To determine if Mexico's Freedom of Information Law (FO) is effective, I must first define what an FOI law is. Ackerman and Sandoval-Ballesteros define an effective FOI law as providing individuals "the right to access documents held by the government without being obliged to demonstrate any legal interest or standing" (2006, p. 89). From this definition, I have gathered two assumptions that I believe must be met for Mexico's FOI law to be considered effective. First, agencies must provide information consistently and predictably regardless of the type of information and the complexity of the information requested, assuming the information is legally allowed to be accessed. Secondly, a person's standing or status in society cannot affect if they are able to receive requested information. I will conclude Mexico's FOI law is not effective as my two required assumptions are unmet. To arrive at this conclusion, I will first provide a general background of Mexico's government, assessing how and why their FOI law came into exists. I will then look at my two assumptions separately. I will expose how my first assumption is unmet as agencies use false reasons to deny individuals information they have a legal right to. My second assumption will also be deemed unsatisfied as fees associated with requesting information limit certain demographics from gaining access. Even after demonstrating how the Federal Institute for Access to Information (IFAI) attempts to solve the problems associated with wrongfully withholding information and the SiSi portal attempts to solve problems related to making information accessible, both yield unsatisfactory results. Therefore, I will conclude that based on Ackerman and Sandoval-Ballesteros' definition of effectiveness, Mexico's FOI law is ineffective.
BACKGROUND:
For over 70 years, Mexico was governed by the Institutional Revolutionary Party. During this time, Mexico's government was extremely secretive and corrupt. In 2000, Vincente Fox became the first democratically elected president, beginning Mexico's transition into a developing democracy (Lagunes and Pocasangre, 2017, p. 6). Fox ran his campaign on promises to promote new levels of transparency, openness, and accountability in the government. Fox and the FOI law he passed have changed the fundamental norms and culture of the country, which now recognizes citizen's rights to access information about their government. Civil society played a crucial role in the creation of Mexico's FOI law. In 2000, a group made up of reporters, lawyers, editors, scholars, and non-government actors formed and became known as the Oaxaca Group. Their goal was to ensure that President Fox kept his promise to promote new levels of openness and accountability. The Oaxaca group drafted their own freedom of information initiative, which they presented to Congress in 2001 (Doyle, 2006, pp. 3-5).
Congress unanimously passed the bill, and President Fox signed the Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental, the Freedom of Information Act (FOIA), into law in 2002, taking full effect in 2003. The law guarantees that individuals can request information from government bodies and various other agencies and departments (Lagunes, 2009, p. 8). However, there are restrictions in place that the government can withhold information that is deemed confidential or classified (Almanzar, Aspinwall, and Crow, 2016, p. 325). The FOIA continues to represent one of the most progressive FOI laws in the world today (Mendel, 2008, p. 81). Additionally, in 2007, the Mexican Congress added an amendment to Article 6 of the Constitution, creating new regulations and rules around FOI implementation and standardization in the country's political and legal institutions (Doyle, 2006, pp. 3-5).
ASSUMPTION 1:
According to Ackerman and Sandoval-Ballesteros' definition, an effective FOI law must guarantee the right of citizens to request information (2006, p. 89). I, therefore, assume an effective FOI law must provide information consistently, regardless of the type or complexity of the information requested, assuming the information requested is not deemed confidential or classified. I will now demonstrate how Mexico's FOIA cannot be considered effective as agencies use methods that are technically illegal to get around providing information. Such methods include ignoring requests or lying about why they cannot provide the information. Additionally, agencies pick and choose what requests they grant information to related to the complexity and topic of the request (Lagunes, 2009, p.8).
A significant problem with Mexico's FOAI is that agencies often use illegal tactics to conceal information that the requestor is legally obliged to access. If an organization does not want to provide the information out of sheer laziness or to protect their department's reputation, there are various tactics and reasons they can cite. For example, the agency can claim they cannot find the information, the information has never been properly written down (Almanzar, Aspinwall, and Crow, 2016, pp. 324-325), the information does not exist, or that their agency does not hold the information (Mendel, 2008, p. 83). These methods represent various ways agencies actively withhold information that citizens have a legal right to.
Not only do agencies use various excuses as to why they cannot provide information, but the type of information requested can also impact the likelihood of agencies providing the information. Studies show that sensitive information requested related to national security, conflict, and the war on drugs is the most likely to be rejected (Mendel, 2008, p. 80). This is evident as between 2007-2012, agencies related to security generally refused 29% of the information requests they received, whereas non-security agencies refused 10.8% of information requests. Across this time frame, information related to drug issues had a 29% refusal rate, compared to non-drug-related issues which had a 27.44% refusal rate (Almanzar, Aspinwall, and Crow, 2016, p. 326). These various methods agencies use to prevent the disclosure of information to individuals who have a legal right to it is especially concerning as it demonstrates that secrecy and corruption undermine the FOIA and remain apparent in the Mexican government.
ATTEMPT TO OVERCOME THE PROBLEM: FEDERAL INSTITUTE FOR ACCESS TO INFORMATION (IFAI)
When the FOIA was created, it also established the Federal Institute for Access to Information (IFAI). The IFAI is an independent institution created to oversee and regulate the process of accessing information (Mendel, 2008, p. 82). If an individual believes that their request has been wrongfully denied or they believe the information they have received is inadequate, they can report their case to the IFAI, which will launch a further investigation (Lagunes, 2009, p. 8). However, I am not convinced that the IFAI is both willing or able to overcome the unreliable and inconsistent responses agencies provide. This is evident as between 2003 - 2013, only 477 cases were filed with the IFAI from citizens who believed they had wrongfully been denied information they requested. Around this time frame, an estimated 1 million requests were filed under the FOIA (Berliner, Bagozzi, and Palmer-Rubin, 2018, p. 222). As the general refusal rate between 2007-2012 was roughly 27%, this suggests that nowhere near all the cases eligible for investigation were filed under the IFAI. Therefore, the IFAI is unable to overcome the problem of information being illegally withheld from citizens who request it (Almanzar, Aspinwall, and Crow, 2016, pp. 325-326).
ASSUMPTION 2:
Based on Ackerman and Sandoval-Ballesteros' definition of what makes a valid FOI law (2006, p. 89), I have assumed that an effective FOI law cannot use the requestor's status or standing in society to prevent them from being able to gain access to requested information. I will demonstrate how, in fact, Mexico's FOIA law does not meet this requirement. This is evident as unpredictable and unreliable fees often arise when individuals attempt to gain access to information.
According to the FOIA, agencies are allowed to charge necessary fees related to the cost of materials needed to find, replicate, format, and deliver information to a requestor (Ackerman and Sandoval-Ballesteros, 2006, p. 108). While the cost of these fees must technically be stated in the Federal Duties Laws, there have been various studies that show that the price and occurrence of such fees are very inconsistent. In fact, between 2007- 2015, fees related to accessing information in Mexico have almost doubled; this evidence suggests that fees are being warranted irregularly (Mendel, 2008, p. 83). Lagunes and Pocasangre's study provides complementary evidence to this claim. They found that when an agency decided to charge a fee, they attempted to justify it by promising the requestor, they would receive a significant number of pages in response to their request. However, their evidence showed that the number of pages a requestor received was in no way related to if they were charged a fee or how much the fee was (2017, pp. 15-17). As fees are unpredictable and unregulated, individuals are not only discouraged from requesting information, but also such fees disproportionately affect people from different economic classes from requesting information. Therefore, fees represent barriers that deter individuals from gaining access to information about how the Mexican government works (Ackerman and Sandoval-Ballesteros, 2006, p. 108).
ATTEMPT TO OVERCOME PROBLEM: SiSi
When the FOIA legislation was signed into effect, it simultaneously established SiSi, also known as the Infomex Website. SiSi is an online system individuals can use to request and appeal information requests (Lagunes and Pocasangre, 2017, p. 15). This portal was created to make accessing and requesting information more convenient and accessible to the public. This is evident, as the FOIA law requires the portal to electronically publish every request and response ever made, meaning that individuals will not have to pay for information that another person has previously requested (Doyle, 2006, p. 1). Additionally, the law requires certain agencies and entities to continuously make a significant amount of electronic data available to the public. The type of information required includes the goals, duties, and services of an agency, a list of all public servants and their salaries in the department, and a comprehensive outline of their budget (Ackerman and Sandoval-Ballesteros, 2006, p. 108). Having access to such extensive data is theoretically supposed to limit the amount of data requests individuals will have to make, as commonly requested information is automatically published. While these various attempts to make information more accessible are commendable, these methods can only be utilized if an individual has internet access (Doyle, 2006, p. 1). This means that Mexico's FOIA law not only limits certain people, likely the poor and uneducated, from being able to access information due to subjective fees, but the SiSi portal also limits individuals without internet access from requesting information, viewing previously requested information, and seeing published data.
According to Ackerman and Sandoval-Ballesteros's definition of what makes an FOI law effective (2006, p. 89), I have made two core assumptions, which I believe must be met in order for an FOI law to be considered effective. First, agencies must provide information that is legally required of them and do so consistently, regardless of the complexity or topic of the information requested. And secondly, all citizens must be able and have access to information they request, irrespective of their standing or status in society. I have demonstrated that in the case of Mexico, neither of my assumptions are satisfied. This is evident as information individuals have a legal right to is inconsistently and unpredictably provided. Additionally, certain demographics are limited to requesting information due to unregulated and arbitrary fees. I additionally demonstrated how the IFAI attempts to overcome the first problem, and the SiSi Portal attempts to overcome the second problem. However, both prove unsuccessful in producing outcomes that meet the demands of my two key assumptions. This leads me to the ultimate conclusion that Mexico's FOI law cannot be considered effective.
Bibliography
Ackerman, J., and Sandoval-Ballesteros, I. (2006) ‘The Global Explosion of Freedom of Information Laws’, Administrative Law Review, 58(1), pp. 85-130. Available at: https://www.jstor.org/stable/40712005 (Accessed 21 October 2019).
Almanzar, T., Aspinwall., M, and Crow, D. (2016) ‘Freedom of Information in Times of Crisis: The Case of Mexico’s War on Drugs’, Governance, 31, pp. 321-339. Available at: https://onlinelibrary.wiley.com/doi/full/10.1111/gove.12289 (Accessed 21 October 2019).
Berliner, D., Bagozzi, B., and Palmer-Rubin, B. (2018) ‘What Information do Citizens Want? Evidence from One Million Information Request in Mexico’, World Development, 109, pp. 222-235. Available at:https://www.sciencedirect.com/science/article/pii/S0305750X18301359
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Doyle, K. (2006) ‘Mexico Freedom of Information: Overview’, Freedom of Information, pp 1-17. Available at: http://www.freedominfo.org/regions/latin-america/mexico/mexico2/ (Accessed 20 October 2019).
Lagunes, P. (2009) ‘Irregular Transparency? An Experiment Involving Mexico’s Freedom of Information Law’, SSRN Electronic Journal, pp. 1-29. Available at: http://unpan1.un.org/intradoc/groups/public/documents/un-dpadm/unpan041537.pdf (Accessed 20 October 2019).
Lagunes, P., and Pocasangre, C. (2017) ‘Dynamic Transparency: An Audit of Mexico’s Freedom of Information Act’, Public Administration, 97(1), pp. 1-29. Available at: https://onlinelibrary.wiley.com/doi/pdf/10.1111/padm.12553 (Accessed 15 October 2019). Mendel, T. (2008) Freedom of Information: A Comparative Legal Survey, Paris: UNESCO, pp. 80-87.
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