's right of access to information
By: Geraldine Gonzalez de la Vega
Last week news spread about the declaration of competence by the Federal Tribunal of Fiscal and Administrative Justice to hear appeals against decisions of the Federal Institute of Access to Information (IFAI). Many believe that the interference the Court is unacceptable, because it lacks jurisdiction and because it paid to the autonomy of the IFAI desirable when making decisions regarding the right of individuals to know the information in the hands of the Federal Public Administration. When you open the possibility that the author used the resolutions of IFAI, breaks the principle of finality that ensures certainty in the exercise of the right by the individual. Otherwise, it allows a court battle against the authority that truncates the idea of \u200b\u200baccessibility to public information.
IFAI independence is achieved through its budgetary, operational and decision and by the fact that it is headed by five commissioners appointed by the Executive but with the possibility that the Senate objects to the appointment. Although part of the Federal Public Administration, IFAI commissioners not may be removed from office only when transgress in a serious or repeated the provisions of the Constitution or the Law of Transparency, when acts or omissions will affect the powers of the Institute, or have been convicted of a felony punishable by imprisonment body. It also provides that the Institute for purposes of its resolutions, is not subject to any authority, shall act in full independence and will have the necessary human and material resources for performance of their duties.
The IFAI is therefore the guarantor of a valuable right in a constitutional democracy. The TFJFA, abusing his authority, very serious violent right of access to public information by individuals. Important to explain why I believe What does the right to information?
Sergio López Ayllón [1] explains the right to information as a right that includes interrelated three faculties: the freedom to seek, or researching information, freedom to receive information and the freedom to disseminate information.
Meanwhile, Toby Mendel [2] explains the right to information by dividing it into three areas: the right of access to information, the State's obligation to publicize and disseminate information of general interest and reserved that it deems not be made public in accordance with clear exceptions established by law and the right to truth, that is, the citizen's right to know on matters of public interest and that they are investigated and the results made public, it would enter the truth commissions and committees of inquiry.
Then, freedom of information support participatory democracy and the foundation of transparency and good governance. His practice drives all the constitutional, because the democratic principle requires adequate protection and guarantee of fundamental rights and informed participation of citizens in shaping the will of the state.
The basic values \u200b\u200bof the Constitutional Court are updated upon entry into force of a law governing access to public information in state hands, as it is driven democratic participation, the exercise of fundamental rights and the real task of the sovereign people .
While the constitutional interpretation of Article 6 establishes the right of access to information since December 1977, it was not until June 2002 found that Mexican citizens in the Federal Law of Transparency and Access to Public Government Information (LFTAIPG), ensuring their right to access information in state hands.
The LFTAIPG came to fill one of the loopholes that exist in the integration of constitutional law and proper coordination requires both the interpretation of the Act, as the Supreme Rule itself, then this is your beginning and end. It is therefore essential to continue with the generally recognized principles for the exercise of freedom of information in this regard, I follow the standards that Mendel stated in his article on freedom of information [3] :
- principle of maximum disclosure
- define what information means
- Obligation to publish key information
- clear and narrow exceptions, subject to proof and the general interest
- protection law through an independent administrative body
The importance of the right of access to information lies in two senses: first, to be recognized as a fundamental right requires your application and security for specific constitutional means, ie through its establishment in constitutional law, through its realization via ordinary legislation and through your warranty through autonomous body created by the law itself, and through of a judicial process. The second sense of the importance of the right of access to information is that it is a fundamental right from which other rights depend, as for the effective exercise of which depends on information which the citizen has to exercise.
In this sense, we can enumerate just some of the rights rights recognized in the Constitution that require the exercise of the right of access to information as a prerequisite for democratic exercise: The right of association, participation in drafting the National Development Plan through consultation, the right to vote , rights in work and social welfare, education rights, health, environment, among others.
Based on the foregoing, the right of access to information is the foundation of a democratic system in which public participation takes place in an informed and therefore equal. By accepting the demands TFJFA to void the IFAI resolutions submitted by the authority required to provide the information, it breaks with the principles of transparency of the democratic state, it is truncated to exercise the right to make it a Way of the Cross bureaucratic and judicial and therefore limits its efficiency and prevents the accurate exercise of a right. Significantly increases the cost of exercising the right, and that is an unconstitutional limitation.
The right is to disseminate information on activities to all citizens enabling, through democratization of information, control of administrative action by public. The publicity of administrative action is to reinforce its democratic legitimacy and its own essentially helpful, legitimate in its origin, basis and period, ie directly related to accountability. As the object of the right to access to information captured in documents, the activity of the obligor or authority is not to provide a service but intermediation between the individual and the information that the authority gives its behalf. The information clearly can be classified as secret or confidential, but it is essential that a balance between publicity and secrecy, the former must be the first, the second exception. Therefore, there must be an exhaustive list of exceptions and the hermeneutic approach that presides over the interpretation must be the principle of publicity.
is clear that the creation of the LFTAIPG not bring its own practices and uses for the practice of law, because to do so must be a genuine public policy of transparency to include other measures Additional administrative structures, material, financial, human, information dissemination, etc.
It above, I consider that the interference of TFJFA paves the culture of secrecy, illegality and opacity in the acts of authority, and therefore, contradicts outright the desire for a "true" democratic state. It is unfortunate that in Mexico there are still officials willing to truncate this desire.
[1] López Ayllón, Sergio. The Right to Information as fundamental rights. In Right to Information and Human Rights Studies in Tribute to maestro Mario de la Cueva. Carpizo, Jorge and Carbonell, Miguel (Coordinator) UNAM Legal Research Institute. Mexico, 2000. pp. 160 -181.
[2] Mendel, Toby . Freedom of Information : internationally protected human rights. Journal of Comparative Law in the information published by the Institute of Legal Research UNAM, Universidad Iberoamericana and University of the West. Number 1 January-June 2003. Pages 1-4.
[3] Mendel, Toby . op. Page 4.
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