filed against him, arguing that it would violate his right to privacy.
On April 5, 2022, the petitioner lodged an appeal before the INAI arguing that there was no legal basis to classify the requested information as confidential and that the rest of the provided data was incomplete and inaccurate. On April 19, 2022, Commissioner Adrián Alcalá Méndez declared the case admissible.
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 information regarding complaints of sexual harassment against professor Pedro Agustín Salmerón Sanginés should be classified as confidential and (ii) whether the rest of the provided data satisfied the petitioner’s request.
Firstly, the petitioner claimed that there was no legal basis to classify the information regarding the complaints of sexual harassment as confidential. They held that the person was a public officer and that the requested data should be publicly available, especially because professor Sanginés was the candidate to become the next Mexican Ambassador in Panama. Additionally, the plaintiff argued that the requested data involved gender-based violence, which is a matter of social interest. As for the second issue, the petitioner considered that part of the provided data was incomplete and inaccurate.
For its part, the National Autonomous University of Mexico denied the information regarding the complaints filed against professor Sanginés, arguing that it would violate his right to privacy. The university stated that divulging that data would damage his image, honor, and reputation. It also held that irrespective of being a public officer, the person still enjoyed the protection of his rights. Thus, it considered that the data was confidential, according to the Federal Transparency and Access to Public Governmental Information Law (RTI Law). Regarding the second issue, the UNAM affirmed that it responded to each of the other petitioner’s requests in a complete, precise, and accurate manner.
The INAI first acknowledged that, in principle, information related to the existence or nonexistence of sexual harassment complaints filed against an identifiable person could be classified as confidential, according to article 113 of the RTI Law. In this sense, it stated that the data could violate the person’s right to privacy and honor. However, the INAI emphasized that the context of the case was important. Here, the INAI recalled a press conference held by the President of Mexico, where he supported Mr. Sanginés’ candidacy to serve as the Mexican Ambassador in Panama, even when the professor was accused of sexual harassment by former students during his tenure at the UNAM. The President affirmed on that occasion that there was no proof that confirmed the accusations. The INAI also highlighted that the Ministry of Foreign Affairs of Panama rejected the proposal of Mr. Sanginés to become the Mexican Ambassador.
Within this context, and relying on article 155 of the RTI Law, the INAI applied a test based on suitability, necessity, and proportionality criteria. Firstly, it held that the existence of complaints of gender-based violence against Mr. Sanginés was already publicly known and that providing the requested information would foster transparency and accountability because it would allow the public to confirm the existence of these complaints and whether they were given due course. Secondly, the INAI could not find any less restrictive means to achieve the legitimate aim of knowing if there were complaints filed against the professor for gender-based violence. It also stated that access to this type of information allows for greater social scrutiny and oversight. Additionally, the INAI argued 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. Furthermore, the INAI held, public officials have a greater ability to influence society and access the media to respond to questioning and criticism. Thirdly, 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. Moreover, it argued that Mr. Sanginés’ privacy regarding this specific issue had already been compromised because the existence of complaints of gender-based violence against him was already publicly known. Finally, the INAI indicated that the information involved sexual violence in an educational environment, which is a matter of public interest. Hence, the INAI considered that, in this case, the right of access to information should prevail over the right to privacy.
As for the second issue, the INAI held that the National Autonomous University of Mexico responded to the rest of the petitioner’s requests in a complete, precise, and accurate manner.
In conclusion, the INAI ordered the UNAM to provide the plaintiff the information regarding complaints of sexual harassment filed against professor Pedro Agustín Salmerón Sanginés within 10 days.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its ruling, the INAI asserted the importance of analyzing the context when addressing the tension between the right to privacy and the right of access to information. In this sense, it considered that data related to complaints of gender-based violence filed against a public servant in an educational environment could not be classified as confidential, even more, when the existence of such complaints was already public. 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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