«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
Freedom of Information: A Comparative Legal Survey harm test. The law also provides for a general public interest override, where "there is a particular public interest necessity", but this is couched in discretionary terms, providing only that in such cases the head of the administrative organ "may" disclose the records.206 Where only part of a document is covered by an exception, the rest of the document must be disclosed.207 The first exception relates to information about an individual where it is possible to identify that individual or, where it is not possible to identify anyone, where "there is a risk that an individual's rights and interests will be harmed." This is a very broad exception, in particular as it covers all information identifying an individual rather than information which would harm a legitimate privacy interest, or which even relates to a privacy interest. Furthermore, it is not subject to a harm test. This is mitigated to some extent by limits on this exception, for example where disclosure of the information is required, by law or by custom, or where disclosure is necessary in order to protect someone's life, health, livelihood or property.
This exception also does not apply to information concerning the official activities of a public official, an important limitation on its scope.
The second exception relates to corporate information where there is a risk that the rights, competitive standing or another legitimate interest of the corporation will be harmed or where it was provided in confidence and where confidentiality is a "rational" condition. Again, this exception is limited where disclosure is necessary in order to protect someone's life, health, livelihood or property.
The third exception covers information where, "with adequate reason", the head of the administrative organ deems disclosure to pose a risk to State security or to relations with another country or international organisation, or of causing disadvantage in negotiations with another country or international organisation.
The fourth exception concerns information the disclosure of which is, again with adequate reason, deemed to pose a risk of harm to the "prevention, suppression or investigation of crimes, the maintenance of public prosecutions, the execution of sentencing, and other public security and public order maintenance matters."
The fifth exception applies to internal government deliberations or consultations the disclosure of which would risk unjustly harming the 206 Article 7.
207 Article 6.
frank exchange of views or the neutrality of decision-making, unnecessarily risk causing confusion, or risk causing unfair advantage or disadvantage to anyone. This exception is largely consistent with international standards, apart from the concern with causing confusion, which is not generally considered to be a legitimate ground for limiting access to information, in part because it is an excessively subjective concept and in part because it is paternalistic in nature, contrary to the whole thrust of freedom of information laws.
The sixth exception is aimed at preventing harm to the conduct of business by public bodies. It includes a long list of specific forms of harms, which appears to be non-inclusive. This list includes, among other things, obstruction to research, harm to legitimate business interests, undermining personnel management, harm to the State's interest in contracts or negotiations, and facilitating unfair or illegal acts.
Appeals The law provides for the establishment of an Information Disclosure Review Board within the Prime Minister's office to consider appeals.
Although the Board is within the Prime Minister's office, efforts have been made to ensure that it is independent. It is composed of nine members, of whom up to three are full-time. The Prime Minister appoints members from among people of "superior judgement" who have been recommended by both houses of parliament, which should at least ensure openness and political participation. The term of office is three years and members may be re-appointed. Members may be dismissed by the Prime Minister upon receiving approval from both houses of parliament. The grounds for dismissal are, however limited to incapacity, misconduct or having acted in contravention of their official duties. While in office, members may not be officers of political parties or associations. Finally, the law provides that members' salaries shall be determined by another law. The law also provides for a secretariat to assist the Board.208 Appeals may be made to the head of an administrative organ, who is then is required to refer this to the Board unless the appeal is unlawful or a decision has been made to disclose the documents. The requester, the person who preferred the appeal (if different) and any third parties who have made representations must be notified of any appeals.209 208 Articles 21-26.
209 Articles 18-19.
Freedom of Information: A Comparative Legal Survey When considering an appeal, the Board may require the administrative organ to furnish it with the disputed record or request further information from the requester.210 The law provides in detail for the processing of appeals, including representations and investigations.
Appeals may then be taken to the district court.211 Promotional Measures The law requires heads of administrative organs to establish rules providing for the "proper" management of documents, in accordance with a Cabinet Order, and make those rules themselves public. The Cabinet Order itself shall set general standards relating to the "classification, preparation, maintenance, and disposal of administrative documents".212 Heads of administrative bodies are required to facilitate disclosure by providing information about the records they hold, as well as by taking other "appropriate steps". The Director-General of the Management and Coordination Agency shall establish an office for general enquiries. The latter shall also request reports on implementation from administrative organs and, annually, compile and publish a summary of these reports.213 The law also includes a number of general measures to promote openness. The government is required generally to "strive to enhance measures concerned with the provision of information held by administrative organs". Local public entities are required to strive to formulate and implement information disclosure measures. Finally, approximately 4 years after the law comes into effect, the government is required to examine its effectiveness and to take necessary measures to improve the disclosure of information, based on the results of this examination.214 210 Article 27.
211 Article 36.
212 Article 37.
213 Articles 38-39.
214 Articles 40, 41 and 44.
Mexico Introduction Mexico became one of the first countries in Latin America to pass a freedom of information law in June 2002, with the signing into law by President Fox of the Federal Transparency and Access to Public Government Information Law.215 The law was unanimously adopted in both chambers of the Mexican Congress, and is part of the commitment by the new administration to tackle corruption and foster democracy in Mexico. The law is among the more progressive freedom of information laws found anywhere, and includes a number of innovative features, including strong process guarantees, as well as a prohibition on classifying information needed for the investigation of grave violations of human rights or crimes against humanity.
The Right of Access The Law provides generally in Article 2 that all information held by government may be accessed by individuals.
Definitions The Law defines information as everything contained in documents that public bodies generate, obtain, acquire, transform or preserve. Documents, in turn, are defined as any records that documents the exercise of the functions or activities of the subjects of the Law and public servants, regardless of their source, date of creation or form. This is a broad definition, but limited by the substantive restriction to documents about functions or activities of public bodies.216 The Law defines separately the obligations of two sets of public bodies. All public bodies, defined as "subjects compelled by the Law" are defined and then a sub-set of these, termed "agencies and entities" is also defined. The Law then provides for one system of obligations for agencies and entities, and another for 'other' subjects.
"Subjects compelled by the Law" (subjects) includes:
the federal executive branch and the federal public administration;
215 Available at: http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB68/laweng.pdf. Available in the Spanish original at: http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB68/lawesp.pdf.
216 Article 3.
Freedom of Information: A Comparative Legal Survey
Autonomous constitutional bodies is further defined to include bodies like the Federal Electoral Institute, the National Commission for Human Rights, the Bank of Mexico, universities and any others provided for in the Constitution.
"Agencies and entities", effectively the first bullet point above, is defined as including bodies indicated in the Constitutional Federal Public Administration Law, including the President, and decentralised administrative institutions, such as the Office of the Attorney General.
The First Section applies to all subjects. However, the Second Section, which is very detailed, applies only to agencies and entities, effectively the executive branch of government. The Third Section, which applies to other subjects, mainly the legislative and judicial branches of government, is quite brief, containing only two Articles, but it does seek to incorporate some of the obligations and institutions provided for in Section Two. This is an innovative approach to including all three branches of government under the law, but it remains to be seen whether the obligations placed on the "other subjects" will be effective in practice.217 Process Each subject must establish a liaison section (see below), which effectively serves as the contact point, as well as the unit with responsibility for processing requests. Any person may, within one year of the Law coming into force, submit a request for access to the liaison section either in a letter or the approved form, including his or her name and address, a clear description of the information, any other relevant facts and the form in which he or she would like the information to be disclosed.
If the information is not described sufficiently clearly, or if the individual has difficulty making a request, including because of illiteracy, 217 See Doyle, Kate, In Mexico, a New Law Guarantees the Right to Know, available at:
the liaison section must provide assistance. The Law specifically states that the motive for the request shall not be relevant to the decision whether or not to disclose.218 Agencies and entities are required to provide information which is not classified or confidential and which they hold. Notification of their decision must be provided as soon as possible but in any event within 20 working days, and include the cost and form of access. The information must then be provided within another 10 working days, once the person has paid any fees. Where the information is classified or confidential, the Committee (a supervisory unit within all agencies and entities; see below) must be notified of this fact, along with the reasons and the Committee must then decide whether or not to ratify the classification or revoke it and grant access to the information. Similarly, when documents are not found, the Committee must be notified and, after having taken "appropriate measures" to find the information without success, confirm that the agency or entity does not hold the information. Requests which are offensive or which have already been dealt with previously do not have to be processed.219 It is unclear what offensive refers to in this context; some other freedom of information laws refer to vexatious requests.
The provisions of the Law relating to fees are very progressive. The fees for obtaining access to information, which must be set out in the Federal Duties Law, may not exceed the cost of the materials used to reproduce the information, along with the cost of sending it. The cost of searching for the information and preparing it is thus excluded.220 Access to personal data is free, although charges may be preferred to cover the costs of delivery on this information.221 Disclosure must be in the form requested, if the document will permit that.222 The process described above applies only to agencies and entities, not other subjects. A general attempt is made in Article 61 to require other subjects to provide information, by requiring them to "establish in their respective domains the institutions, criteria and institutional procedures 218 Articles 40-41 and Transitory Eighth.
219 Articles 42-48.
220 Article 27.
221 Article 24.
222 Article 42.