May 17, 2006

III. Transparency: Ending the Culture of Official Secrecy

If the 2000 election represented the decisive break with decades of one-party rule in Mexico, the next major step in the country's transition to democracy came two years later with the passage of the Law on Transparency and Access to Official Information.While the election of an opposition candidate confirmed that Mexico had finally changed the way it selected its leaders, the new "transparency law" showed that these leaders were ready to change the way the country was governed-at least in one key respect.

During the decades of one-party rule, a culture of secrecy had prevailed in virtually all areas of government. The problem was most acute during moments of national crisis, such as the 1985 earthquake or the 1994 economic meltdown, when government institutions systematically withheld the information that its citizens needed to respond and recover.But it also manifested itself in more mundane matters, as ordinary Mexicans were routinely denied access to the most basic information regarding the institutions and even the rules that governed their daily lives.Perhaps most importantly for the stunted quality of the country's democratic process, journalists were unable to obtain the information that was essential for reporting on government policies and programs.

For years this culture of secrecy was a principal obstacle to the promotion of human rights in Mexico.In addition to undermining the basic right of its citizens to freedom of information, the lack of transparency also undermined the ability of civil society actors and even well-intentioned government officials to confront an array of abusive practices by the state.Moreover, it prevented the victims of grave violations and their relatives from obtaining the information they needed to seek redress for the abuses they had suffered.

The 2002 transparency law dealt a major blow to this culture of secrecy.It established a "principle of publicity" that essentially reversed the state's traditional approach to the disclosure of information.Whereas in the past disclosure was the exception, under the new law it would be the rule.The law also established a powerful mechanism-the Federal Institute for Access to Official Information (IFAI)-to enforce this principle within the executive branch and mandated the creation of comparable mechanisms within the other branches.As a consequence, for the first time,Mexico opened the government to public scrutiny.

The transparency law was the single most unambiguous achievement in the area of human rights during the Fox presidency.The credit for making it happen is shared by many-from President Fox, who signed the law, to the legislators from all three major parties who voted to pass it, and, perhaps most importantly, to a diverse array of civil society actors who conceived the law and convinced Mexico's political leaders that it was necessary.

The potential impact of the transparency law received a huge boost by the 2002 declassification of millions of secret documents from government archives, which President Fox had authorized the previous year when he established the Special Prosecutor's Office to investigate past human rights abuses.The declassification amounted to a retroactive application of the new publicity principle, giving journalists, investigators, and ordinary citizens access to government information that had been denied to them for decades, and providing them with written evidence including extensive documentation of past human rights violations.

Both the transparency law and the document declassification had important ramifications for human rights monitoring in Mexico.They have allowed Mexican society to have access to written evidence on past human rights abuses that corroborated the claims of human rights victims and their families, as well as to information that was previously unknown.

But if the transparency law has transformed Mexico's approach to managing information, there are good reasons to worry that the culture of secrecy will reassert itself in the future:

  • The IFAI has not been granted autonomy from the executive branch and remains vulnerable to political interference;
  • The IFAI has encountered reluctance on the part of several key government entities to full compliance with the transparency law-a problem that could worsen should the next administration choose not to prioritize transparency;
  • The progress made in promoting transparency within the executive branch has not been matched in the other branches of government nor in the autonomous state institutions; and
  • The transparency law does not apply to political parties, which receive substantial public funding and play a decisive role in determining who can run for office and what laws get passed by Congress.

Similarly, the value of the millions of documents declassified by President Fox has been severely undercut by a variety of obstacles faced by people conducting research in the National Archive.These include missing documents, the deficient management of the National Archive, the lack of adequate indexes, and the overly broad application of privacy protections.

In sum, the historic advances that Mexico has made in the area of transparency remain quite precarious even today.Whether these advances become permanent will depend largely upon the policies and priorities of the next president.It is crucial that the next administration commit itself to removing the obstacles that threaten the future success of the transparency law.

Background

Mexico took its first step toward ending its culture of secrecy when it reformed its Constitution in 1977 to provide that "the right of access to information shall be guaranteed by the State."[49]However, this reform had little impact in practice.Attempts to exercise the new constitutional right were generally unsuccessful.[50] And lack of transparency remained the norm in management of government affairs.[51]

The one area where real progress had been made in promoting transparency was in the management of national elections.After the debacle of the 1988 presidential contest, when the PRI government appeared to have stolen victory from the challenger, democracy advocates organized themselves to push for transparency in elections.Their advocacy led to the creation in 1990 of the Federal Electoral Institute (IFE), which began monitoring campaign spending and media coverage prior to the 1994 presidential election.Although the 1994 election was cleaner than the previous one, election observers still witnessed thousands of irregularities.The winner, Ernesto Zedillo, himself acknowledged that his own election had been flawed and, once in office, promoted a new electoral reform. Passed in 1996, the reform granted Mexico one of the world's most advanced balloting systems. In 1997 Mexicans elected a majority of opposition members to Congress, and in 2000 they finally ended one-party control of the presidency.[52]

International Norms

The right to "seek, receive, and impart" information is recognized in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR), and the American Convention on Human Rights.[53]In Human Rights Watch's view this right should be interpreted as generally entailing a right of access to official information as well as information that is generally available.[54]

Although international human rights law does not explicitly provide a right of access to official information, there is growing international recognition that the right to seek, receive and impart information encompasses a positive obligation of states to provide access to official information in a timely and complete manner.Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual.[55]In the Americas, the Inter-American Commission on Human Rights (IACHR) interpreted Article 13 of the American Convention (on the right to freedom of expression) to include the right of access to official information.[56]Moreover, it is internationally recognized that the right of access to official information is crucial to ensure democratic control of public entities and to promote accountability within the government.[57]

The right of access to information is governed by the "principle of maximum disclosure."[58] In other words, the government is always presumed to be under an obligation to disclose information.This presumption can only be overridden under circumstances, clearly defined by law, in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.[59]

The Transparency Law

Bringing about Reform

Mexico's transparency law was the product of a political consensus forged among a wide range of political actors, including President Fox, his PAN party, and members of the opposition parties in Congress, and brought about through an extensive campaign by members of Mexican civil society.[60]

President Fox had mentioned access to information and transparency during his presidential campaign, and, early in 2001, his administration began drafting a law on access to official information.[61] After a draft was leaked to the public, an array of civil society actors began to evaluate and critique the governmental initiative.[62]

Then, in May 2001, some academics, activists, media owners and journalists created a group, later called the "Oaxaca Group," to discuss access to information.[63]This group produced the Oaxaca Declaration, which lists the necessary elements of legislation on access to information.[64]The group then drafted a legislative proposal and lobbied members from all opposition parties to introduce their proposal in Congress.[65]

A special congressional working group, composed of members of Congress from the three major parties, representatives of the executive, and members of the Oaxaca Group, evaluated the proposals and arrived at a consensus on most of the issues that were being discussed. The result was the Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Informacin Pblica Gubernamental), or "transparency law," signed into law in June 2002.

The New Law

Normative Structure

The transparency law establishes that all information in the hands of the government is of a public nature.Accordingly, it requires public officials and agencies to apply the "principle of maximum disclosure" when it comes to managing official information: they must presume that the information is public, and only restrict it if it meets certain criteria.[66]

The law establishes a list of transparency obligations, requiring every government entity to post on its Web site basic information about its structure, personnel, budget, and operating procedures.The law also creates mechanisms for the executive to respond to information requests, and orders other entities subject to the law to create their own mechanisms for this purpose as well.[67]

The transparency law establishes limits on access to official information by defining what constitutes privileged and confidential information.According to the law, information may be considered "privileged" if its release could endanger national security; undermine international negotiations or relations; damage the financial, economic or monetary stability of the country; risk the life, health or safety of any person; or seriously damage the verification of law fulfillment, crime prevention or persecution, law enforcement, tax revenue, migration control, or the procedural strategies of judicial or administrative processes (as long as the resolutions have not been decreed).Access to "privileged" information may be limited for up to twelve years.[68]

Information is "confidential" if the person who provided it to a government entity specifically indicated that it should remain so.[69]It is also "confidential" if it constitutes "personal data," which the law defines to include:

all information concerning an individual, identified or identifiable, including their ethnic or racial origin, or related to their physical, moral or emotional characteristics, their personal and family life, residence, telephone number, patrimony, ideology, political opinions, religious or philosophical beliefs or convictions, physical or mental health, sexual preferences, or any other similar preferences that could have an impact on their intimacy.[70]

Under the transparency law, "personal data" about an individual can only be disclosed if that individual authorizes the disclosure.The law also establishes the rights of individuals to obtain access to their own "personal data" and to require that government entities correct any incorrect data in their possession.[71]

The transparency law establishes one important exception for information on human rights cases. Specifically, it provides that "in case of severe violation of fundamental rights or crimes against humanity the information found in the investigations may not be deemed privileged."[72]

Mechanisms for Implementation

Given that the executive had been the center of secrecy for decades, the participants in the negotiations over the law agreed to focus on "opening" the executive first.[73]Thus, the transparency law addresses in detail the mechanisms by which citizens can obtain information held by the executive.[74]

The transparency law created the Federal Institute for Access to Official Information (IFAI) to promote and regulate access to information within the executive branch, as well as liaison units within each executive agency to respond to specific information requests.

The law also created a system for soliciting access to information.Any person, including non-Mexicans, may request the desired information by visiting the IFAI Service Center, where he or she will be assisted on how to request information, by visiting the liaison unit in the agency where the desired information should be available, or by accessing the System for Information Requests (Sistema de Solicitudes de Informacin, SISI) on the Internet.[75]In the event that the information request is denied or if the person requesting it is dissatisfied with the answer, he or she may appeal that decision before the IFAI or the appropriate liaison unit (which will send the case to the IFAI).If the person wishes to appeal the IFAI's decision, he or she may then take the case before the courts.

The transparency law did not provide such detailed rules and mechanisms for the other major government entities-including the judiciary, Congress, the National Human Rights Commission (Comisin Nacional de Derechos Humanos, CNDH) and the Federal Electoral Institute (Instituto Federal Electoral, IFE)-but rather left it to each to develop its own.[76]As we show in detail below, the resulting regulations and mechanisms are of varied quality and have had different degrees of success in opening these government institutions.

One serious shortcoming of all implementing regulations is that they grant reviewing authority to essentially the same people who must provide information.In the judiciary, for example, the authority lies with a special commission appointed by the Judicial Council (a body made up of lawyers, judges, and Supreme Court justices), except for cases involving information in the possession of the Supreme Court, in which case it is a commission formed by the Court itself.In the Congress, it is commissions made up of legislators in each house.As for autonomous agencies, in the IFE, there is a commission made of electoral counselors, and in the CNDH, the reviews are conducted by the director of one of the commissions' investigative areas.Given that the members of the different review panels are members of the same entity that must provide information, it can be difficult for the petitioners to obtain an impartial hearing.

In theory, it is possible to appeal decisions to withhold information before the courts, since Mexican law makes it possible to seek an injunction (amparo) against any act by the federal government (except for acts by the Supreme Court).[77]But, this procedure is prohibitively long, expensive, and burdensome, and therefore not a viable option for most Mexicans.(A second appeal option exists in cases involving decisions by the IFE, which may be appealed before the Federal Electoral Tribunal (Tribunal Electoral del Poder Judicial de la Federacin, TRIFE).)[78]

Results: Progress and Obstacles

The Executive

Positive Impact

Within the executive branch, the transparency law has had a dramatic impact on access to official information in a wide range of areas.

Compliance with the law's transparency obligations has improved steadily since it went into effect.According to evaluations conducted by the IFAI, compliance has increased from 32 percent in 2003, to 62 percent in 2004, and to over 90 percent in 2005.[79]During this time, agencies within the executive have received over one-hundred thousand information requests and responded to almost 90 percent of them.[80]

The IFAI has played a crucial role in pressing for greater transparency within the executive.It has received an increasing number of complaints against federal agencies that denied access to information requests-from over 600 in 2003 to over 2,300 in 2005.[81]In nearly three-quarters of these cases, the IFAI has found in favor of the individual or organization filing the complaint and instructed the government entity to provide the requested information.[82]

The IFAI has successfully brought about the disclosure of a wide array of information previously inaccessible to the Mexican public.For example, it ordered the National Commission on Nuclear Security (Comisin Nacional de Seguridad Nuclear y Salvaguardias) to provide information on the enterprise that provided nuclear fuel used in a nuclear facility, as well as its country of origin.It required the National Commission on Social Security (Comisin Nacional del Sistema de Ahorro para el Retiro) to provide an individual information on his own social security accounts.It compelled the National Council on Science and Technology (Consejo Nacional de Ciencias y Tecnologa) to inform how fellowships are assigned.And it obliged the Ministry of Foreign Affairs (Secretara de Relaciones Exteriores, SRE) to inform someone who did not pass the selection process to be part of the Mexican foreign service the results she and others obtained on the exam.[83]

As a result of the transparency law, Mexican society has obtained unprecedented access to information necessary to monitor government institutions and expose corruption. According to the staff of the liaison unit within the Ministry of Public Administration (Secretara de Funcin Pblica, SFP), for example, the obligation to publish vacancies and the number of employees and their salaries has made it easier to identify "aviadores"-government employees who do not actually work but got paid every month.The law has also made it easier to detect corruption in the granting of concessions and licenses by the public administration.[84]

Information obtained through the IFAI has also been useful in unveiling corruption scandals related to the inappropriate use of public funds.For example, a Mexican human rights organization, FUNDAR, was able to document the misallocation of 200 million pesos (approximately U.S.$19 million) in the federal budget earmarked to combat and prevent HIV/AIDS. The NGO submitted more than two hundred information requests to various federal agencies, including the Ministry of Finance and Public Credit and the Department of Health, to monitor how the extra funds were actually spent.The information they obtained revealed that the Department of Health had distributed the budget increase among hospitals that had budget crises and did not necessarily have experience in working with HIV/AIDS patients.Furthermore, they found that three out of seven of these hospitals had spent the entire extra allocation on "general services," including security, cleaning products, and banking services.[85]Since the Ministry of Finance and Public Credit labels money as spent the moment it is transferred, they considered the money to have been spent on HIV/AIDS because the funds had been labeled as such.Given this scenario, the information obtained through information requests on how the money was actually spent helped publicize that the extra budget for HIV/AIDS was not getting to patients who desperately needed it, and it demonstrated the flaws in a system that allows such lack of accountability.

Another example of the misuse of public funds was the "Provida scandal."In January 2003, thirty million pesos (almost U.S.$3 million) of the budget for HIV/AIDS were allocated by the government to the National Pro-Life Committee (Comit Nacional Provida), a conservative NGO that would build ten Centers for Assistance to Women (Centrosde Ayuda para la Mujer).With the purpose of monitoring how the money had been spent, six NGOs requested a copy of the agreement by which the Department of Health granted Provida the funds, and the periodic reports presented by Provida on how the money had been spent.A private company that audited the files concluded that the documentation showed that 90 percent of the funds were irregularly spent.For example, over 95 percent of the funds included in the category "Help for Women" in the budget was spent in hiring a company that organized parties, which had as directors the same people that were directors of Provida, and there were receipts that demonstrated that part of the money destined to combat HIV/AIDS was used to purchase Cartier pens, clothes for men and women, and women's underwear.[86]

Remaining Obstacles

A key to the effectiveness of the transparency law is the ability of the IFAI to operate independently of political pressure-especially if that pressure comes from the institutions in possession of information that should be public.The IFAI has been able to operate without undue interference thus far.Yet it remains vulnerable to being undermined or even sabotaged by future administrations.

One source of vulnerability is the method of selection of the commissioners who run the IFAI.Under the current structure, the president has sole authority to appoint IFAI commissioners.While the Senate may "object" to the president's selections, it cannot actually block any appointment.Thus, a president who is not committed to transparency could appoint commissioners who would be unwilling or unable to apply the law effectively.[87]

Another source of vulnerability is the budget.Currently, the IFAI proposes its budget to the president, who incorporates it into the executive's budget and sends it to Congress for approval.So far, the IFAI has received an annual budget of over 200 million pesos (U.S.$20 million) every year since its creation.[88]However, an unsympathetic president (or Congress) could decrease this budget in the future and thereby undermine the IFAI's ability to carry out its work.

A final source of vulnerability is the fact that the IFAI has no authority to enforce its decisions or sanction officials who refuse to comply with them.While government entities have generally complied with its decisions so far, when they have not, the information petitioners have had to turn to the courts to force compliance.[89]In one case, for example, a former Mexican consul in the United States sought certified copies of documents from the Foreign Ministry and Attorney General's Office regarding the case of a Mexican fugitive in Texas. (The consul already had unofficial copies in his possession).After both entities denied him the certified copies, he appealed to the IFAI, which ruled in his favor.Yet still the entities refused to provide the copies.Consequently he took his case to court and won court orders for the entities to provide the copies.[90]

When it comes to sanctioning officials who fail to comply with its instructions, the IFAI must rely on the SFP.Although IFAI officials report that the SFP has been supportive during the Fox administration, there remains a structural deficiency in the system that could undermine SFP's ability to sanction public officials for failing to comply with IFAI instructions in the future.[91]Cases are decided by an "internal control organ" (organo interno de control) in each executive agency.Formally, these organs depend on the SFP, but under the transparency law, the head of the internal control organ is simultaneously a member of the agency's Information Committee, which is responsible for reviewing access to information decisions adopted by the liaison unit in each office.Consequently, in practice, the law is asking this person to potentially review his or her own decisions or those of his or her colleagues.

While IFAI officials insist that these vulnerabilities have not been exploited so far, they also report encountering growing resistance among certain institutions to comply with information requests-including, in particular, the Attorney General's Office and the Ministry of Finance and Public Credit.[92]Another institution that has been resistant to collaborate with the IFAI has been the Secretary of Defense (Secretara de Defensa Nacional, SEDENA).For example, in May 2004 an individual asked SEDENA for information on how many cases of human rights violations by the military were pending before international bodies.In June 2004 SEDENA answered that there were no international proceedings against Mexican military officials.The answer consisted of one word: "none" (ninguno).The person who had requested information presented an appeal before the IFAI because she knew of at least four cases that were pending before the IACHR. The IFAI decided to reverse SEDENA's decision and ordered its Information Committee to grant access to the information requested.[93]Even though the IFAI's resolution held that some information on cases pending before the IACHR is available on the Internet and can therefore not be denied by SEDENA, in its response of October 2004, SEDENA only referred to two cases.

Another example of SEDENA's resistance to providing information has been documented by the Atalaya Program of ITAMUniversity.In 2003, the Atalaya Program sought information on cases in which the CNDH had signed agreements with federal entities regarding their responsibility in human rights cases.After the CNDH denied access to its files, the Atalaya Program requested the information from twenty-four federal government agencies, including SEDENA.The Atalaya researchers obtained information from some of them, either directly or after an appeal before the IFAI, but not from SEDENA.[94]In December 2003, the Atalaya Program requested access to documentation on agreements between SEDENA and the CNDH, and SEDENA responded that the information should be requested from the CNDH.After an appeal, the IFAI decided SEDENA should provide a "public version" of the requested files.[95]Yet SEDENA still refused to provide access to the files.Instead, it only gave the Atalaya Program a document with basic information on five cases.

The Judiciary

The transparency law and its implementing regulations issued by the Supreme Court and the Judicial Council have increased transparency at the top levels of the judiciary. Both have complied with their transparency obligations by posting the required information on their Web sites and by responding to most requests they have received for specific information.[96]The Supreme Court has also promoted transparency by broadcasting its public hearings on television and the Internet.

Unfortunately, however, a culture of secrecy prevails, for the most part, in the work of Mexican judges.[97] Part of the problem is that many judges still believe that access to information and transparency belong to common law judicial systems and are incompatible with Mexico's legal system.[98]Another factor limiting access to judicial information is that decisions to deny information are never subject to outside review, but merely to review by the commissions formed by the Supreme Court and the Judicial Council.

One crucial area where access to information remains a problem within the judiciary involves obtaining copies of judicial rulings.While some decisions are now posted on the Internet, most are not.[99]In some cases, the decisions can be found in certain public libraries, yet tracking them down can be a difficult and time-consuming process.As a result, lawyers and even judges find it difficult to locate and learn from previous rulings that might be relevant to their case.Consequently, there is a greater risk that different courts-or even different judges within the same court-will adopt contradictory decisions without even being aware that they are doing it.

The judiciary also continues to deny public access to information that is crucial for promoting greater accountability within the justice sector by arguing that it must be considered privileged or confidential information.For example, resumes and qualifications that lead to the appointment of judges are not available to the public.This is problematic because public disclosure of judges' qualifications and periodic evaluations could allow citizens to better monitor the quality of decision makers in the judicial system and may eventually increase their trust in the institution.

Other information that is unavailable is the number of cases before each court, their average duration, the number of accused who are actually imprisoned, and the percentage of decisions that end in a guilty verdict.This information is important for monitoring the courts' productivity, as well as to identify possible corruption cases.[100]

Congress

Mexico's Congress has traditionally worked in a very obscure fashion, denying the public basic information about how members of Congress voted, what was being discussed, when meetings were taking place, and the reasons for adopted decisions.The transparency law has helped to expose the legislative process to greater public scrutiny, in large measure by salvaging previous initiatives that had proven to be largely ineffective in practice.

For example, both houses of Congress had adopted systems of electronic voting to help curb the problem of chronic absenteeism (the House of Representatives in 1998, and the Senate in 2001).Yet members of Congress continued to be absent during debates and no one had access to their voting records.[101]

Another past initiative was a 1999 law in which Congress imposed upon itself the obligation to televise its debates and provide the public with greater information about its activities.[102]Yet the law did not come accompanied by any mechanism of enforcement and consequently, had little impact.[103]

The transparency law gave new life to both of these initiatives.Unlike the previous electronic voting initiatives, the law includes more detailed transparency obligations about what information must be provided to the public, including the obligation to inform on the voting records.And unlike the 1999 law, the new law and its implementing regulations create a mechanism for pressing the Congress to fulfill its transparency obligations and provide information: individuals and organizations can request information from a liaison unit (and appeal its decisions before a reviewing panel) in each house.

Both houses of Congress have received thousands of information requests and provided the requested information in a timely manner in the vast majority of cases.[104] Currently, both the Senate and the House of Representatives also comply with transparency obligations imposed by the transparency law by providing more information in their Web sites.[105]Nonetheless, a recent analysis by the Mexican organization CIDE (Centro de Investigacin en Docencia Econmica)on transparency in both houses shows that the Senate only complies with 45 percent of its transparency obligations and the House of Representatives complies with 66 percent.[106]

One important area where Congress is not completely meeting its transparency obligations involves its failure to publicize parliamentary debates sufficiently in advance so as to allow civil society groups, journalists, and members of the general public to monitor its handling of pending legislation.[107]Consequently, it is more difficult to generate meaningful public discussion of this legislation at the critical moments when Congress is debating it.

Another area where transparency remains lacking-one not covered by the law's transparency obligations-involves the fact that members of Congress need not disclose any income they receive from other professional activities.Consequently, it can be difficult or impossible to detect potential conflict of interest that legislators might have when debating and voting upon legislation affecting parties with whom they have financial relationships.

Perhaps the most glaring shortcoming of the transparency law's implementation in Congress is the failure to apply it to a central component of legislative activity in Mexico-the parliamentary groups.These groups, composed of the congressional representatives from each political party, receive substantial funds from Congress, based on the proportion of representatives they have in each house.In 2005, for example, the total budget for these parliamentary groups in Congress was 755.5 million pesos (over U.S.$70 million).[108]When journalists from Reforma newspaper requested information on how the parliamentary groups had spent this money, Congress refused it on the grounds that it was the political parties (which are not subject to the transparency law) that spent the money.[109]

The significance of this shortcoming is compounded by a larger structural problem with the national legislature that undermines its accountability to the Mexican public.Currently, members of Congress are barred from immediate re-election.[110]As a result, their future careers in public office depend not so much on how they perform in the eyes of the voters who elected them, but rather on whether their party will select them to run for other offices.The result is a perverse dynamic in which legislators are more accountable to their parties than to the people they represent.

This arrangement undermines the purpose of the transparency law in two ways.First, legislators have little incentive to provide information to the public regarding their legislative activity, since they have no need of convincing voters that they should be maintained in their posts.Secondly, it increases the power and relevance of the parliamentary groups, which are not subject to the transparency obligations established by the new law.

Electoral Federal Institute (IFE)

The Electoral Federal Institute (IFE) has played a decisive role in Mexico's transition to democracy by ensuring free and fair elections.The transparency of the institution is critically important to ensure electoral processes continue to produce legitimate, democratic governments in the future.

The transparency law and its implementing regulations have served to reinforce steps that the IFE had already been taking since 1998 to ensure transparency.For example, the IFE had already established a series of norms that provide for the disclosure of reports presented to the IFE by political parties, as well as information on political parties' finances.[111]The transparency law strengthened these norms by introducing a number of new features: uniformity, minimum standards, and the obligation to respond to individual requests for specific information.[112]

Today, the IFE complies with its transparency obligations by posting critical information on its Web site, including its budget, the contracts it has signed, and the amount of public funds received by political parties.[113] Thanks to the transparency obligations, the IFE is now providing information related to the electoral process in 2006 that had never been made public before.This includes information on the campaign expenses of the candidates and the number of television spots each has bought.[114]The IFE has responded to over a thousand requests for information, mostly related to political parties and the office within the IFE that is in charge of monitoring their expenditures.[115]

One of the IFE's most important contributions has been to obtain information from political parties, which are, as noted above, not directly covered by the transparency law.In 2003, for example, a journalist requested that the IFE provide information on the income earned by political parties' leaders.When the IFE denied the request on the grounds that it did not have that information in its files, the journalist appealed to the Federal Electoral Tribunal (Tribunal Electoral del Poder Judicial de la Federacin, TRIFE), which has jurisdiction to review any decision adopted by the IFE.The TRIFE ruled in the journalist's favor, finding that his right to obtain information through the IFE related to the electoral process extended to information regarding the use of public funds by political parties and national political groups.[116]In a second case presented by the same journalist, the TRIFE extended this right to information to include the salaries earned by leaders of political parties that had lost their party registration.[117]According to the journalist who presented both cases, pressure on political parties made them publicize this information on their Web sites even before the TRIFE published its decisions.[118]

In an effort to fulfill its obligations under the transparency law, the IFE produced a self-evaluation in July 2004 in which it found that the institute's existing legal framework did not sufficiently ensure access to information held by political parties.The IFE recognized that recent initiatives, such as the IFE's obligation to disseminate reports sent to it by political parties and the recent TRIFE decisions, have promoted greater transparency of political parties.Nevertheless, the report recognized, these advances would not be consolidated if they were not incorporated into a new legal structure.[119]

As a consequence of this self-assessment, as well as the TRIFE rulings in the cases brought by the journalist, in 2005, the IFE issued new implementing regulations for the transparency law.These regulations created a mechanism by which the IFE may request information from political parties.[120]

However, the effectiveness of this mechanism remains limited by the fact that the IFE has no power to sanction political parties when they refuse to comply with information requests.The only measure available in these cases is to publicize the parties' lack of compliance.The threat of bad publicity could be a powerful way of exerting pressure (as in the example above).However, there is still no way of ensuring genuine and full compliance with requests.

National Human Rights Commission (CNDH)

The CNDH, the autonomous agency charged with "protecting, observing, promoting, studying, and divulging" human rights in Mexico, possesses a wealth of important and valuable information on the rights practices of state institutions. Public access to this information is crucial for several reasons.First, it permits Mexican civil society to know about human rights abuses and to monitor their elected officials' efforts to address them. Second, it helps policy analysts, commentators, and ordinary voters to evaluate public policies from a human rights standpoint.Finally, public access to the CNDH's information allows Mexican society to monitor the work of the CNDH itself.

Prior to the transparency law, the CNDH was already one of the federal entities that disclosed the most information to the public.And the amount of information it discloses on the Internet has increased dramatically since the federal law came into effect.[121]

Yet, even today, there are still limits to obtaining information.As with other state entities, the CNDH has applied confidentiality norms in a blanket fashion that limits access to basic information. For example, in one case, while the IFAI explicitly said that all information related to salaries earned by public officials had to be made public, the CNDH considered that information regarding how much bonus salary was earned by officials working within the CNDH at the National Human Rights Center (Centro Nacional de Derechos Humanos) was confidential.[122]A second example refers to an information request by an NGO that asked the CNDH for copies of the resumes of members of the CNDH advisory committee.[123]Instead of providing a public version of the resumes with the information that the CNDH considered "personal data" omitted, it denied access to the entire document.[124]

Furthermore, public access to information regarding the work of the CNDH is limited in significant ways.The CNDH considers all cases that it has under review to be strictly confidential.[125]While it makes sense to limit public access to sensitive information regarding ongoing investigations, the CNDH applies this confidentiality rule in such an absolute fashion that even the individuals who filed specific complaints are denied access to their own files.For example, in 2005 the CNDH argued that "information in files under study by the CNDH is privileged information" and denied a person access to his own file (related to the violation of his right to health, right to information, and reproductive rights as a consequence of forced sterilization).[126]

Obtaining information on concluded cases can also be difficult.[127]The CNDH's implementing regulations of the transparency law allow its staff to reserve information on concluded cases for twelve years.[128]Complete information is only available on recommendations, but on average, between 2003 and 2005, these constitute less than 1 percent of the all concluded cases.[129]Many more cases are resolved through settlements between the CNDH and the state agency in which the agency accepts its responsibility.

When, in 2003, the Atalaya Program of ITAMUniversity requested access to the files of some concluded cases, the CNDH denied it, arguing that the Law on the CNDH and its implementing regulations of the transparency law allowed it to consider such information privileged.[130]The Atalaya Program then presented an injunction, challenging the applicable regulations.A few weeks before the Supreme Court was going to decide the appeal, and two years after the initial request, the CNDH allowed them to see the files that were mentioned in the injunction.In February 2006, the Supreme Court decided the case was moot, and did not address whether the challenged laws were constitutional.[131]

Although the CNDH does provide some aggregate data in its annual report about the cases it handles, this information tends to be broad and vague.Consequently, it is impossible to know which human rights issues are brought to it and evaluated by it, which government officials and agencies are accused of violating human rights, which cases it decides to close and why, what happens to closed cases, and how government authorities react to most complaints and decisions by the CNDH.

State Level Institutions

The transparency law only applies to federal agencies.[132]Consequently, each of Mexico's thirty-one states and Mexico City (Distrito Federal) must pass its own transparency law that applies to state agencies.In November 2005, twenty-seven states and Mexico City, as well as some municipalities, had transparency laws.[133]

But the positive impact of having all these laws has been undermined by a variety of factors.Most of the local laws and implementing mechanisms do not promote the same high level of transparency established by the federal law. In some of the states, access to official information is discretionary and supervising institutions are ineffective.[134]

In many of the states, the transparency laws do not apply to all government entities.Some exempt the judicial branch entirely, for example, or fail to establish effective implementing mechanisms within the judiciary.As a consequence, most state judiciaries in Mexico remain opaque, and it is difficult to access information in their possession.[135]Since most cases are judged in local jurisdictions, the lack of access to judicial information at the state level is extremely harmful for openness and transparency in Mexico.

Another common problem is the cost of copies, which in most states is prohibitively high.While the IFAI has held that each copy should not cost more than half a peso, less than 10 percent of the states have the same limit.In extreme cases, such as Michoacn, each copy costs more than sixteen pesos.[136]In states where information is not given electronically, the high cost of copies will clearly limit access to information of those who cannot afford those prices.

One reason for the weakness of the state laws is the lack of an organized constituency that can promote the passage and effective implementation of transparency legislation. As previously explained, the active participation of civil society groups was decisive in the creation of the federal law. But active civil advocacy is missing in many states.[137]

The IFAI has helped states confront some of these obstacles by preparing a comparative analysis of state laws and by establishing an office to foster collaborative activities with local governments.[138]Its most recent initiative is Information System Mexico (Sistema de Informacin Mxico, INFOMEX), which is funded by the World Bank.INFOMEX is open to every state entity that decides to participate in it, and its purpose is to create a system to obtain information from state governmental entities through the Internet.As of February 2005, thirteen states and Mexico City had signed agreements with IFAI to participate in it.[139]

The Opening of Secret Government Archives [140]

The Release of Documents

In November 2001, President Fox decided to "open" government archives that contained information related to past human rights abuses.Specifically, the president instructed the Interior Ministry to deposit in the National Archive all the documents generated by two defunct agencies that had directed internal surveillance and security operations-the Federal Security Directorate (Direccin Federal de Seguridad, DFS) and the General Directorate of Political and Social Investigations (Direccin General de Investigaciones Polticas y Sociales, IPS).The president also instructed the Interior Ministry to collect and deposit in the National Archive documents from other government agencies, including the Secretary of Defense (Secretara de Defensa Nacional, SEDENA), that contained information related to Mexico's "dirty war."[141]In June 2002 these instructions were carried out and some eighty million documents were deposited in the National Archive.

These files contain detailed information on human rights violations committed during Mexico's "dirty war" as well as insights into the command structure and modus operandi of the institutions that carried them out.The availability of this information removed the cloak of secrecy around the security apparatus and provided Mexican society insight into the inner workings of the old regime.Journalists were able to investigate and obtain documentation on what had happened during those years.Victims of human rights violations and their families were able to review the files that government agencies kept on them.It was finally possible to document a part of Mexican history that had been, until then, mostly based on testimonies.

Most of this information is held in the first two galleries of the National Archive.The first gallery contains documents of the DFS, and the second gallery contains documents of the IPS.(The second gallery includes documents from various offices that were subordinated to the Interior Ministry, including the DFS and SEDENA.)

Limits on Accessibility

Management of the Archive

To obtain material, inquirers have to submit specific written requests to the archive staff listing topics of interest, and then wait for relevant documents to be retrieved.The determination of which documents are relevant is made by the archive staff-usually the director of the particular collection, who is ultimately responsible for which documents are shown to researchers.

The arrangement is particularly problematic in the case of the DFS collection, where the official in charge seems to have complete discretion with respect to what information is provided to inquirers.These decisions are not subject to any type of review.In 2003, a researcher had asked for photographs taken at student demonstrations in 1968 and the director of the collection refused to give her the notes that were stapled to each picture.When she challenged him to show the legal basis for this refusal, he responded only that it was his own decision.He then tore the photographs from the pages stapled to them, and only gave her the pictures.[142]The then director of the National Archive acknowledged his authority to make such decisions, claiming, according to one press account, that he had "absolute discretion" to determine which documents a researcher could see.[143]

Giving one person full discretion over what documents researchers see is problematic for several reasons.One is that this person could become vulnerable to pressure from people who might wish to prevent the release of incriminating material.Another is that this person might be tempted to abuse his or her authority to deny access to documents that should be public.Currently, this risk is particularly pronounced in the case of the DFS archives, given that the director of the collection was himself a DFS employee for decades.

Overly Broad Application of Privacy Protections

The released documents in the National Archive contain a great deal of information that contains "personal data" and therefore cannot be released to the public.Unfortunately, there are no clear guidelines in place to help the archive staff determine what information must remain confidential, and how to handle documents containing confidential information.As a result, researchers are routinely denied access to documents that either contain no personal data, or which could easily be released in a public version, from which the private information is excised.

For example, one researcher was initially denied access to a file on the grounds that it contained someone's personal data and therefore could only be released with the authorization of that person's family.[144]After the researcher obtained the necessary authorization, she was able to access the file and found that, while it did indeed contain some documents with personal data, it also contained documents that should have been accessible.For example, one was a DFS document describing a confrontation between members of an insurgent organization and government agents in which five civilians had been killed and two detained.[145]The only information in the document that could constitute personal data was the names of those killed and detained; the archive staff could easily have prepared a public version of the document by excising those names.[146]

However, care also needs to be taken in the provision of a public version of a document that contains private information. According to researchers interviewed by Human Rights Watch, when the National Archive did provide a public version of files, there was so much information eliminated from the text that it became useless for their research.[147]

Lack of Indexes

Another major obstacle to accessing documents in the National Archive is that more than 50 percent of the collections in the archives is not indexed or catalogued.As one experienced researcher put it, releasing the files without providing an index is "almost like not making them accessible at all."[148]

When investigators are researching human rights issues in the two relevant galleries of the National Archive, they have no way of knowing where to look for information relevant to their research-or of knowing, for that matter, whether the archive staff is providing all the information that it should.The first gallery has a catalogue, but it is not entirely available to the public, and most of the information in the second gallery is not even indexed.[149]Consequently, not even the archive staff knows what information can be found in at least 60 percent of the boxes in their charge.[150]

The impossibility of knowing what information is available and how to find it has discouraged many inquirers from using the National Archive for their research.One journalist told Human Rights Watch, for example, that he had spent two weeks in the National Archive scouring through 1,500 to 2,000 files, of which only 5 percent were useful for his research.The journalist was certain that if he had been provided an adequate index, he would have found the relevant documents in far less time.[151]

Missing Documents

Another worrying aspect of the declassified material is the gaps that appear to exist in the documentation that has been turned over to the National Archive.For example, one journalist found a series of documents in the National Archive that refers to a ceremony that took place at Military Base Number One on October 2, 1979.The ceremony was organized by the military "in the memory of those that died in compliance of their duty on October 2, 1968, in the TlatelolcoPlaza," and there was an order to invite members of the "Olimpia Battalion" to the ceremony.There is no other reference in any other document to the existence of the Olimpia Battalion.[152] There is only one document from SEDENA that recognizes that there were nineteen military officials injured, but there is no reference to military officials who died during that incident.

Another example of a glaring gap in the archival material involves the DFS reports on the National Committee for the Defense of Disappeared, Persecuted, and Exiled Prisoners (Comit Nacional Pro Defensa de Presos Desaparecidos, Perseguidos y Exiliados), which later became known as the Eureka Committee.Although the "dirty war," repression, and government monitoring of civil organizations continued, and the DFS files in the first gallery have information up to 1985, the DFS reports on this Committee mysteriously end at the beginning of 1979.[153]

The Power of the Special Prosecutor's Office to Reserve Information [154]

The Special Prosecutor's Office has the authority to separate information that it is using for its investigations and prohibit researchers from having access to it.There are currently three hundred files that may not be seen by the general public.[155]

By setting aside information on investigations that have already been concluded, the Special Prosecutor's Office has made it harder for investigators to access information that must be public.For example, a researcher recently tried to obtain information from boxes in the National Archive on two "disappearance" cases (Ignacio Salas Obregn and Jess Piedra Ibarra) in which the special prosecutor had already concluded the investigations and had presented the cases before a judge.Yet the information remains reserved by the Special Prosecutor's Office, and therefore entirely inaccessible to the public.[156]

Applying the Transparency Law to the Archives

Since the National Archive is a federal agency, it is subject to the IFAI's supervision on transparency matters.According to the IFAI, since January 2005 the Archive complies fully with its transparency obligations.[157]Yet several experienced researchers told Human Rights Watch that the federal law has not, in fact, contributed nearly as much as it could to increasing access to information in the National Archive.[158]

Guidelines on archiving issued by the IFAI and the National Archive have not led to the creation of a useful index of the documentation held in the National Archive.And the IFAI's interpretations of the transparency law have not been applied by the National Archive staff.For instance, the transparency law provides that information that is relevant for the investigation of gross human rights abuses or crimes against humanity may not be classified as privileged information.The IFAI has interpreted this to mean that, in these cases, not even the preliminary stages of a criminal investigation (averiguacin previa) may be considered privileged information.[159]Yet, as previously mentioned, archive staff maintains information on human rights cases unavailable to the public, even after the Special Prosecutor's Office has concluded its investigations.

Not only does the Archive staff classify some information as privileged per request of the Special Prosecutor's Office, but it also denies access to other information related to these issues.When a researcher argued that she should have access to files in the Archive in order to research "disappearance" cases during Mexico's "dirty war" because information on past human rights abuses may not be considered privileged, the Archive's director told her that only "competent authorities" could carry forward such investigations.[160]Although the director offered to consult with the IFAI as to whether this was the proper interpretation of the transparency law, the researcher told Human Rights Watch that she never heard back from the Archive staff on this matter.[161]And, although the Archive's director told Human Rights Watch that she and her staff did not know when to classify what constituted a crime against humanity, they had not requested guidelines from the IFAI on how to address this issue.[162]

Transparency and Human Rights

The transparency law and the opening of secret government archives have allowed many people in Mexico to exercise a fundamental human right:the right of access to official information.By exercising this right, individuals have been able to expose abusive practices from the past.By providing elements to promote accountability, the right has served as a vehicle to strengthen democracy in Mexico.

According to those who have tried to document human rights abuses committed during the "dirty war" in Mexico, there has been a major change in the last years.Prior to the transparency law and the opening of the archives, Mexican society had testimonies that narrated what had happened during the "dirty war."Now, it is possible to obtain evidence that corroborates those testimonies.For example, in February 2002,El Universal, a daily newspaper in Mexico, published for the first time photographs that proved that student protestors had been massacred by security forces on October 2, 1968.These twelve pictures with images of mutilated corpses and crushed skulls constituted, according to prominent Mexicans interviewed by El Universal, evidence of the government's campaign against dissidents, and of its cover-up of these activities.[163]

In addition to corroborating existing testimony, the access to government documents has shed new light on these past abuses.It has, for example, made it possible to see how the government financed the "dirty war" activities through documents in which successive presidents authorized "unforeseen" expenses of the DFS and General Directorate of Social and Political Investigations (Direccin General de Investigaciones Polticas y Sociales) to be used in "confidential" commissions.[164] The declassified documents have also shed light on the relationship between the news media and the Mexican government during the "dirty war."A researcher has found, for example, documents that show that media owners expressed their preferences to the government about which president should replace Daz Ordaz in 1969.Other documents show how the government used the provision of paper to newspapers to control their publications.

The IFAI has proven to be a good ally at times for researchers seeking information on human rights issues.For example, information provided by the Attorney General's Office (Procuradura General de la Repblica,PGR) after the Mexican NGO LIMAC requested information through the IFAI made public previously unknown information on the 1971 student massacre.[165]For the first time, people read about the existence of "Operation Old" (Operacin Viejo), in which 250 police and secret service agents participated.Their role was to create a barrier around the place where the events took place, in order to facilitate the massacre carried out by a paramilitary group named Los Halcones.This and other documentation used by the Special Prosecutor's Office provided evidence that in June 10, 1971,Los Halcones worked closely with the Mexican security forces.After they obtained this information, the NGO published it in their Web site and in news articles.[166]This publicity led to the dissemination of information that is of public interest, and to the possibility of evaluating the work of the Special Prosecutor's Office in respect of how justice for the victims of the massacre was pursued.

The IFAI has made several important decisions requiring entities within the executive branch to provide information to the public.But some institutions, such as SEDENA, have not been very responsive.For example, in 2004, a journalist requested information from SEDENA related to the "dirty war": the list of military prisoners between 1973 and 1976; the list of civilians who were held at Military Base Number Onebetween 1972 and 1976; and the names of the director, deputy director and chief guard of the prisonbetween 1970 and 1982.SEDENA provided the name of the director, but held that there was neither a deputy director nor a chief guard at that time.It also answered that there were never civilians in that prison, and that it could not inform about military prisoners since that information was privileged and confidential in order to protect their private lives.

After the journalist appealed, the IFAI conducted an investigation and discovered that the Special Prosecutor's Office has initiated various investigations concerning civilians who were supposedly held in clandestine prisons at Military Base Number One, and that the CNDH had found that four civilians were mentioned in the prisoners list of Military Base Number One.It therefore decided to reverse SEDENA's denial of information regarding the existence of civilians in that military prison, and held that if there is no information available, it must follow the legal procedure established by the transparency law to report that there is none.Regarding information on military personnel held in the prison, the IFAI held that it may not be considered privileged information since it does not risk the life, security or health of any individual.[167]

After the IFAI resolution, SEDENA informed the journalist that it would provide the list of military prisoners at Military Base Number One, but that it did not have any files with information on civilian prisoners held there.[168]Nevertheless, the journalist was able to then find a document in the DFS files at the National Archive, signed by Luis de la Barreda Moreno, head of the DFS at that time, that lists forty-one civilians that were detained by the military, and specifically says that one of them was going to be sent to Military Base Number One.[169]

In some cases, it is still impossible to obtain information held by certain security agencies without their collaboration.The Center for National Information and Security (Centro de Informacin y Seguridad Nacional,CISEN) denied access to tens of thousands of files prepared by the political police of the PRI, arguing before the IFAI that they were "privileged files."Even if an individual were allowed to see information held by CISEN, this person would not be able to find it.According to a study prepared at the beginning of the Fox administration, CISEN is not an institution but rather a series of interconnected espionage systems.It compiles information on intelligence operations, telephone interventions, credit card accounts, correspondence, and personal activities; but information is located in different places and only people within CISEN have the codes necessary to find all of it.According to the late Adolfo Aguilar Zinser, who served as President Fox's national security adviser, "the spider web can only be unraveled by those who know its secrets, and Fox's government did not dare to take control of CISEN."As a consequence, he concluded that "CISEN continues to serve the individuals and groups of the old regime."[170]

In sum, Mexicans today have unprecedented access to government documents that shed light on abusive state practices.Yet locating relevant information can often be unnecessarily difficult.And key government institutions continue to make it harder-and in some cases impossible-to obtain crucial documentation.

Recommendations

Mexico has made unprecedented progress over the past several years in promoting transparency and access to information.Yet the advances in this area remain quite precarious even today.To ensure that they continue and deepen, the next administration should strive to remove the obstacles that continue to undermine the transparency law.

1) Instruct executive agencies to comply fully with the Transparency Law

The president should make it emphatically clear to all the institutions of the executive branch that they must comply fully with their transparency obligations and collaborate fully with individuals seeking information in their possession.

The administration should also instruct all agencies within the executive to adopt measures that ensure appropriate archiving.It should support the IFAI's efforts to promote improved archiving practices by allocating special funds for the creation of archiving offices within each agency, and providing adequate training to staff who will work in these offices.

The next administration should pay special attention to improving access to documents held in the National Archive.Specifically, it should remove the burdensome procedures established for inquirers to request information. It should immediately provide funds for an independent group composed of historians and archivists to create an index of all available information in the archives, starting with the first and second galleries, which contain valuable information of past human rights abuses.Finally, it should order the Attorney General's Office to require prosecutors, when extracting documents from the archives for prolonged periods of time, to replace them with copies, and return the originals as soon as possible to the public domain.

2) Work with Congress to improve the legal framework for transparency and access to information

To avoid political interference by the executive in the IFAI's work, the next administration should work with Congress to reform the Constitution in order to grant the IFAI constitutional autonomy.

As an autonomous constitutional agency, the IFAI would have the ability to sanction government officials that do not comply with its decisions.It would also be able to review all decisions on access to information adopted by all federal institutions (and not only those within the executive branch).It would submit its own proposed budget to Congress, rather than relying on the executive branch to do so.And its commissioners could be appointed by Congress, rather than by the president.

If the IFAI were to become an autonomous constitutional agency, all government agencies subject to the law would automatically have standing to appealits decisions regarding their management of information.One potential complication that could easily arise is that government agencies would abuse the appeals process to discourage legitimate requests for information.Therefore, when establishingthe IFAI as a constitutionally autonomous agency, it will also be necessary to adopt measures to limit unfounded and frivolous appeals of its decisions by other government entities.

To increase accountability of the use of all public funds, the next administration should promote a reform of the transparency law that would extend the scope of its application to include political parties and all other entities that spend public funds.Such an amendment is critical for enhancing accountability for activities that are public in nature-from the participation of political parties in elections to the provision of public services by private actors.

3) Promote increased transparency in other federal and state entities

The next administration should encourage and actively support initiatives to create better transparency standards and implementing regulations within other branches of the federal government, as well as the autonomous agencies and state governments.

To promote the uniform application of transparency norms and the right of access to information in all government and autonomous agencies, the next administration should work with Congress to incorporate the "principle of maximum disclosure" in the Constitution, as well as specific standards drawn from the federal transparency law.

[49] According to Article 6 of the Mexican Constitution, "The expression of ideas will not be subject to judicial or administrative inquiry, unless it attacks the morals, the rights of a third party, or if it leads to a crime, or affects public order; the right of access to information shall be guaranteed by the state."In addition, Article 8 provided that government officials must respect individuals' right to petition government agencies.According to Article 8, "Public officials and employees shall respect the exercise of the right of petition, provided it is made in writing and in a peaceful and respectful manner; but this right may only be exercised in political matters by citizens of the republic.Every petition shall be replied to in writing by the official to whom it is addressed, and said official is bound to inform the petitioner of the decision taken within a brief period." In combination, these two articles establish the individual's right to request and obtain information held by the government.

The Mexican Supreme Court has further developed the content of this right through interpretation in case law.In 1992 it held that the right of access to official information was a social guarantee related to freedom of expression (Mexican Supreme Court, Tesis 2a. I/92, Semanario Judicial de la Federacin, August 1992, p. 44).In 1996 the Supreme Court decided that citizens had a right to receive truthful information from the government.Information provided by governmental authorities could not be manipulated or incomplete, nor based on specific group or individual interests (Mexican Supreme Court, Tesis P. LXXXIX/96, Semanario Judicial de la Federacin, June 1996, p. 513).In 2000 the Supreme Court went even further, by holding that the right of access to official information is an individual guarantee, which may only be limited on certain occasions by national and social interests, and by rights of third parties (Mexican Supreme Court, Tesis P. XLV/2000, Semanario Judicial de la Federacin, April 2000, p. 72).

[50] In 1995, for example, a nongovernmental organization (NGO) requested information from President Ernesto Zedillo regarding his salary, income, and assets, as well as his allocation of the presidential budget.After waiting a year with no response, the NGO filed a lawsuit against the presidency to obtain the requested information.Even though the NGO won the case, the executive did not disclose all the information requested, and the income of the president remained a secret.See Sergio Aguayo and Paulina Grobet, "Las Violaciones al Derecho a la Informacin de los Mexicanos. La demanda de Amparo de Alianza Cvica contra la Presidencia de la Repblica," Alianza Cvica, 1996, pp. 5-10, 21.

[51]Before a transparency law was passed, the right of access to official information was mentioned in legislation on the protection of the environment.In 1996 the General Law of Ecological Equilibrium and Environment Protection (Ley General del Equilibrio Ecolgico y la Proteccin al Ambiente) was modified to include the right to environmental information in its Articles 159 to 159 bis 6.But the system that was supposed to implement access to environmental information was unsuccessful.In 1999, 64 percent of the requests had not been responded to and 21 percent were not responded to satisfactorily.Isabel Bustillos and Toms Severino, "Diagnosis on Access to Environmental Information in Mexico.Initiative experience by 'Acceso Mxico' [Mexico Access]," in IFAI, Right of Access to Information in Mexico: a diagnosis by society (Mexico City: IFAI, 2005), p. 28.

[52] Julia Preston and Samuel Dillon,Opening Mexico. The Making of a Democracy (New York: Farrar, Strauss and Giroux, 2004), pp. 237,, 261 and 483.

[53] Article 19 of the Universal Declaration of Human Rights; Article 19(2) of the ICCPR; and Article 13(1) of the American Convention on Human Rights.

[54] Human Rights Watch, "Chile: Progress Stalled-Setbacks in Freedom of Expression Reform," A Human Rights Watch Short Report, March 2001.

[55] Joint declaration by Ambeyi Ligabo, U.N. Special Rapporteur on Freedom of Opinion and Expression, Miklos Haraszti, OSCE Representative on Freedom of the Media, and Eduardo Bertoni, OAS Special Rapporteur for Freedom of Expression, December 6, 2004, [online] http://www.cidh.org/Relatoria/showarticle.asp?artID=319&lID=1 (retrieved January 2006).See also Principle 4 of the Declaration of Principles on Freedom of Expression, approved by the IACHR at its 108th regular sessions in October 2000, [online] http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (retrieved October 2005); and United Nations Economic and Social Council, Commission on Human Rights, "Civil and Political Rights, Including the Question of Freedom of Expression: The Right to Freedom of Opinion and Expression.Report of the Special Rapporteur, Ambeyi Ligabo, submitted in accordance with Commission resolution 2003/42," (New York: United Nations, 2003).

[56] IACHR,Report on Terrorism and Human Rights, OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr. 22, October 2002, para. 281.

Although a narrower interpretation of the right of access to information has prevailed in Europe, the European Court of Human Rights has interpreted that individuals had the right to obtain information held by the government if such information affected their private life, and therefore interfered with their right to privacy and family life.The European Court has also established that governments may not restrict a person from receiving information that others wish or may be willing to impart.European Court of Human Rights, "Leander v. Sweden," Case 10/1985/96/144, February 1985, paras. 48 and 74; European Court of Human Rights, "Gaskin v. United Kingdom," Case 2/1988/146/200, June 1989, para. 49; and European Court of Human Rights, "Guerra and others v. Italy," Case 116/1996/735/932, February 1998, paras. 53 and 60.

[57] In Europe it has been recognized since the early 1980s. See Toby Mendel, "Libertad de Informacin: Derecho Humano protegido internacionalmente," Derecho Comparado de la Informacin, January-June 2003, pp. 13-19, [online] http://www.juridicas.unam.mx/publica/librev/rev/decoin/cont/1/cnt/cnt3.pdf (retrieved November 2005).

The Inter-American Court of Human Rights held in 1985 that effective citizen participation and democratic control, as well as a true debate in a democratic society, cannot be based on incomplete information. Understanding freedom of expression as both the right to express oneself, and the right to obtain information, the Inter-American Court of Human Rights held that "freedom of expression is a cornerstone upon which the very existence of a democratic society rests.It is indispensable in the formation of public opinion. () It represents, in short, the means that enable the community, when exercising its options, to be sufficiently informed.Consequently, it can be said that a society that is not well informed is not a society that is truly free."Inter-American Court of Human Rights, "Compulsory Membership in an Association prescribed by Law for the Practice of Journalism (Articles 13 and 29 American Convention on Human Rights)," Advisory Opinion OC-5, November 13, 1985, para. 70.

The OAS General Assembly has held in 2003, 2004, and 2005 that access to official information is an indispensable requirement for a democracy to work properly, and that states have an obligation to ensure access to information. OAS General Assembly Resolution on Access to Official Information: Strengthening Democracy, AG/Res. 1932 (XXXIII-O/03), June 10, 2003, [online] http://www.oas.org/juridico/english/ga03/agres_1932.htm (retrieved October 2005); OAS General Assembly Resolution Access to Official Information: Strengthening Democracy, AG/Res. 2057 (XXXIV-O/04), June 8, 2004, [online] http://www.upd.oas.org/lab/Documents/general_assembly/2004/ag_res_2057_xxxix_O_04_eng.pdf (retrieved October 2005); and OAS General Assembly Resolution on Access to Official Information: Strengthening Democracy,AG/RES. 2121 (XXXV-O/05), May 26, 2005, [online] http://www.oas.org/XXXVGA/docs/ENG/2121.doc (retrieved October 2005).

The Chapultepec Declaration, signed by most heads of state in the hemisphere, and the Lima Principles, endorsed by the OAS and U.N. Special Raporteurs on/for Freedom of Expression, also recognize this consensus. The Chapultepec Declaration determines in its second principle that every person has the right to seek and receive information, and in its third principle that "authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector." It was adopted on March 11, 1994, by the Hemisphere Conference on Free Speech held in Mexico City.Experts and thirty-two government representatives, including former Mexican President Carlos Salinas de Gortiari, endorsed it. See [online] http://www.declaraciondechapultepec.org/english/declaration_chapultepec.htm (retrieved October 2005). Principle 1 of the Lima Principles establishes access to information as an individual right and as a necessary component for a democratic society, and principle 2 establishes that states must make information available in a timely and complete manner. The Lima Principles were adopted in November 2000 by experts on freedom of expression and by the U.N. and OAS Special Rapporteurs on Freedom of Opinion and Expression.The Lima Principles, [online] http://www.cidh.org/Relatoria/showarticle.asp?artID=158&lID=1 (retrieved October 2005).

[58] Principle 1 of The Public's Right to Know Principles on Freedom of Information Legislation holds that "[t]he principle that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances."The Principles on Freedom of Information Legislation were adopted in June 1999 by Article XIX, an NGO working on freedom of expression and access to information, in consultation with organizations in different countries, [online] http://www.article19.org/pdfs/standards/righttoknow.pdf (retrieved October 2005).It was later endorsed by the U.N. and Inter-American systems on human rights.See, for example, IACHR,Report on Terrorism and Human Rights, OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr. 22, October 2002, para. 284; IACHR Annual Report 1999, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression, chapter II, OEA/Ser.L/V/II.111, Doc. 3 rev., Vol. III; and United Nations Commission on Human Rights Resolution 1999/36, U.N. Commission on Human Rights, 56th Sess., E/CN.4/2000/63 (January 18, 2000), para. 43.

[59] Article 19(3) of the ICCPR and Article 13(2) of the American Convention on Human Rights.

The Declaration of Principles on Freedom of Expression states that the right may only be limited exceptionally and such limitations must "be previously established by law in case of a real and imminent danger that threatens national security in democratic societies." Principle 4 of the Declaration of Principles on Freedom of Expression, approved by the IACHR at its 108th regular sessions in October 2000, [online] http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (retrieved October 2005).

According to The Johannesburg Principles, restrictions must be "necessary in a democratic society to protect a legitimate national security interest." Principles 1(d) and 11 of The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, [online]http://www.article19.org/pdfs/standards/joburgprinciples.pdf (retrieved October 2005).The Johannesburg Principles were adopted on October 1995 by experts in international law, national security, and human rights; and were later recognized by the U.N. Special Rapporteur on Freedom of Opinion and Expression and the OAS Special Rapporteur for Freedom of Expression.See Report of the Special Rapporteur Mr. Abid Hussain, pursuant to U.N. Commission on Human Rights resolution 1993/45, U. N. Commission on Human Rights, 52nd Sess., E/CN.4/1996/39 (March 22, 1996), para. 154; and IACHR Annual Report 2003, Vol. III, Report of the Special Rapporteur for Freedom of Expression, chapter IV, OEA/Ser.L/V/II.118 Doc. 70 rev. 2.

[60] Human Rights Watch telephone interview with Juan Francisco Escobedo,Mexico City,Mexico, December 19, 2005.

[61] Sergio Lpez-Aylln, "La creacin de la ley de acceso a la informacin en Mxico: Una perspectiva desde el Ejecutivo federal," in Hugo A. Concha Cant, et. al.,Transparentar al Estado: la experiencia mexicana de acceso a la informacin (Mexico City: UNAM, 2005), pp. 7-10.

[62] For example, in March 2001, the Universidad Iberoamericana organized a seminar for government officials, international experts, media representatives, academics, and civil society representatives to debate which standards had to be met by access to information legislation. See [online] http://www.uia.mx/ibero/noticias/boletines/2001/CS0323.html (retrieved October 2005).

[63] The Oaxaca Group was created when a group of specialists participated in a seminar on the right of access to information in Oaxaca.The name was given to them by New York Times correspondent Ginger Thompson, after she interviewed its members.Human Rights Watch telephone interview with Ernesto Villanueva, President of LIMAC and member of the Oaxaca Group, Mexico City, Mexico, October 24, 2005; and Human Rights Watch telephone interview with Miguel Trevio, Grupo Reforma and member of the Oaxaca Group, Mexico City, Mexico, December 7, 2005.

[64] These elements were: the recognition that the right of access to information was the right of every individual, that the right includes the possibility to gather information in the hands of the government, that government officials have the obligation to provide such information, that exceptions to this right must be minimal, that an autonomous entity should decide if there is a dispute over whether certain information should be public or restricted, and that it must foresee modifications to all other laws that contradict this right.See[online] http://www.amed.com.mx/oaxaca2.php (retrieved October 2005).

[65] Human Rights Watch telephone interview with Issa Luna, vice president of LIMAC,London,United Kingdom, October 24, 2005.

[66] The "principle of maximum disclosure" (in international law) and "the principle of publicity" (in the English version of the transparency law) have the same meaning.

[67] Implementing mechanisms will be discussed in the next section.

[68] This period may be extended indefinitely by the IFAI within the executive branch, if compelled bodies prove that the causes that originated the period still exist.

[69] Article 18 of the transparency law.

[70] Article 3(II) of the transparency law.

[71] See also Articles 20 to 26 of the transparency law.

[72] Article 14 of the transparency law.

[73] Human Rights Watch telephone interview with Juan Francisco Escobedo,Mexico City,Mexico, December 19, 2005.Escobedo is one of the two members of the Oaxaca Group that participated in the negotiations in Congress to elaborate the final version of the law.

[74] On June 11, 2003, President Fox issued implementing regulations that apply to federal executive entities and complement the transparency law.See "Reglamento de la Ley Federal de Transparencia y Acceso a la Informacin Pblica Gubernamental," [online] http://www.presidencia.gob.mx/transparencia/reglamento_LFTAIPG.pdf (retrieved December 2005).

[75] SISI gives individuals the possibility to request information and follow the processing of their request through the Internet.The Web site to access SISI is http://www.informacionpublica.gob.mx/portal.html (retrieved October 2005).

[76]Between April and June 2003 the Supreme Court, the Judicial Council (Consejo de la Judicatura Federal), the Senate, the House of Representatives, the CNDH and the IFE adopted their own implementing regulations.The Judiciary Council and the IFE later on adopted new, improved regulations.See Mexican Supreme Court, Agreeement 9/2003, May 27, 2003; Judicial Council, Agreement 30/2003, June 12, 2003; Acuerdo Parlamentario para la Aplicacin de la Ley Federal de Transparencia y Acceso a la Informacin Pblica Gubernamental en la Cmara De Senadores, April 2003, [online] http://www.senado.gob.mx/transparencia/content/marco/APLFT.pdf (retrieved November 2005); Reglamento para la Transparencia y el Acceso a la Informacin Pblica de la H. Cmara de Diputados, May 2003, [online] http://www.diputados.gob.mx/leyinfo/marco/reg_taipcd.DOC (retrieved November 2005); Reglamento de Transparencia y Acceso a la Informacin de la Comisin Nacional de Derechos Humanos, April 29, 2003, [online] http://www.cndh.org.mx/normat/transp/transp.asp (retrieved December 2005); and Reglamento del Instituto Federal Electoral en Materia de Transparencia y Acceso a la Informacin Pblica, June 9, 2003. The IFE adopted new regulations on June 29, 2005, [online] http://www.ife.org.mx/InternetCDA/TRANSP/despliega_canal_r.jsp?nombreCanal=Reglamentos&nombreCanalPadre=Marco%20Normativo (retrieved January 2006).Since those involved in promoting access to information within the judiciary harshly criticized the 2003 agreements adopted by the Supreme Court and the Judicial Council for not being open enough and promoting a narrow interpretation of the transparency law, new regulations were adopted for the entire judiciary in March 30, 2004 (Reglamento de la Suprema Corte de Justicia de la Nacin y del Consejo de la Judicatura Federal para la Aplicacin de la Ley Federal de Transparencia y Acceso a la Informacin Pblica Gubernamental).See for example, Jos Antonio Caballero Jurez, "La regulacin sobre el acceso a la informacin judicial en Mxico.Algunos comentarios sobre el estado de la cuestin," in Jos Antonio Caballero Jurez et. al. (eds.), El acceso a la informacin judicial en Mxico: una visin comparada (Mexico City: UNAM, 2005), pp. 191-192.

[77] Law that regulates the implementation of Articles 103 and 107 of the Mexican Constitution (Ley de Amparo Reglamentaria de los Artculos 103 y 107 de la Constitucin Poltica de los Estados Unidos Mexicanos), [online] http://www.cddhcu.gob.mx/leyinfo/doc/20.doc (retrieved January 2006).

[78] These cases are described in detail in the IFE section of this chapter.

[79] Information provided to Human Rights Watch by IFAI officials.

[80] There were 108,408 information requests to agencies within the executive, 101,955 of which were filed through the Internet. Of the total number of requests, 96,451 have been answered and 7,345 have been closed for lack of payment or because the person requesting information did not answer the IFAI's request for additional information.The institutions that received the highest numbers of requests for information were the Ministry of Finance and Public Credit (Secretara de Hacienda y Crdito Pblico), the Mexican Social Security Institute (Instituto Mexicano del Seguro Social), the Ministry of Public Education (Secretara de Educacin Pblica), and the Ministry of Environment and Natural Resources (Secretara de Medio Ambiente y Recursos Naturales).All of them have answered at least 83 percent of the requests that were received. IFAI, "SISI statistics on November 24, 2005," [online] http://www.ifai.org.mx/textos/stats.xls (retrieved November 2005).

[81] In 2003, there were 636 complaints, in 2004 there were 1,431, and in 2005 there were 2,353.Ibid.According to Mara Marvn, President Commissioner of the IFAI, this increase is due to the fact that information requests are becoming more complicated, and system users realize that the decision in a majority of cases is to grant information that had been denied.Human Rights Watch interview with Mara Marvn, President Commissioner of the IFAI,Mexico City,Mexico, November 17, 2005.

[82]In 35 percent of the cases, the IFAI requested that the entity that denied information partially provide such information, and in 38 percent of the cases it reversed the agency's decision entirely and ordered it to provide all the information that had been requested. In the remaining 27 percent of the cases, the IFAI confirmed the agencies' decision to deny information.Information provided to Human Rights Watch by IFAI officials.

[83] See Ernesto Villanueva et. al,Importancia Social del Derecho a SaberPreguntas y Respuestas en los Casos Relevantes del IFAI (Mexico City: LIMAC, 2005).

[84] Human Rights Watch interview with staff of the liaison unit in the SFP,Mexico City,Mexico, January 18, 2006.

[85] Human Rights Watch telephone interview with Alicia Athi, FUNDAR,Mexico City,Mexico, December 19, 2005.

[86] Ibid. See also Mara Vallarta Vzquez and Ma. Concepcin Martnez Medina, "Citizens Claim for Transparency and Accountability: Experience in Public Resources Deviation Monitoring," in IFAI,Right of Access to Information in Mexico: a diagnosis by society (Mexico City: IFAI, 2005), pp. 35-46.

[87] The transparency law partially addresses this potential problem through the tenure of the commissioners.Of the five commissioners, two will be in office until September 2006 (and may be re-elected once for a seven-year term); two others will be in office until September 2009; and one will be in office until April 2011.Yet two consecutive administrations could still severely undermine the IFAI through poor selections of commissioners.

[88] Information provided to Human Rights Watch by IFAI officials.

[89] Ibid.

[90] Telephone interview with Humberto Hernndez Hadad,Mexico City,Mexico, December 6, 2005.See for example, decision by Mexico City 16th district judge in administrative matters, file 760/2005, August 16, 2005, and decision by Mexico City 12th district judge in administrative matters, file 801/2005, November 11, 2005.

[91] Human Rights Watch interview with Mara Marvn, President Commissioner of the IFAI,Mexico City,Mexico,November 17, 2005.

[92] Ibid.

[93] Ernesto Villanueva et. al,Importancia Social del Derecho a SaberPreguntas y Respuestas en los Casos Relevantes del IFAI (Mexico City: LIMAC, 2005), pp. 113-124.

[94] Human Rights Watch telephone interview with Sandra Serrano,Mexico City,Mexico, March 1, 2006.

[95] IFAI decision on file 39/04 of May 4, 2004.

[96] By December 2004, the Supreme Court provided information in 28,386 requests for information, which is almost 100 percent of the requests.Mexican Supreme Court, "El Poder Judicial de la Federacin, Salvaguarda del Orden Jurdico,"Press Release number 701, December 15, 2004, [online] http://www.scjn.gob.mx/inicial.asp (retrieved December 2005). The Judicial Council complies with transparency obligations on its Web site-see http://www.cjf.gob.mx/acceso%5Finformacion/ (retrieved December 2005). Between June 2003 and October 2004 it received 638 information requests, which included information on 1,514 issues.Of those, in 1,062 cases the information was provided, including certified copies of judicial decisions, copies of agreements adopted by the Judicial Council, names of people working in certain offices, and names of federal judges that were sanctioned during a period of time. "Informe General de Control y Seguimiento de Solicitudes Generadas por los 61 mdulos de Acceso a la Informacin del Consejo de la Judicatura Federal," [online] http://www.cjf.gob.mx/acceso_informacion/presentacion/INFORMEGENERALDESOLICITUDES.pdf (retrieved December 2005).

[97] Ernesto Villanueva, "Derecho de acceso a la informacin en el poder judicial.Una aproximacin al caso mexicano desde la perspectiva comparada," in Jos Antonio Caballero Jurez et. al. (eds.),El acceso a la informacin judicial en Mxico: una visin comparada (Mexico City: UNAM, 2005), p. 181.

[98] Ibid.

[99] Supreme Court Justice Jos Ramn Cosso told Human Rights Watch that the judiciary is working to have all decisions available online, as well as a search engine.Human Rights Watch interview with Jos Ramn Cosso,Mexico City,Mexico, November 17, 2005.

[100] Ernesto Villanueva, "Derecho de acceso a la informacin en el poder judicial.Una aproximacin al caso mexicano desde la perspectiva comparada," in Jos Antonio Caballero Jurez et. al. (eds.),El acceso a la informacin judicial en Mxico: una visin comparada (Mexico City: UNAM, 2005), pp. 183-185.

[101] Human Rights Watch interview with Benito Nacif, CIDE,Mexico City,Mexico, November 16, 2005.

[102] See Articles 130-135 of the Organic Law of the Mexican Congress (Ley Orgnica del Congreso General de los Estados Unidos Mexicanos), September 1999, [online] http://www.cddhcu.gob.mx/leyinfo/doc/168.doc (retrieved November 2005).

[103] Human Rights Watch interview with Benito Nacif, CIDE,Mexico City,Mexico, November 16, 2005.

[104] Between June 2003 and October 2005 the Senate received 4,792 information requests, 4,696 of which were sent via e-mail. Mexican Senate, "Informe de Gestin de Solicitudes de Informacin Recibidas 2003-2005," October 2005, [online] http://www.senado.gob.mx/transparencia/content/informes/informe_octubre_2005.pdf (retrieved November 2005). The Senate has responded to 96 percent of these requests.Between June 2004 and June 2005 the Senate denied information requested in six (out of 1,763) cases.During that year, there were six appeals, four of which were presented by individuals who did receive information but requested it to be presented to them in another format. Transparency and Access to Information Committee, "Annual Report 2004-2005," June 2005, [online] http://www.senado.gob.mx/transparencia/content/informes/informe_octubre_2005.pdf (retrieved November 2005). The House of Representatives has received, between June 2003 and June 2005, a total of 1,127 information requests.Only 0.53 percent of the cases were considered to request classified information. Liaison unit of the House of Representatives, "Transparency in the House of Representatives. The Liaison's Unit Annual Report 2005," June 2005, [online] http://transparencia.diputados.gob.mx/media/informe2004-2005.pdf (retrieved November 2005).

[104] For the Senate, see [online] http://www.senado.gob.mx/transparencia/content/informacion/index.htm and for the House of Representatives, see [online] http://transparencia.diputados.gob.mx/index.php?node=0 (retrieved November 2005).

[105] Ibid.

[106]Benito Nacif Hernndez et. al., "Informe de Transparencia del Poder Legislativo en Mxico," Monitor Legislativo de CIDE, March 2006, p. 3.

[107] Human Rights Watch telephone interview with David Dvila, FUNDAR,Mexico City,Mexico, November 9, 2005.

[108] Andrea Merlo and Claudia Salazar, "Mantienen opaco gasto de bancadas," Reforma, August 8, 2005.

[109] Human Rights Watch telephone interview with Miguel Trevio,Grupo Reforma,Mexico City,Mexico,December 7, 2005.

[110] In November 2004, two Senate Commissions held that Congress should approve legislative modifications that allow for the re-election of members of Congress.They argued there was no impediment in Mexican law or history to do so, and that it would ensure a more professional Congress and greater accountability.Senate Commissions on Constitutional Issues and Legislative Studies, "Dictamen sobre la Iniciativa con Proyecto de Reformas a los Artculos 59 y 116 de la Constitucin Poltica de los Estados Unidos Mexicanos, en materia de reeleccin legislativa," November 30, 2004.

[111] IFE, "Diagnstico en materia de transparencia y acceso a la informacin pblica," July 9, 2004, pp. 16-19.

[112] Human Rights Watch interview with Electoral Counsel Andrs Albo,IFE,Mexico City,Mexico, January 18, 2006.

[113] See [online] http://www.ife.org.mx/InternetCDA/TRANSP/index_a.jsp (retrieved February 2006).

[114] Human Rights Watch interview with Electoral Counsel Andrs Albo,IFE,Mexico City,Mexico, January 18, 2006.

[115] Information provided to Human Rights Watch by Rodolfo Vergara, head of the IFE liaison unit,Mexico City,Mexico, January 19, 2006.

[116]Human Rights Watch telephone interview with Arturo Zrate,El Universal,Mexico City,Mexico, December 20, 2005.The court decided that if the IFE had obtained information on the salaries of political parties' leaders when it audited the parties, it should have that information in its files (even if the verification was done in the political parties' offices, which was the IFE's argument).If it does not, it should request that information from the political parties, and it should provide it to the person requesting it. Federal Electoral Tribunal, file SUP-JDC-041/2004, June 25, 2004, [online] http://www.trife.org.mx/index.asp (retrieved January 2006).

[117]Federal Electoral Tribunal, file SUP-JDC-216/2004, September 10, 2004, [online] http://www.trife.org.mx/index.asp (retrieved January 2006).

[118] Human Rights Watch telephone interview with Arturo Zrate,El Universal,Mexico City,Mexico, December 20, 2005.

[119] IFE, "Diagnstico en materia de transparencia y acceso a la informacin pblica," July 9, 2004, p. 127.

[120] Article 28(1) of the IFE's implementing regulations.

[121] Human Rights Watch telephone interview with Miguel Pulido, FUNDAR,Mexico City,Mexico, December 7, 2005.

[122] Ibid.See also Oficio No. C1/ST/137/05 by the CNDH, and see for example IFAI decision on File No. 1726/05, November 23, 2005, [online] http://www.ifai.org.mx/resoluciones/recursos_rev/2005nov23/1726.pdf (retrieved December 2005).

[123] The advisory committee is a body composed of members of civil society. It has, among other duties, the obligation to oversee the budget and internal regulations of the CNDH.

[124] Human Rights Watch telephone interview with Berenice Ortega, Academia Mexicana de Derechos Humanos,Mexico City,Mexico, December 20, 2005.

[125] According to Article 9 of the CNDH implementing regulations on transparency: "According to Article 4 of the Law on the CNDH, and in accordance with its Article 14(I), information or documentation in files pending before the CNDH is considered privileged information."

According to Article 4 of the Law on the CNDH: "The CNDH staff shall handle confidentially information and documentation related to the issues it may evaluate."

According to Article 48 of the Law on the CNDH: "The CNDH is not forced to provide any evidence it used to any government agency or official to which it issued a recommendation, nor to any individual.If these evidences were requested, [the CNDH] will have discretion to decide whether to provide them."

According to Article 78 of the internal rules of the CNDH: "Investigations carried forward by the CNDH staff, the procedural steps carried forward after each complaint, and the documentation received from the authorities and the individuals will be handled with the most absolute privilege, in the parameters set forth by Article 4 of the Law.In any case, authorities will abide by [the transparency law and the CNDH's implementing regulations].The aforementioned provisions do not apply to considerations the CNDH takes into account when issuing recommendations, declarations, or preparing annual or special reports.When someone requests copies of, or access to, information held in a file pending before the CNDH related to his or her own case, [he or she may receive the information only if] the case was concluded and the content of the file may not be considered privileged or confidential information."

[126]Letter by the CNDH's Information Committee to an individual requesting information, August 4, 2005 (additional identifying information withheld).

[127] Programa Atalaya of ITAM and La Ronda Ciudadana, "Anlisis de la CNDH en 2004," February 2006, p. 45.

According to Article 125 of the CNDH rules of procedures, the CNDH may conclude cases due to different reasons.

[128] Article 10 of the CNDH implementing regulations on transparency.

[129] When the CNDH evaluates the evidence presented in a complaint and concludes that there was a human rights violation, it issues a recommendation.Each recommendation will include a description of the facts of the case and the evidence analyzed by the CNDH, an analysis of the human rights violations, and specific recommendations to government agencies to act.Recommendations issued by the CNDH are then made public; and the CNDH has a follow-up mechanism by which it evaluates compliance by government agencies.See Articles 128 to139 of the CNDH rules of procedure.

According to the CNDH annual reports, in 2003 it concluded 3,342 cases and only 22 were recommendations (0.65 percent); in 2004 it concluded 3,800 cases and only 39 were recommendations (1.02 percent); and in 2005 it concluded 4,717 cases and only 28 were recommendations (0.59 percent).Information available online at http://www.cndh.org.mx/lacndh/informes/informes.htm (retrieved April 2006).

[130] Letter signed by Graciela Sandoval Vargas of the technical secretariat of the CNDH's information committee with reference to file 2003/3-T, July 28, 2003.

[131] The appeal does not generate any effect on other requests for information; i.e., the next time an individual or organization requests this type of information from the CNDH, they will have to present their cases to the courts and wait for their resolution.

[132] It would have been possible to create a "general" law (that would automatically make state governments subject to the law), but those negotiating the creation of the law decided instead to pass a "federal" one, thinking it would lead to a series of state laws that would follow the pattern established by the federal government. Human Rights Watch telephone interview with Juan Francisco Escobedo,Mexico City,Mexico,December 19, 2005.

[133] These twenty-seven states are Aguascalientes, Baja California, Baja California Sur, Campeche, Chihuahua, Coahuila, Colima, Durango, Guanajuato, Guerrero, Jalisco, Mxico state, Michoacn, Morelos, Nayarit, Nuevo Len, Puebla, Quertaro, Quintana Roo, San Luis Potos, Sinaloa, Sonora, Tamaulipas, Tlaxcala, Veracruz, Yucatn and Zacatecas.At the local level, there are transparency laws in municipalities in Coahuila, Colima,Durango, Mxico state, Jalisco, Nuevo Len, Guanajuato, and Sinaloa. See list of municipal laws published by IFAI, [online] http://www.ifai.org.mx/test/eym/municipal.htm (retrieved December 2005).

[134] A comprehensive comparative analysis of laws passed prior to October 2005 concluded that the best laws were those in Campeche, Distrito Federal, Morelos, Sinaloa and Baja California.Those that did worse in the evaluation were Tlaxacala,Aguascalientes,Puebla, Nuevo Len, and Veracruz. Ernesto Villanueva et. al,Derecho de Acceso a la Informacin Pblica en Mxico Indicadores Legales (Mexico City: LIMAC, 2005), pp. 4 and 35.

[135] Jos Antonio Caballero Jurez, "La regulacin sobre el acceso a la informacin judicial en Mxico.Algunos comentarios sobre el estado de la cuestin," in Jos Antonio Caballero Jurez et. al. (eds.),El acceso a la informacin judicial en Mxico: una visin comparada (Mexico City: UNAM, 2005), p. 202.

[136] Ernesto Villanueva, "El precio del derecho a saber," Proceso, February 4, 2006.

[137] David Sobel et. al., "The Federal Institute for Access to Public Information in Mexico and a Culture of Transparency," Project for Global Communication Studies at the Annenberg School for Communication at the University of Pennsylvania, February 2006, p. 31.

[138] See [online] http://www.ifai.org.mx/test/eym/edos.htm (retrieved December 2005).

[139]The states are Colima, Nuevo Len, Durango, Coahuila, Guanajuato, Estado de Mxico, Michoacn, Morelos, Nayarit, Puebla, Quertaro, San Luis Potosi and Sinaloa. David Sobel et. al., "The Federal Institute for Access to Public Information in Mexico and a Culture of Transparency," Project for Global Communication Studies at the Annenberg School for Communication at the University of Pennsylvania, February 2006, p. 31.

[140] Portions of this section were originally published in Human Rights Watch, "Justice in Jeopardy: Why Mexico's First Real Effort to Address Past Abuses Risks Becoming its Latest Failure," A Human Rights Watch Report, vol. 15, no. 4 (B), July 2003.

[141] Order of the President of the Republic,Mexico, November 27, 2001 (Chapter 3: "On the Opening of Institutional Archives").

[142] Human Rights Watch telephone interview with Kate Doyle,Mexico City,Mexico, June 2003. Kate Doyle, "'Forgetting is not Justice' Mexico Bares Its Secret Past," World Policy Journal, summer 2003, p. 71.

[143] Daro Fritz, "El AGN cierra puertas," Revista Milenio, October 7, 2002, p. 39.

[144] The researcher could not obtain an authorization of the person whose personal data was being withheld because this person had died.

[145] The document is D.F.S.-14-II-74.

[146] Human Rights Watch telephone interview with Adela Cedillo,Mexico City,Mexico, February 2, 2006.

[147] Human Rights Watch interview with Susana Zavala Orozco,Mexico City,Mexico, November 17, 2005, and Human Rights Watch telephone interview with Adela Cedillo,Mexico City,Mexico, December 19, 2005.

[148] Human Rights Watch telephone interview with Kate Doyle,Mexico City,Mexico, June 2003.

[149] The first gallery is extremely organized: the staff has cards that state what information is available in each box and where to find it.But there is no list of how many cards there are or which cards cover which topics.The information is completely catalogued but the catalogue is not entirely available to the public.So investigators must request information on a topic to the staff in that gallery, and they will receive those cards the staff considers relevant for the research they are conducting.Given the management problems mentioned earlier, particularly the full discretion granted to archive staff on what information should be provided, the existence of a catalogue that may not be entirely seen by researchers is useless to limit arbitrariness in the provision of information.Under this scheme, only the archive staff is aware of the "whole picture."The second gallery contains more than 3,000 boxes and only 600 of them are indexed. (Human Rights Watch interview with Dulce Mara Liahut Baldomar, director of Central Historical Archive at the National Archive,Mexico City,Mexico, January 20, 2006.)The boxes sent to the National Archive by SEDENA are amongst the 600 indexed ones, but the index is rough and simple and does not contain detailed information of what is the content of each box.Therefore, when researchers want to look for information in this gallery, they have to look at all boxes, one by one, and see whether there is information that could be valuable for their research.

[150] David Sobel et. al., "The Federal Institute for Access to Public Information in Mexico and a Culture of Transparency," Project for Global Communication Studies at the Annenberg School for Communication at the University of Pennsylvania, February 2006, p. 36.

[151] Human Rights Watch interview with Jorge Carrasco,Revista Proceso,Mexico City,Mexico, November 18, 2005.

[152] Jacinto R. Murgua, "La ceremonia del 2 de octubre de 1969: Los inexistentes muertos del Batalln Olimpia," La Revista, September 27, 2004, pp. 14-19.

[153] Human Rights Watch telephone interview with Adela Cedillo,Mexico City,Mexico, February 2, 2006.

[154] The Special Prosecutor's Office was created by President Fox to prosecute human rights abuses committed during Mexico's "dirty war" and is described in detail in Chapter 4 of this report.

[155] Human Rights Watch interview with Dulce Mara Liahut Baldomar,Mexico City,Mexico, January 20, 2006.

[156] Human Rights Watch telephone interview with Adela Cedillo,Mexico City,Mexico, February 2, 2006.

[157] See [online] http://www.ifai.org.mx/evaluacion/anexo.xls (retrieved December 2005).

[158] Human Rights Watch interview with ngeles Magdaleno, Mexico City, Mexico, November 16, 2005; Human Rights Watch interview with Susana Zavala Orozco, Mexico City, Mexico, November 17, 2005; and Human Rights Watch telephone interview with Jacinto Mungua, LIMAC, Mexico City, Mexico, December 7, 2005.

[159] The IFAI's decision was made in connection with an information request by the NGO LIMAC (Libertad de Informacin Mxico A.C) that asked the Attorney General's Office (Procuradura General de la Repblica, PGR) for a copy of the investigation by the Special Prosecutor's Office related to the possible commission of genocide during Mexico's "dirty war."The Special Prosecutor's Office answered that since they had already presented the case before a judge, they no longer had a copy of the requested file.In September 2004, the NGO appealed before the IFAI.In its decision, the IFAI reversed the PGR's decision to deny information, arguing that they were investigating the probable commission of genocide, which was a crime against humanity.The IFAI ordered the PGR to provide a public version of the investigation that would not publicize personal data, in order to protect the privacy of the victims and the accused. Ernesto Villanueva et. al,Importancia Social del Derecho a Sabe Preguntas y Respuestas en los Casos Relevantes del IFAI (Mexico City: LIMAC, 2005), pp. 77-93. The information was finally given to the NGO by the PGR, making previously unknown information public.

[160] Letter from Dulce Mara Liahut Baldomar, director of Central Historical Archive at the National Archive, to Adela Cedillo, April 18, 2005.

[161] Human Rights Watch telephone interview with Adela Cedillo,Mexico City,Mexico, December 19, 2005.

[162] Human Rights Watch interview with Dulce Mara Liahut Baldomar,Mexico City,Mexico,January 20, 2006.

[163] Kate Doyle, "'Forgetting is not Justice' Mexico Bares Its Secret Past," World Policy Journal, summer 2003, pp. 66-67.

[164] Jacinto R. Mungua,Historia Confidencial: Las nminas secretas de gobernacin (Mexico City: LIMAC, 2004), pp. 21-24.

[165] Ernesto Villanueva et. al,Importancia Social del Derecho a SaberPreguntas y Respuestas en los Casos Relevantes del IFAI (Mexico City: LIMAC, 2005), pp. 77-93.

[166] Jacinto R. Mungua, "Las claves del genocidio," La Revista, February 14, 2005, pp. 52-56.

[167] IFAI Resolution related to file 901/04, November 4, 2004.

[168] Letter sent by Gral. Div. Dem. Humberto Alfonso Guillermo Aguilar, president of the Information Committee of SEDENA, to Juan Veledaz lvarez, February 15, 2005.

[169] Human Rights Watch interview with Juan Veledaz,Mexico City,Mexico, January 19, 2006.Veledaz referred to document D.F.S.-6-IX-72.

[170]Antonio Jquez, "Inteligencia sin control," Proceso, number 1464, November 21, 2004.