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Petitioner v. Centro de Investigacion y Seguridad Nacional (Centre of Investigation and National Security)

Case number:
4548/07
Country:
Mexico
Date of decision:
13 February 2008
Court / Arbiter:
Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI). ( Appellate )

Relevant law :
Federal Transparency and Access to Public Governmental Information Law (RTI Law), Articles 7(XIII), 13(I) and (IV), 14(I), National Security Act Article 51, Guidelines for the Classification and Declassification of Information of Federal Public Agencies. ( )

Decision:

The Centre of Investigation and National Security must disclose public information of 12 contracts for the provision of equipment entered with SOGAMS S.A. de C.V, outlining public information not related to the equipment or materials themselves, such as term, price and date, and disclosing the names of non-intelligence personnel. The Centre of Investigation and National Security can legally withhold information on the elements purchased, their characteristics and the intelligence personnel involved in such contracting since this constitutes reserved information.


Keywords:
Burden of proof (including requests for additional evidence)
Economic information (including of public authorities, national government; not of individuals)
Harm (including harm to legitimate interest, harm test)
National security (including defense, intelligence, state security, state secrets, secrecy laws)
Open government principles (including accountability, anti-corruption, democracy, participation in government, transparency)
Other law (non-RTI)
Oversight bodies (including information commission, judicial review, ombuds office)
RTI law
Regulations
Scope of information covered
Security sector (including intelligence bodies, military, police)
Segregability (information should be disclosed if can be segregated from information that may legitimately be withheld)

Case details:

Facts

In November 2007, petitioner requested from the Centre of Investigation and National Security (Centro de Investigacion y Seguridad Nacional, or CNIS), an intelligence bureau, a “copy of the contracts entered between the CNIS and the firm SOGAMS S.A. de C.V (SOGAMS) between1 December 200 and 6 November 2007” [p.1].

CNIS refused to disclose this information. First, for those contracts entered between 1 December 2000 and 27 August 2007, it reiterated a response already given to Petitioner on a prior opportunity, directing it to consult the agency’s webpage to access such a response [p.2].

As for the remaining contracts, CNIS noted these constituted classified information which disclosure could compromise national security and could affect the functions performed by CNIS itself and other federal agencies in connection with the gathering of intelligentsia, unduly exposing information on the technology and equipment used for those ends that could potentially fall into the hands of organized crime and other cells [pp.2-3].

The CNIS grounded this argument on Articles 14(I) of the Federal Transparency and Access to Public Governmental Information Law (RTI Law), which allows the classification of information “reserved by law”. In turn, it identified Articles 5 and 51 of the National Security Act and General Guidelines on the Classification and Declassification of Information of Federal Public Agencies as “laws” for the purposes of Article 14(I) of the RTI Law.

It also argued that, under Articles 13(I) (national security) and (IV) (information which if disclosed could endanger the life, security, physical integrity or health of any individual) of the RTI Law, the disclosure of the information would enable the identification of the personnel engaged in the celebration of these agreements thus exposing them unduly, compromising their security and physical integrity and affecting the secrecy that intelligence – and the preservation of national security – necessitates [p.4]

Petitioner appealed to IFAI, noting CNIS had not sufficiently accredited a threat to national security and indicating failure to disclose information required by Article 7 (XIII) of the RTI Law, which obligates public entities to disclose copies of the contracts they enter into [p.3].

On appeal, CNIS informed IFAI the number of contracts entered with SOGAMS during the time frame indicated by Petitioner, identifying their level of classification and for how long (3 to 12 years depending on their date) [pp.6-7]. It reiterated the arguments given to Petitioner before.

 

Decision

IFAI acknowledged that Article 7(XIII) of the RTI law obligates public entities to disclose information from the contracts they conclude, including amount, parties, terms and other aspects, except when such information falls under one of the grounds for reservation [pp.21-22].

IFAI then analysed CNIS’s national security defence and its invocation of the National Security Act as grounds for classification of the contracts in the context of Article 14(I) of the RTI Law. The commission rejected National Security Act Article 5 as constituting proper grounds for declassification but admitted Article 51, which states that all information that implies the revelation of rules, procedures, methods, specifications, techniques, technologies or equipment instrumental to the generation of intelligentsia for the protection of natural security is per se reserved.

IFAI considered the nature of the equipment produced by SOGAMS, which is advertised on its website, and determined that the contracts sought by Petitioner reasonably related to the provision of technology and equipment utilized for the protection of national security and that the disclosure of such contracts would indeed compromise intelligence and counter-intelligence activities [pp.30-31].

However, it rejected a blanket classification of all information contained in CNIS’s agreements with SOGAM, distinguishing between information which disclosure would not threaten national security, such as the price paid, name of the parties, legal representatives, date and term, type of bid, and administrative unit involved, and information related to the materials purchased, which had to remain classified. Consequently, IFAI ordered the disclosure of the first set of public data with respect to the 12 contracts entered with SOGAM during the period identified by Petitioner [pp.31-35]

Finally, IFAI addressed CNIS’s claim that the contracts would also be reserved under Articles 13(I) and (IV) of the RTI Law – in response to CNIS asserting that their revelation would unduly compromise the physical integrity and security of the personnel involved and would affect the functions of intelligence and counter-intelligence, thus indirectly threatening national security. In this regard, IFAI expressly reiterated the criteria it applied in Case No. 165/03, and determined that while the names of non-intelligence personnel constituted public information and had to be disclosed, the personal data of intelligence personnel was naturally reserved [pp.35-37].

 

Resources:

IFAI administrative resolution