Case Summary and Outcome

The Mexican Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI) held that a government agency cannot unilaterally re-classify information that the Information Commission had already catalogued as public in a prior decision. However it ruled that an appeal is inadmissible where a decision has been issued in a previous case that involved substantially the same parties and subject matter.

This case analysis was contributed by Right2Info.org.

Facts

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) in 2002, in connection with 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.

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 ruled that the information was public, ordered disclosure and a copy of the documents was made available to Petitioner.

In April 2011, Petitioner filed two additional requests with the PGR, seeking two specific documents (“Determinaciones” and “Sentencia”) of preliminary investigation PGR/FEMOSPP/002/2002. The PGR refused disclosure relying on exemptions from disclosure that protect preliminary investigations – namely, Articles 14(I) and (III) of the Federal Transparency and Access to Public Governmental Information Law (RTI Law) – and explained that disclosure would violate its duty of secrecy under Article 16 of the Federal Code of Criminal Procedure (FCCP). The Petitioner appealed to the IFAI and the individual information requests were assigned dockets numbered 2961/11 and 2962/11.

On appeal, the PGR relied on Articles 14 (I) and (III) of the RTI Law and Article 16 of the FCCP to argue that that information sought by Petitioner was reserved. Specifically, it argued that Articles 14(I) and (III) of the RTI Law label “reserved information” as that which is so denominated by law and expressly includes preliminary investigations in that category. In addition, FCCP Article 16 provides tha, once the Court took up criminal action, only the parties to the case can have access to the preliminary investigations produced in the proceedings and public authorities that disclose any such information are subject to administrative or criminal liability.

Decision Overview

The IFAI rejected the PGR’s position on the basis that the PGR could not unilaterally re-classify information that IFAI had already catalogued as public in its decision in previous case No.1311/10, and which the PGR was required to disclose accordingly. Having already addressed the PGR’s substantive defenses in case No. 1311/10, IFAI did not revisit the Article 14 and 16 defenses.

Notwithstanding the former, the IFAI ultimately discarded 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 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.