We bring together information on the legal frameworks for the right to information from more than 100 countries.
You are here: Home Cases Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense)

Petitioner v. Secretaria de la Defensa Nacional (Secretary of National Defense)

Case number:
39/04
Country:
Mexico
Date of decision:
4 May 2004
Court / Arbiter:
Information Commission (Instituto General de Acceso a la Informacion Publica, or IFAI). ( Appellate )


Decision:

The Secretariat of National Defence must fully disclose the conciliation files of the National Commission of Human Rights corresponding to proceedings where conciliation was offered to personnel of the Secretariat of National Defence and which have already been resolved. For those cases that have not been resolved, the Secretariat of National Defence must disclose the files but redact information that would allow an identification of the individuals engaged in such proceedings, to protect both their identities and the integrity of the process.


Keywords:
Court papers (including case files, court orders)
Harm (including harm to legitimate interest, harm test)
Law enforcement / Administration of justice (including prevention/investigation/prosecution of crime, due process)
Open government principles (including accountability, anti-corruption, democracy, participation in government, transparency)
Oversight bodies (including information commission, judicial review, ombuds office)
Personal information (including personnel files, other records concerning or held by public servants)
Public interest (including public interest override, information of public interest)
RTI law
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 December 2003, Petitioner (ITAM University Atalaya Program) requested the Secretariat of National Defence (Sectretaria de la Defensa Nacional, or SND) grant access to “the files in which the National Commission of Human Rights proposed a conciliation (or alternative dispute resolution) on the grounds of acts attributed to personnel of the SND […] between 1 October 2002 up to 30 November 2003.” [p.1].

The SND responded that such files were not in its power and that Petitioner should address the National Commission of Human rights instead (NCHR). It also maintained the information was classified under Articles 13 and 14(I) of the RTI Law as supplemented by Article 9 of the NCHR’s Transparency and Access to Information Regulations (NCHR Regulations) [pp.1-2].

Petitioner appealed, before IFAI.

 

Decision

IFAI firstly noted that the fact that the files did not originate at the SND, but rather were created by the NCHR was irrelevant, since Article 3 of the Federal Transparency and Access to Public Governmental Information Law (RTI Law) defines “information” for the purposes of such law as that which is generated, obtained, acquired, transformed or conserved” by public entities, regardless of under what title [p.7]. Therefore, to the extent that the SND possessed, in any capacity, any portions of the information sought by Petitioner, then the provisions of the RTI Law applied.

IFAI then turned to the analysis of the classification claim. Article 14(I) of the RTI Law provides that “reserved” or “classified” information shall be that which is expressly identified as such by law. In turn, Article 9 of the NCHR regulations defines confidential or reserved information for the purposes of the Regulations as all that which exists in NCHR’s files. However, Article 9 is subject to Article 4, which establishes that the duty of confidentiality is applicable to the personnel that handle the NCHR’s documents and files. IFAI jointly interpreted these two provisions to mean that while NCHR personnel is bound by a duty of confidentiality, the documents and files themselves are not always confidential per se and therefore the SND cannot rely on these provisions to reject disclosure under the umbrella of Article 14(I) of the RTI Law [p.8].

IFAI also understood that, based on Article 119 of the NCHR’s Regulations, while conciliation proceedings are still open or ongoing, all information produced within such proceedings is covered by Article 13(V) of the RTI law, which establishes a reservation for proceedings where the liability of public officers is as stake. IFAI also pointed out that Article 18(II), which protects personal data that requires consent of the data owner for disclosure, was relevant to the case at hand [p.9].

Therefore, IFAI ordered full disclosure of those files where administrative and liability proceedings involving SND personnel had concluded. As for those cases that were not closed, IFAI ordered that information be disclosed but omitting the names and other personal data that would allow an identification of SND personnel, so as to protect their identities and the integrity of ongoing proceedings [pp.10-11].

 

Resources:

 

IFAI administrative resolution