Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI) held that the Secretariat of National Defence (Sectretaria de la Defensa Nacional, or SND) must fully disclose the conciliation files of the National Commission of Human Rights (NCHR) in respect of proceedings where conciliation was offered to personnel of the SND and which have already been resolved. In respect of cases that have not been resolved, the SND must disclose the files but redact information that would allow an identification of the individuals engaged in such proceedings, to protect both their identities and the integrity of the process.
This case analysis was contributed by Right2Info.org.
In December 2003, Petitioner (ITAM University Atalaya Program) requested the SND to grant access to “the files in which the National Commission of Human Rights proposed a conciliation (or alternative dispute resolution) on the grounds of acts attributed to personnel of the SND […] between 1 October 2002 up to 30 November 2003.”
The SND responded that such files were not in its power and that the Petitioner should address the National Commission of Human Rights rights instead. It also maintained the information was classified under Articles 13 and 14(I) of the RTI Law as supplemented by Article 9 of the NCHR’s Transparency and Access to Information Regulations (NCHR Regulations).
IFAI firstly noted that the fact that the files did not originate at the SND, but rather were created by the NCHR was irrelevant, since Article 3 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law) defines “information” for the purposes of such law as that which is generated, obtained, acquired, transformed or conserved” by public entities, regardless of under what title. Therefore, to the extent that the SND possessed, in any capacity, any portions of the information sought by Petitioner, then the provisions of the RTI Law applied.
IFAI then turned to an analysis of the classification claim. Article 14(I) of the RTI Law provides that “reserved” or “classified” information shall be that which is expressly identified as such by law. In turn, Article 9 of the NCHR regulations defines confidential or reserved information for the purposes of the Regulations as all that exists in NCHR’s files. However, Article 9 is subject to Article 4, which establishes that the duty of confidentiality is applicable to the personnel that handle the NCHR’s documents and files. IFAI jointly interpreted these two provisions to mean that, while NCHR personnel are bound by a duty of confidentiality, the documents and files themselves are not always confidential per se and therefore the SND cannot rely on these provisions to reject disclosure under the umbrella of Article 14(I) of the RTI Law.
IFAI also understood that, based on Article 119 of the NCHR’s Regulations, while conciliation proceedings are still open or ongoing, all information produced within such proceedings is covered by Article 13(V) of the RTI law, which establishes a reservation for proceedings where the liability of public officers is as stake. IFAI also pointed out that Article 18(II), which protects personal data that requires consent of the data owner for disclosure, was relevant to the case at hand.
Therefore, IFAI ordered full disclosure of those files where administrative and liability proceedings involving SND personnel had concluded. As for those cases that were not closed, IFAI ordered that information be disclosed but omitting the names and other personal data that would allow an identification of SND personnel, so as to protect their identities and the integrity of ongoing proceedings.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by upholding a public right to access to information held by the SND concerning administrative and liability proceedings involving SND personnel, save for personal data that would enable identification of SND personnel in ongoing proceedings.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.