Mexico: Public Accountability, Privacy Under Threat

Independent Transparency Agency Left Paralyzed by Legislature, Government


President Andrés Manuel López Obrador and legislators from his party have effectively paralyzed the country’s independent transparency and data protection agency by blocking nominations to fill vacant seats on its board, Human Rights Watch said on May 24, 2023. The Senate should move swiftly to fill the three vacant seats.

The National Institute for Transparency, Access to Information, and Data Protection (INAI) is the independent agency charged with enforcing transparency and data protection rules in Mexico. It has played an important role in ensuring the right to privacy of ordinary Mexicans and ensuring that journalists and human rights defenders can obtain the necessary information to document and expose human rights violations and corruption. President López Obrador and legislators from his party have repeatedly proposed eliminating the agency, claiming it is unnecessary.

“By intentionally paralyzing the transparency agency, the Mexican government is undermining Mexicans’ right to access public information and to make decisions about how their personal data is used,” said Tyler Mattiace, Mexico researcher at Human Rights Watch. “Until the Senate names new transparency commissioners, Mexicans will have no way to easily appeal to an independent watchdog when the government denies them access to public information or when private companies misuse their personal data.”

The agency has the authority to require government agencies, political parties, labor unions, or other public bodies to comply with freedom of information requests from individuals or organizations. It also can require entities that hold personal data, such as government agencies, banks, or hospitals, to allow people to view, change, or eliminate data about themselves.

If a public entity refuses to respond to an information request, or provides incomplete information, the person who requested it can appeal to the agency, which can issue a legally binding decision compelling it to comply or pay a fine. The agency reviewed more than 20,000 such cases and issued more than 11,000 decisions compelling public bodies to comply with requests between October 2021 and September 2022, according to its most recent annual report. The agency also takes judicial action to challenge laws that wrongly limit access to public information or threaten Mexicans’ right to privacy.

The agency’s seven commissioners are appointed by the Senate to serve seven-year terms. By law, the board needs at least five commissioners to meet, review cases, or issue decisions. Currently it has only four. No new commissioners have been appointed to replace the three who completed their terms in March 2022 and March 2023. Since March 31, the INAI board has not had enough members to hold meetings or issue decisions. As of May 10, it had 3,947 pending cases, which it was unable to review.

In March, the Senate, which is controlled by legislators from President López Obrador’s coalition, voted to appoint two commissioners to fill the seats that had been vacant since April 2022. However, President López Obrador vetoed the appointments, alleging wrongdoing in the nomination process.

In April, senators from the president’s party voted down a second proposal to fill one of the vacant seats. The Senate president, a member of the president’s party, introduced a bill that proposed eliminating the agency but then retracted it. Opposition senators staged a protest, taking over the Senate floor and refusing to discuss other issues until a commissioner was appointed. The Senate president refused and instead reconvened the Senate in a different building to continue voting on other bills. The Senate went into summer recess on April 30 without having appointed new INAI commissioners.

A federal judge has repeatedly ruled, most recently on May 11, that the Senate’s failure to fill the vacant seats on the INAI board violates Mexicans’ constitutional right to access public information. The judge ordered the Senate to name at least one commissioner to enable the agency to resume normal functions.

The agency has played a key role in enabling Mexicans to uncover serious human rights violations and government corruption schemes. For example, a 2015 ruling forced Mexico’s attorney general to release the records of its investigation into the 2014 disappearance of 43 students in Iguala, Guerrero, revealing major inconsistencies, including that key suspects had been tortured. Hundreds of freedom of information requests made through the agency have enabled activists to determine the location of more than 2,000 mass graves across Mexico. They have also allowed reporters to uncover corruption schemes that diverted hundreds of millions of dollars from public services like health care and education.

The agency has also enabled Mexicans to access personal information about themselves in government records. Prior to a 2003 decision by the agency’s predecessor public hospital medical records were considered government property. Requests for medical records, pension contribution records, and other personal information held by the government continue to be one of the main types of information requests made through the agency.

President López Obrador and legislators from his party have repeatedly proposed eliminating the agency and transferring its functions to government auditing agencies like the Ministry of Public Administration (Secretaría de la Función Pública), which is responsible for auditing the finances and performance of the executive branch of the federal government and reports directly to the president, or the Supreme Audit Office of the Federation (Auditoría Superior de la Federación), which is charged with auditing the use of the federal budget and reports to Congress. These institutions report to the same politicians and leaders they would be expected to hold to account, which means they would not serve as an independent check on government secrecy, Human Rights Watch said.

President López Obrador issued an executive order in November 2021 designating all government infrastructure projects matters of national security, enabling officials to deny access to information about them. The transparency agency challenged the executive order before the Supreme Court, which voted to overturn it on May 18 as a violation of the constitutional right to access public information. Hours after the Supreme Court ruling, President López Obrador issued a nearly identical executive order. The agency responded with a formal complaint, which is now pending with the Supreme Court. However, the transparency agency cannot present a new legal case while its board lacks the five members required issue formal decisions.

The right to information is a recognized human rights norm. It includes the right of access to information held by public institutions and information on public affairs. Access to this information is also an important means of exercising the human right to participation in public affairs. Mexico should ensure easy, prompt, effective, and practical access to this information, including by establishing and guaranteeing procedures for obtaining the information and by processing requests for information in a timely manner.

Mexico should also ensure that every person can ascertain what personal data is being processed and stored about them and why, and that they can request to view, correct, and in some cases erase that information, whether it is held by the government or private companies.

Mexico has accepted specific obligations to establish an independent authority with the powers to investigate and take legal action for violations of personal data protection laws. In addition, the Inter-American Commission on Human Rights’ special rapporteur for freedom of expression has recommended that an independent specialized agency be responsible for reviewing and deciding on government denials of requests for information.

“The INAI has empowered journalists and activists in Mexico to uncover horrific abuses and massive corruption scandals precisely because it is independent from the government,” Mattiace said. “Eliminating the INAI and transferring its powers to an agency that reports directly to the politicians it is intended to hold to account, especially given Mexico’s long history of official secrecy and cover ups, would be the perfect recipe for abuse.”

Source:Human Rights Watch