Access to Public Information, Other (see tags), Political Expression
Gomes Lund v. Brazil
Closed Mixed Outcome
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The Mexican Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI) held that a government agency must disclose information that was ordered to be released in a previous case. However, the IFAI dismissed the Petitioner’s appeal because it had already issued a resolution in the previous case which involved substantially the same parties and subject matter.
This case analysis was contributed by Right2Info.org.
In December 2009, the Petitioner requested from the public prosecutor (Procuraduria General de la Republica, or PGR) a copy of preliminary investigation PGR/FEMOSPP/002/2002 initiated by the Special Prosecutor for Social & Political Movements of the Past (FEMOSPP).
The investigation was related to 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 to, eventually unsuccessful, criminal charges being brought against former President Luis Echeverria and a number of public officials in September 2005.
The Petitioner’s initial request for information was denied by the PGR and subsequently appealed before the IFAI under docket No. 1311/10. The IFAI ultimately ordered disclosure and a copy of the documents was made available to the Petitioner.
In November 2010, Petitioner filed a second request, No. 0511/11, seeking to obtain a specific document included in the same preliminary investigation. Ignoring IFAI’s resolution in case No. 1311/10, the PGR refused disclosure once again on three grounds: (i) the PGR was not the competent authority to facilitate the information (the request should be directed to the competent court); (ii) the PGR did not have the documents (they were handed over to the court); (iii) even if it did, Article 16 of the Federal Code of Criminal Procedure (FCCP) imposed upon it a duty of secrecy, precluding it from disclosing information related to preliminary investigations once criminal action had been taken up by the Court (after which this could only be released to the parties involved in the proceedings).
On administrative appeal, the Petitioner relied on the provision in the last paragraph of Article 14 of the Mexican Transparency and Federal Transparency and Access to Public Governmental Information Law (RTI Law), providing for the disclosure of prima facie reserved documents, such as preliminary investigations, when they relate to grave violations of fundamental rights and crimes against humanity. The PGR reiterated its arguments, relying heavily on FCCP Article 16, and noted that the IFAI should not enforce the Article 14 provision (effectively an exception to the exception) pending an official interpretation of this provision by the Mexican Federal Supreme Court in parallel proceedings.
The IFAI expressly rejected the PGR’s arguments. First, the fact that the Supreme Court had yet to decide on the application and interpretation of Article 14 in other proceedings was irrelevant, since the IFAI’s administrative resolutions are final and as such must be complied with immediately. Second, the PGR could not deny possessing documents that it had previously offered to disclose following the IFAI’s orders in case No. 1311/10. Third, the IFAI had already dismissed the PGR’s Article 16 defence when deciding that previous case.
Notwithstanding the former, the IFAI ultimately dismissed the Petitioner’s appeal invoking articles 57(II) and 58(III) of the RTI Law, which jointly provide that an appeal shall be deemed inadmissible when it has already been brought before the IFAI. The IFAI noted that it had already issued a resolution ordering disclosure of the FEMOSPP preliminary investigations in case No. 1311/10, which involved the same parties and identical subject matter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision has a mixed outcome because although the IFAI ruled that the PGR must disclose information that it had already been ordered to release, it dismissed the Petitioner’s appeal as inadmissible because it had already ruled in a previous case that essentially covered the same parties and subject matter.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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