Access to Public Information, National Security, Privacy, Data Protection and Retention
Bucur v. Romania
Closed Expands Expression
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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 Secretary of Health (Secretaría de Salud) should provide information regarding the reception and donation of vaccines against Covid-19. The Secretary of Health partially denied an access to information request; it specifically denied granting information regarding the amount of vaccines Mexico donated to other countries and the countries Mexico asked for vaccine donations from. The Secretary of Health argued that the information was classified as confidential since it could compromise the national response to the pandemic and Mexico’s national security. The INAI held that the data requested by the petitioner, some of which had already been disclosed publicly “by the government and foreign authorities,” did not have the potential to destabilize the national response against Covid-19 nor damage the public health system. It ordered the Secretary of Health to conduct an exhaustive search and to provide the requested information, in the format demanded by the petitioner, within 10 days.
On October 15, 2021, the petitioner requested information from the Secretary of Health regarding the reception and the donation of vaccines against Covid-19. Concretely, the request inquired which countries asked Mexico for vaccine donations, how many vaccines Mexico donated, which countries Mexico asked vaccine donations from, how many vaccine donations Mexico received, and how many vaccines Mexico bought.
On December 6, 2021, the Secretary of Health partially denied the requested information because it was classified as confidential. Specifically, it denied the information concerning the donations made by Mexico and the countries Mexico asked donations from. As for the rest of the information —how many vaccine donations Mexico received and how many vaccines the country bought—, the Secretary of Health provided links to websites with data regarding Covid-19 vaccines.
On January 12, 2022, the petitioner lodged an appeal before the INAI, arguing that the requested information had not been delivered. They also considered that there was no legal basis to classify the required information as confidential because it consisted of publicly available information. On January 13, 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 denied information should be regarded as confidential and (ii) whether the provided information was delivered in the requested format.
The petitioner claimed that the Secretary of Health should provide all the requested information in the demanded format (an Excel file) and that there was no legal basis to classify it as confidential because it was publicly available information.
For its part, the Secretary of Health argued that revealing part of the requested information could compromise Mexico’s national security and damage the public health system. In this sense, it held that divulging information regarding the reception of donated vaccines and the ongoing negotiations, could risk the termination of the contracts since they had confidentiality clauses. Consequently, this would lead to a shortage of vaccines in the country. Moreover, the Secretary of Health stated that the requested information could end up in the hands of terrorist organizations, who might destabilize the national response against Covid-19 by subtracting vaccines, sabotaging infrastructure, or using violence against public agents. In sum, the Secretary of Health considered there were real, identifiable, and demonstrable risks of harming public interests if it provided part of the requested information.
Regarding the first issue, the INAI held that article 110 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law) allows classifying as confidential information the data that could compromise or risk national security or public health. However, it also argued that the information regarding the countries that asked Mexico for vaccine donations, the number of vaccines donated, and the countries Mexico asked donations from, could not be classified as confidential because it did not pose a threat to the national response against Covid-19. The petitioner, the INAI argued, was merely asking for statistics, not for information concerning strategic aspects or security protocols that could compromise the country’s national security. In this sense, the INAI explained that even if the National Vaccination Campaign was considered a matter of national security, that did not mean that all the information related to the Covid-19 vaccines was automatically confidential. Considering the principle of maximum disclosure, the INAI concluded that the possible confidentiality of information should be analyzed case-by-case and interpreted restrictively.
Additionally, the INAI said that after conducting its own research, it found official announcements from Mexico’s Secretary of Foreign Affairs and from the US Embassy in Mexico related to the countries that asked Mexico for vaccine donations, the number of vaccines donated by Mexico, and the countries Mexico asked donations from. Thus, it concluded, the information could not be considered confidential as a measure to protect national security because it was already made public by the government and foreign authorities. The INAI stated that the data requested by the petitioner could not destabilize the national response against Covid-19 nor damage the public health system. As for the argument regarding the possible breach and termination of contracts and the eventual shortage of vaccines, the INAI also found public statements from Mexico’s Secretary of Foreign Affairs regarding negotiations with other states and laboratories. Therefore, it held that disclosing the information posed no risks to the success of those negotiations.
Regarding the second issue, the INAI considered that public offices should provide the information in the format requested by the petitioner. In the present case, the INAI considered, the web links provided did not comply with this obligation, because the petitioner asked for an Excel file, and the Secretary of Health did not justify its improper delivery. Furthermore, the INAI held that the Secretary of Health did not conduct an exhaustive research on the requested information and that it did not offer the complete data.
Hence, the INAI ordered the Secretary of Health to conduct an exhaustive research and to provide the requested information to the plaintiff, in the required format, 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 held that the information regarding statistics about the donation and reception of Covid-19 vaccines did not compromise national security nor the public health system, since the required information had already been divulged, and thus could not be classified as confidential. Furthermore, it reaffirmed that government offices should provide the information in the format requested by the petitioner, whenever it is possible. Through this, the INAI fosters an environment of government transparency and citizen oversight in public health-related matters.
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