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.
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].
IFAI administrative resolution