In June 2009, Petitioner requested from the public prosecutor (Procuraduria General de la Republica, or PGR) a copy of preliminary investigation No. 109/A/198/B related to the killing of 11 indigenous people in the locality of El Charco, state of Guerrero, on 7 June 1998.
The PGR rejected the request alleging that, under Articles 14(I) and (III) of the Federal Transparency and Access to Public Governmental Information Law (RTI Law) and Article 16(2) of the Federal Code of Criminal Procedure (FCCP), the preliminary investigations were protected and only the parties to criminal proceedings could have access to the corresponding files [pp.2-3].
Petitioner appealed to IFAI relying on the exception embodied in the final paragraph of Article 14 of the RTI Law, which allows for the disclosure of prima facie reserved documents such as preliminary investigations when they relate to grave violations of fundamental rights or crimes against humanity [p.7].
On administrative appeal, the PGR reiterated its arguments based on Articles 14(I) and (III) of the RTI Law and Article 16 of the FCCP [pp. 4-6].
Specifically, the PGR argued that Articles 14(I) and (III) of the RTI Law label “reserved information” as that which is so denominated by law and expressly include preliminary investigations in that category. In turn, FCCP Article 16 provides that, once the Court took up criminal action, only the parties to the case can have access to the preliminary investigations produced in the proceedings and public authorities that disclose any such information are subject to administrative or criminal liability. Such information is “reserved” and a public copy of these records can only be released if no criminal charges were actually pressed and once the statute of limitations for the underlying crime or offence has expired.
IFAI firstly noted that the facts that gave rise to petitioner’s request for information – the killing of indigenous peoples in Charco – had been identified by the competent judicial and administrative bodies as giving rise to violations of human rights by the Mexican military [p.8-11].
Secondly, IFAI addressed the PGR’s defences. IFAI noted that its longstanding criteria when it comes to the interpretation and application of Article 14 of the RTI law exempts ongoing preliminary investigations from disclosure, with the purpose of protecting the investigative efforts of the PGR. However, once preliminary investigations have concluded and the PGR decides to either drop the case or initiate a cause of action and an individual is formally indicted and brought to court, the preliminary investigations are no longer covered by the protective umbrella of Article 14 and must be released [pp.11-12]
As for the PGR’s FCCP Article 16 argument, while IFAI acknowledged that this Article created a valid cause for keeping information under reserve in connection with Article 14 of the RTI Law, any reserve created by the FCCP is overridden by the last paragraph of Article 14 of the RTI Law, which provides that no reserve can be invoked to refuse disclosure when the investigation relates to “grave violations of fundamental rights or crimes against humanity”. Thus, this last paragraph defeats any claim of secrecy or confidentiality under the FCCP. In essence, investigations related to these crimes are not subject to any reservation as a matter of overriding public interest [pp.12-18].
Because the information that Petitioner requested was intricately connected to grave violations of fundamental rights, IFAI revoked the PGR’s resolution and ordered disclosure of a public version of preliminary investigation No. 109/A/198/B within 10 business days.
IFAI administrative resolution