Access to Public Information, Other (see tags), Political Expression
Gomes Lund v. Brazil
Closed Expands Expression
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The Mexican Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI) held that the public prosecutor must release a copy of the report handed by the Special Prosecutor for Political Movements of the Past to President Vicente Fox on April 15, 2006, absent proof of how disclosure would harm ongoing investigations.
This analysis was contributed by Right2Info.org.
In July, 2006, the Petitioner requested from the public prosecutor (Procuraduria General de la Republica, or PGR) “a copy of the final report handed by the Special Prosecutor for Political Movements of the Past to President Vicente Fox … April 15, 2006.” [p. 1]. Presidential spokesman Dr. Ruben Aguilar acknowledged that a document entitled “Historic Report on Mexican Society” had indeed been produced to the President on April 15, 2006. A rough draft had also been leaked to the press.
The PGR denied access to the information, arguing that the report was a rough draft, part of a deliberative process among government agencies and that its disclosure would cause “public uncertainty about the historical facts that occurred during the authoritarian regime.” [pp.4-5]. It also noted that disclosure could compromise the effectiveness of law enforcement and prosecution activities, since the report was part of an ongoing administrative/criminal investigation to determine who had been responsible for the leak [p. 3].
The PGR relied on Articles 13(V) and 14 (III) and (IV) of the Federal Transparency and Access to Public Governmental Information Law (RTI Law), which protects information related to preliminary, ongoing or government investigations and information which, if disclosed, could negatively compromise the integrity of ongoing proceedings, investigative and other law enforcement activities.
The Petitioner appealed to the IFAI.
The IFAI ruled in favour of the Petitioner.
First, it held that Article 13(V) of the RTI Law was not applicable. According to the IFAI, under the said provision, information is reserved from disclosure when such disclosure would result in some kind of identifiable and probable harm to criminal prosecution or other law enforcement activities, endangering them severely. The PGR failed to provide evidence of the probability of such harm. The IFAI rejected the PGR’s blanket assertion that the report was being used in the context of an ongoing investigation as insufficient and noted the absence of persuasive evidence illustrating in what specific way disclosure would affect such investigations.
Second, the IFAI found that, while Article 14(III) of the RTI Law protects information related to preliminary investigations, the PGR had failed to prove that the report sought by Petitioner was indeed part of an ongoing investigation – or that any investigation on the matter existed – and thus Article 14(III) did not apply.
Finally, the IFAI also struck down the PGR’s Article 14(IV) defense dealing with non-disclosure of government investigations, indicating that in the case at hand, the contents of the report were not directly implicated. Such investigations were merely initiated to find out who had leaked the draft report, but the subject matter of the investigation per se was unrelated to the information contained in the report.
The IFAI ordered that the information be released to Petitioner within 10 business days and that any confidential information be redacted, together with an explanation of the reasoning/motivation behind any redaction.
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