University of Pennsylvania University of Pennsylvania

ScholarlyCommons ScholarlyCommons

Other Publications from the Center for Global Communication Studies

Center for Global Communication Studies (CGCS)

2-2006

The Federal Institute for Access to Information in Mexico and a The Federal Institute for Access to Information in Mexico and a

Culture of Transparency Culture of Transparency

David Sobel University of Pennsylvania

Bethany Davis Noll

Benjamin Fernandez Bogado

TCC Group

Monroe Price University of Pennsylvania, Mprice@asc.upenn.edu

Follow this and additional works at: https://repository.upenn.edu/cgcs_publications

Part of the Communication Commons, and the International and Area Studies Commons

Recommended Citation Recommended Citation Sobel, David; Davis Noll, Bethany; Fernandez Bogado, Benjamin; TCC Group; and Price, Monroe. (2006). The Federal Institute for Access to Information in Mexico and a Culture of Transparency. Other Publications from the Center for Global Communication Studies. Retrieved from https://repository.upenn.edu/cgcs_publications/4

This paper is posted at ScholarlyCommons. https://repository.upenn.edu/cgcs_publications/4 For more information, please contact repository@pobox.upenn.edu.

The Federal Institute for Access to Information in Mexico and a Culture of The Federal Institute for Access to Information in Mexico and a Culture of Transparency Transparency

Abstract Abstract In the family of freedom of information laws globally, Mexico is a leader, partly because of its Federal Institute for Access to Public Information in Mexico (IFAI) set up under the country’s new Transparency Law. The William

and Flora Hewlett Foundation asked an international team to study how IFAI has made a difference as the legislation furthers public understanding of government and provides for an informed citizenry. Evaluating performance was the first priority. But for an institution like IFAI to survive and flower and for it to make its greatest contribution, it must also be perceived to be performing in accordance with legislative hopes. Two stakeholders—the “obligated agencies” or agencies covered by the underlying law and the public that uses the transparency law were canvassed as part of the study. We conducted a survey of the staff of IFAI itself as to its understanding of its role and performance. IFAI, as part of the architecture of government openness, has already contributed enormously to a culture of transparency in Mexico. That culture of transparency has contributed to undergirding democratic processes. Much of this progress is attributable to the Commissioners and staff at IFAI. They recognize, however, that there remain substantial opportunities to deepen and broaden this process. Our study seeks to make specific recommendations that will reinforce and advance what IFAI has already accomplished.

Among IFAI’s important mandates are: resolving appeals of a denied request under the law, training public servants as well in access to information and protection of personal data, monitoring compliance with the law, promoting and disseminating the use of the right of access to information, establishing guidelines for the management of personal data, and disseminating information about how the Transparency Law works. The study focused on these particular mandates as a basis for framing recommendations.

In particular, there is an emphasis on extending the work of IFAI to as many groups and citizens as possible to make the Transparency Law effective. This outreach must extend to public servants subject to the law and the community at large. Indeed, for a deeply ingrained, robust “culture of transparency” to be established in Mexico, IFAI must involve state and municipal governments to promote transparency on the local level. The Transparency Law is largely an accomplishment of the Mexican civil society that lobbied and won its passage. It is a law that stands for unprecedented public openness in Mexico’s history. The underlying hopes are that reach citizen throughout Mexico’s thirty-one states benefit, directly or indirectly, from the functioning of the transparency laws and the discipline and educative support of IFAI.

Disciplines Disciplines Communication | International and Area Studies

Creative Commons License Creative Commons License

This work is licensed under a Creative Commons Attribution-NonCommercial-No Derivative Works 4.0 International License.

This report is available at ScholarlyCommons: https://repository.upenn.edu/cgcs_publications/4

A

The Federal Institute for Access to PublicInformation in Mexico and a Culture of

Transparency

Project for Global Communication Studies at the Annenberg School for Communication at the

University of Pennsylvania

A Report for the William and Flora Hewlett Foundation

February 2006

AuthorsDavid L. Sobel

Bethany A. Davis NollBenjamin Fernandez Bogado

TCC Group Monroe E. Price

Project DirectorMonroe E. Price

Deputy DirectorBethany A. Davis Noll

CoordinatorSusan Abbott

Board of AdvisorsDavid Goldberg

Luis Manuel BotelloKate Doyle

Eduardo Bertoni

B

Contents

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1A. Recommendations for IFAI . . . . . . . . . . . . . . . . . . . . . .2B. Recommendations for IFAI and the Obligated Agencies . . .3C. Recommendations for IFAI and End Users . . . . . . . . . . .4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6I. Background of IFAI . . . . . . . . . . . . . . . . . . . . . . . . . . . .11II. IFAI Today . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14B. IFAI’s Major Responsibilities . . . . . . . . . . . . . . . . . .15C. Autonomy and Effectiveness . . . . . . . . . . . . . . . . . . .16D. Roles and Responsibilities . . . . . . . . . . . . . . . . . . . .18

1. Administrative Court and Regulator of Transparency Law Procedures

2. Training3. Advocates for Transparency and

Interpreter of the LawE. Internal Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . .29F. Relationship with States . . . . . . . . . . . . . . . . . . . . .30

III. IFAI and the Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . .34A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34

1. Who is Subject to IFAI?2. Structure of Agencies

B. Specific Agency Issues . . . . . . . . . . . . . . . . . . . . . . .361. Archiving2. Agency Response Time3. IFAI Training at the Agency Level

C. Agencies and IFAI Relationship: Tense but Amicable . . . .401. Areas of Substantial Agreement2. Agency Concerns

D. Building Bridges for Communication . . . . . . . . . . . . . .45IV. IFAI’s Relationship with the End User . . . . . . . . . . . . . . . .47

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47B. Legal Basis for a Relationship with the End User . . . . .48C. Mechanism for Requests: Pros and Cons

of the Internet and the Transparency Law . . . . . . . . . .49D. Type of Information Requested . . . . . . . . . . . . . . . . . .51E. Occupation of Requestor as Proxy for Type of Use . . .52F. Age: A Possible Culture Shift? . . . . . . . . . . . . . . . .57G. Making the Request: Getting Smarter . . . . . . . . . . . . .59H. Civil Society Perceptions of the Transparency Law, FOI

Procedures, and Stakeholders . . . . . . . . . . . . . . . . .601. Perceptions about the Transparency Law

and Access to Information2. Perceptions about Stakeholders3. Perceptions about the Transparency Law Process

I. Publication and Distribution of Information . . . . . . . . .631. Publications and Materials of IFAI2. Other Approaches to Promoting the Law

J. Partnerships and Collaboration . . . . . . . . . . . . . . . .66K. Survey on Appeals to IFAI . . . . . . . . . . . . . . . . . . . . .66L. Culture of Openness . . . . . . . . . . . . . . . . . . . . . . . .73

V. Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75A. Recommendations to IFAI . . . . . . . . . . . . . . . . . . . . . .75

1. IFAI and the States 2. Supporting IFAI and Institutions of

Transparency in Mexico3. Collaboration 4. Autonomy

B. Recommendations Concerning IFAI and the Agencies . . . .801. A Working Relationship2. Training 3. Archiving4. Institutionalizing Dialogue between IFAI

and Other Similar Entities

C

C. Recommendations for End Users . . . . . . . . . . . . . . . .831. Implementation of the Transparency Law2. Training for NGOs on Enhancing Public

Interest Advocacy 3. Legal Advocacy4. Media Outlets and Information Gained through FOI

Requests D. Final Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . .87

End Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89Appendix I: Requests by Subject . . . . . . . . . . . . . . . . . . . . . .96Appendix II: IFAI Publications . . . . . . . . . . . . . . . . . . . . . . . .98

I. Video . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98DescriptionStrengthsChallenges

II. Audio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99III. Written Material . . . . . . . . . . . . . . . . . . . . . . . . . .100

A. Cuadernos de Transparencia (Transparency Notebooks) . . . . . . . . . . . . . . . . . . . .

B. Transparency, Access to information and Personal DataC. Mexico: Transparency and Access to InformationD. Transparencia: Libros Autores, IdeasE. “Prácticas” (Practical Guides)

Appendix III: Guide to Terminology . . . . . . . . . . . . . . . . . . . .105Appendix IV: Project Members . . . . . . . . . . . . . . . . . . . . . .108

D

In the family of freedom of information lawsglobally, Mexico is a leader, partly because ofits Federal Institute for Access to PublicInformation in Mexico (IFAI) set up under thecountry’s new Transparency Law. The Williamand Flora Hewlett Foundation asked an interna-tional team to study how IFAI has made a differ-ence as the legislation furthers public under-standing of government and provides for aninformed citizenry. Evaluating performance wasthe first priority. But for an institution like IFAI tosurvive and flower and for it to make its greatestcontribution, it must also be perceived to beperforming in accordance with legislativehopes. Two stakeholders—the “obligated agen-cies” or agencies covered by the underlyinglaw and the public that uses the transparencylaw were canvassed as part of the study. Weconducted a survey of the staff of IFAI itself as toits understanding of its role and performance.IFAI, as part of the architecture of governmentopenness, has already contributed enormouslyto a culture of transparency in Mexico. That cul-ture of transparency has contributed to under-girding democratic processes. Much of thisprogress is attributable to the Commissionersand staff at IFAI. They recognize, however, thatthere remain substantial opportunities to deep-en and broaden this process. Our study seeks tomake specific recommendations that will rein-force and advance what IFAI has alreadyaccomplished.

Among IFAI’s important mandates are: resolvingappeals of a denied request under the law,training public servants as well in access to infor-mation and protection of personal data, moni-

1

Executive Summary

toring compliance with the law, promoting anddisseminating the use of the right of access toinformation, establishing guidelines for the man-agement of personal data, and disseminatinginformation about how the Transparency Lawworks. The study focused on these particularmandates as a basis for framing recommenda-tions.

In particular, there is an emphasis on extendingthe work of IFAI to as many groups and citizensas possible to make the Transparency Laweffective. This outreach must extend to publicservants subject to the law and the communityat large. Indeed, for a deeply ingrained, robust“culture of transparency” to be established inMexico, IFAI must involve state and municipalgovernments to promote transparency on thelocal level. The Transparency Law is largely anaccomplishment of the Mexican civil societythat lobbied and won its passage. It is a law thatstands for unprecedented public openness inMexico’s history. The underlying hopes are thateach citizen throughout Mexico’s thirty-onestates benefit, directly or indirectly, from thefunctioning of the transparency laws and thediscipline and educative support of IFAI.

To aid IFAI in continuing to improve its work aswell as in disseminating and encouraging a cul-ture of transparency throughout the country,this report makes the following recommenda-tions, divided into sets of recommendations forIFAI, for the obligated agencies, and for the cit-izens who use IFAI.

A. RECOMMENDATIONS FOR IFAI

While there are many proposals for legislation,we conclude that the emphasis, in the near

2

future, should be on operational issues andreform. The focus should be on gaining experi-ence and improving the relationship betweenIFAI, the obligated agencies, and civil society. Inshort IFAI should:

• attempt to increase its staff resources devotedto working with state and local governmentsand interest groups;

• undertake a targeted marketing campaign thatpromotes confidence in the overall FOI system(as opposed to IFAI itself) and engages parts ofthe population that are currently underrepre-sented in usage of the Transparency Law; and

• review existing collaborative agreements toensure that each agreement truly represents acommitment to transparency and collaborationas well as to ensure that it is being actualized.

In addition, in order to focus on concerns aboutIFAI’s future autonomy, we recommend that aCommittee for the Protection of IFAI’sAutonomy be set up as an outside, independ-ently-funded ombudsgroup to serve as anadvocate for the transparency process as wellas for IFAI’s continued autonomy. And, IFAIneeds to push for formal recognition of the def-inition for budgetary autonomy in Congress andwith the President.

B. RECOMMENDATIONS FOR IFAI AND THE OBLIGATEDAGENCIES

There should be more frequent and more institu-tionalized contact between IFAI and the obli-gated agencies in order to enhance accounta-bility as well as collaboration and information-sharing. IFAI Commissioners could convene reg-

3

ular (annual or bi-annual, perhaps) meetingswith representatives of the agency Liaison Unitsand Information Committees to address con-cerns and solicit input on a variety of issues ofmutual interest.

An Institute for Transparency, possibly university-based, should be established for research andtraining in transparency issues, with a particularfocus on public servants.

Archiving work needs to be professionalizedand a recognized career path in the federalgovernment.

C. RECOMMENDATIONS FOR IFAI AND END USERS

Civil society organizations, with the support offoundations and other independent organiza-tions, should re-engage in the collaborativepartnership that originally advocated for theTransparency Law. This partnership should nowwork to strengthen and solidify the Law and aculture of transparency in Mexico. The partner-ship could focus on:

• strengthening the operation of the law throughstrategic engagement with IFAI and the agen-cies;

• ensuring that there is a consistent and produc-tive effort to engage the general public and abroader cluster of organizations in the actualuse of the transparency legislation;

• encouraging use of the law through the press,partly by improving distribution channels fornewsworthy disclosures of information;

• targeted training courses for using the law; and

4

• formalizing a mechanism for monitoring thework of IFAI and implementing the transparencylaw process generally.

NGO representatives, in particular, should betrained to use legal advocacy and theTransparency Law in a more focused way. Thisreport recommends a pilot project in which anexperienced international FOI lawyer is linkedwith an NGO in Mexico that may have a needfor effective use of government documenta-tion. The lawyer should be skilled in using legaladvocacy, public relations, and the freedom ofinformation system. That lawyer will provideongoing mentoring and advice to his or herMexican counterparts. He or she would adviseon how to identify important documents for thepurposes of specific goals, how best to requestthem, how to determine compliance and dealwith the compliance process, and how to utilizethe documents once they are obtained.

5

Introduction

Freedom of information — with its potential forenhancing the operation of government, citizenparticipation, and economic development — isa key marker of the advance of democraticinstitutions in Mexico. The unanimous passage in2002 of freedom of information (“FOI”) legisla-tion through both houses of the MexicanCongress was a victory for civil society groupsand journalists involved in a hard-fought open-ness campaign. The new law represented anunprecedented opportunity to address the ris-ing public demand for a government commit-ted to transparency, accountability, andrespect for a citizen’s right to know. Since then,the extent to which the political culture hasaccepted the imperative of transparency hasbeen significant. Since the federal law enteredinto force in mid-June 2003, official discoursehas increasingly invoked the concepts of“openness” and the “right to information.” Theeffort to secure adoption of the federal law alsospurred initiatives at the state level, where 24states have adopted comparable laws with fourmore in the process of adoption.

At the heart of the process for establishing andadvancing the goals of the law is the FederalInstitute for Access to Public Information(Instituto Federal de Acceso a la InformaciónPublica, or “IFAI”), created in June 2002.

This report examines the first years of the imple-mentation of the law and the functioning of IFAI.The report focuses on the perspectives of the

6

three groups with the largest stake in the lawand in IFAI: IFAI itself, the Federal Executiveagencies who are subject to IFAI’s decisions(hereafter referred to as “agencies” or “obligat-ed agencies”), and those citizens who use thelaw and IFAI (hereafter referred to as“requestors”) or otherwise benefit from the law(hereafter referred to as end-users, the public, orcivil society).1 The report, through analysis ofexisting documents, interviews with representa-tives from all groups, and outside expert knowl-edge, is intended to assess the strengths andaccomplishments of IFAI’s work to date in orderto demonstrate the extent to which it has ful-filled its mandates. It also seeks to provide astarting point for discussion on the TransparencyLaw’s implementation or design.

The federal Transparency Law represents a vitalelement of Mexico’s democratic transition. Thepervasive sentiment regarding IFAI and theTransparency Law itself is that the legislature hasenacted machinery that works. Besides the factthat IFAI has a reputation for more often thannot facilitating the release of information, thecommissioners and staff are accessible andhelpful and the agency is seen to be dedicatedto fulfilling the mandates of the law. In essence,the law has already brought about significantchange and this is to a large extent due to thetireless efforts of IFAI’s staff and commissioners.Attitudes toward government-held informationhave changed substantially. Every week ofevery month, data are provided to citizens thataffect their lives and help shine a light on gov-ernment practices.

At the same time, the challenge that all partici-pants in the process face at this juncture is tocultivate further, and embed in Mexican socie-ty, a culture of openness that reinforces thebreakthrough that the law represents. The pur-

7

pose of this report is to describe the multifac-eted role that IFAI — in connection with anextraordinary array of players in governmentand in civil society — has already played inestablishing such a culture and recommendsteps that can deepen and enhance it. This is achallenge that goes beyond ensuring that lawsare fully and properly implemented; a culture ofopenness requires the forging of a new relation-ship between citizen and state, one that fostersthe capacity for informed debate and decision-making that citizens need to genuinely partici-pate in a democratic society.

This report assumes the validity of claims aboutthe worth of laws like the one in Mexico: accessto information can foster economic develop-ment, reduce corruption, lower the cost of gov-ernment, and provide citizens with anenhanced sense of community. Only as IFAI andthe operations of the law become entrenchedand substantially transformative, will these goalscome into reach.

This report is written from an international per-spective. Mexico’s new Transparency Law hasthe potential to become a global model. Thereare unique opportunities for international learn-ing and modeling based on the Mexican expe-rience in implementing the transparency legisla-tion. Particular areas of focus for the internation-al community include the state of the art elec-tronic request processing system (Sistema deSolicitudes de Información, “SISI”), the focus ontechnology as a medium for distribution of infor-mation; the encouraging number of requestsmade under the law (more than 40,000 requestsprocessed in the first year of operation), andIFAI’s unique accountability structure. For thesereasons alone, there is significant internationalattention being paid to the emergence of afunctioning Transparency Law in Mexico.

8

Limited time and resources (and the relativeinfancy of the law) precluded a definitive analy-sis and limited the scope of the project.Nonetheless, the report is based on a thoroughreview of existing documents, numerous inter-views, and focus groups with individuals andofficials from IFAI, various government agencies,and members of the public who have used thelaw. The report also draws on the expert knowl-edge of the team members, each of whom hasextensive experience with freedom of informa-tion and organizational issues throughout theworld. Data collection was framed within aseries of questions that emerged from an initialreview of existing documents and areas thatwere perceived by the team to be of interesteither to those directly involved with theMexican experience (including the HewlettFoundation, IFAI and members of the Mexicanpublic) or to the international community inter-ested in promoting transparency and freedomof information.

An initial draft of this report was prepared,based on these interviews and documentaryresearch. The draft was distributed to a distin-guished group of experts, including IFAICommissioners, representatives of the govern-ment agencies who work with IFAI, leaders fromcivil society, journalists, and academics. Theseindividuals met to review the report during atwo-day workshop at the University ofPennsylvania. Other stakeholders were asked toprovide comments. The final report reflects theresults of this meeting and all other commentsreceived.

In addition, a user survey was prepared and dis-seminated through NGOs and the public to gar-ner the viewpoints of those who have used theIFAI system. The survey was designed to gatherquantitative data on end user perceptions of

9

IFAI. It is provided in Section IV.

Throughout our research, a single theme wastranscendent: notwithstanding progress thus far,creating a culture of openness remains an enor-mous challenge in light of the traditional closednature of Mexico’s government. Only throughconcerted effort will it be likely that the trans-parency laws are fully and properly implement-ed and a new relationship forged between citi-zen and state, one that allows citizens toengage in a dialogue with the state and partic-ipate in the decision-making processes of agenuinely democratic society. Our main objec-tive is to contribute to the discussion of how tobring this about; how, in the rhetoric of the day,one can deepen “the culture of transparency.”We focus on IFAI because of its central, definingrole at the federal level and because of its man-date to reach out and disseminate the cultureof transparency at the state level. To be clear,this report is not a “report card” on IFAI, but,rather, an examination designed to further IFAI’seffectiveness in developing and promoting thegoals of transparency and enhancing publicaccess to government information.

The report is in five parts. The first four sections,mainly descriptive, are: (1) an introduction tothe creation of IFAI; (2) a description of IFAI andits internal operations; (3) an examination of IFAIand its relationship to the external governmentagencies; and (4) a discussion of IFAI and theend user, or requestor. Because these topicscannot be discussed in isolation, there is signifi-cant overlap among the sections. The final sec-tion of the report is a compilation of recommen-dations that can serve as the basis for action byIFAI, government agencies, and organizationsinterested in strengthening transparency inMexico.

10

I. Background of IFAI

IFAI is an extraordinary institution that, in its infan-cy, is developing strong and pioneering mecha-nisms to enhance transparency of democraticprocesses in Mexico. It can do so for structuralreasons that are absent in other countriesaround the world (to be discussed below), andalso because of mechanisms of support fromcivil society, from stakeholders, and, to someextent, from institutions like the World Bank.

Since the passage of the 2002 Federal Law onTransparency and Access to Public Information(“Transparency Law”), each governmental enti-ty and agency must accept and respond tofreedom of information requests and proactive-ly disseminate information. The law applies tothe Executive, Legislature, and Judiciary, as wellas the autonomous constitutional entities suchas the Federal Electoral Institute (“IFE”), NationalCommission for Human Rights (“CNDH”), andthe Bank of Mexico.

The Executive branch, the Legislature, theJudiciary, and the constitutional entities arerequired under the law to promulgate regula-tions that will guarantee the law’s enforcementwithin their entities.2 Each of these entities hasenacted such regulations (reglamentos).3 TheExecutive branch enacted the “Reglamento de

11

la ley federal de transparencia y acceso a lainformacion publica gubernamental.”4

Also, in the case of the executive branch, whichincludes the Public Federal Administration, thePresident, and the Attorney General, theTransparency Law specifically provided for thecreation of IFAI, an agency that would reviewdecisions made under the Transparency Law.IFAI was set up to follow the “principles of open-ness for information of the government” andoperates as a “decentralized” part of the exec-utive branch. Under Article 61 of theTransparency Law, the Legislature and Judiciarymust establish equivalent entities and systems toIFAI.5

IFAI thus provides review of requests made bycitizens to the executive branch and its numer-ous agencies (close to 250 separate entities).Under the law, the agencies must respond tofreedom of information requests within 20 days,but may have another 20 days for good causeand if they notify the requestor. In those caseswhere an individual does not obtain the infor-mation requested, the requestor has the right toappeal the denial to IFAI. IFAI reviews eachcase within 50 days and decides whether theinformation should be released or may be with-held by the agency. In exceptional cases, IFAIcan request a one-time extension of 30 days toinvestigate the matter and 20 more days tocompile a response. If the requestor is still unsat-isfied, he or she can turn to the Supreme Courtto demand a review of the case. If IFAI decidesthat the information must be released, theagency does not have recourse to the courtand must release the information.

Civil society’s involvement in the work of IFAIand implementation of the Transparency Lawhas been important and influential throughout

12

the past two years. A loose-knit coalition of civilsociety organizations (known as “GrupoOaxaca”) achieved a major strategic victorywith the passage of the freedom of informationlaw. The group consisted of more than 100members, including national and local newspa-pers, human rights organizations and universities.The group was able to galvanize a broad coali-tion of congressional support that resulted inpassage of the initiative, bringing about one ofLatin America’s most promising freedom of infor-mation initiatives. “Grupo Oaxaca” has sincebecome more formalized as an NGO calledLibertad de Información-México A.C.(“LIMAC”), which is devoted to monitoring theTransparency Law and new Transparency Lawsat the state level. A number of influential andactive NGOs, some of which specialize in partic-ular areas such as the environment, haveremained actively involved in freedom of infor-mation and have collaborated as part of theColectivo de Transparencia.6 During the 2005International Conference of InformationCommissioners, these NGOs banded togetherto sign a “Commitment to Democracy” whichsought to encourage governments around theworld to pass transparency laws and to applyprinciples of transparency to government deci-sion-making, budgeting, and administrativefunctions.

13

II. IFAI Today

A. INTRODUCTION

IFAI is an independent body within the FederalPublic Administration headed by fiveCommissioners. The Joint Session (or plenary),the highest governing body within IFAI, is com-posed of the five Commissioners. IFAI is presidedover by a President of the Commission, electedby his or her colleagues for a period of twoyears, with the possibility of re-election for oneadditional term. The President, in addition to herown responsibilities as a member of the JointSession, acts as the liaison between the govern-ing body and the executive structure of IFAI,with the purpose of coordinating the executionand development of institutional policies andprograms.

In its short but eventful life, IFAI has had to meeta variety of demands: acting as a symbol oftransparency; establishing mutually respectfulrelationships with the government agencies itmonitors and reviews; providing training oppor-tunities for members of the government requiredto answer requests under the Transparency Law,and fostering public appreciation and usage ofthe Transparency Law. IFAI, the idea, has beentransformed into IFAI the reality, an entity with

14

established procedures, divisions, and staff. Theemergence of IFAI as a functioning organizationhas been remarkable in this time.

IFAI can only fulfill its extensive external objec-tives, however, if its internal workings are proper-ly functioning. This section explores some of theinternal intricacies of IFAI, including its structureand autonomy, day-to-day operations, and thespecific process of managing appeals.

B. IFAI’S MAJOR RESPONSIBILITIES

IFAI plays four main roles. It is an administrativecourt and regulator of FOI procedures; it is man-dated to protect personal data and the privacyof individuals; it is a training entity; and it is anadvocate for transparency. Each of these rolesentails a series of functions (to be discussed in-depth in the following sections). As an adminis-trative court, IFAI adjudicates appeals whenconflicts emerge between agencies and citi-zens regarding their right to obtain information.This involves not only making decisions aboutwhether the agency must release information,but also issuing guidelines to provide clarity andconsistency about the law. IFAI has issuedguidelines on classification and declassificationof information, as well as guidelines regardingarchiving and conservation of documentation.As a training entity, IFAI is responsible for educat-ing both agencies and civil society with respectto the intricacies of the Transparency Law andfreedom of information in general. Finally, IFAI ischarged with ensuring that sensitive information,such as personal data in the custody of the fed-eral government, is protected. In this role, it mustissue guidelines for protecting personal data

15

and guidelines for releasing it to its rightful owner whenrequested.7

C. AUTONOMY AND EFFECTIVENESS

One of the necessary preconditions for IFAI toestablish and deepen transparency is autono-my. If IFAI is to build confidence among civilsociety and government agencies, it must beseen to operate — and must operate — free ofdoubt of political motivation or influence. It mustbe a model for the rule of law, a flagship point-ing the way towards an improved culture ofgovernance. Its autonomy must also be consis-tent with acting responsibly and ensuring inter-nal transparency. It must not be perceived asbeing “above the law” and must follow the prin-ciples of transparency it has directed others tofollow.

One consistent theme that ran through many ofour discussions with IFAI Commissioners and sen-ior staff members is the concern that IFAI mayface challenges to its autonomy over the nextseveral years. While repeal or amendment ofthe Transparency Law appears to be unlikely,there are concerns that shifting political tenden-cies could create budgetary pressure on IFAI inCongress, cause IFAI’s ability to enforce compli-ance with its orders to be undermined, fosterresistance within the federal agencies, or allowthe federal government to act through thePresidential appointment process (or otherwise)to reduce IFAI’s independence and autonomy.

In response to these concerns, two major fea-tures of IFAI need to be stressed. First, IFAI is anindependent body within the Federal PublicAdministration headed by five Commissioners.The Commissioners are nominated by the

16

President of Mexico and approved by theSenate.8 They are appointed for a period ofseven years, although in order to establish astaggered replacement system, three of thecurrent Commissioners were appointed for aperiod of four years, and the other two for aperiod of seven years. Because the President ofMexico’s term is six years, without possibility forreelection, this ensures that in the future no onePresident will appoint all five Commissioners dur-ing his or her tenure. While IFAI is not a constitu-tionally autonomous organization, like theCommission on Human Rights or the FederalElectoral Institute, IFAI’s autonomy is achieved inlarge part through this appointment process.

Second, Article 33 of the Transparency Lawgrants IFAI “operational, budgetary, and deci-sional autonomy,” although these terms havenot been officially defined. There is a generalrecognition that “budgetary autonomy” shouldmean that IFAI may present its budget to thePresident and that the President may not objectto it. Congress would have oversight over IFAI’soverall budget, but could not change any indi-vidual line items in the budget. This feature ofIFAI’s autonomy is crucial to its continued credi-bility and independence and must be estab-lished and recognized by both IFAICommissioners and the President and Congress.

There is a widespread view that IFAI must contin-ue to solidify its position, both within Mexicansociety and internationally, in order to withstandpressure to turn back the clock on governmentopenness and accountability. Given the nearconsensus among IFAI officials and civil societythat freedom from political influence is critical toIFAI’s success, continued focus on budgetaryautonomy, support for the independence of theCommissioners, and strong support among thepublic for IFAI’s work, are crucial.9

17

D. ROLES AND RESPONSIBILITIES

1. Administrative Court and Regulator of Transparency LawProcedures

IFAI’s primary and most powerful role is that ofadministrative court and regulator. Analysis ofthis role is divided into three parts: IFAI’s role inadjudicating appeals, IFAI’s ability to enforce itsdecisions, and IFAI’s role in regulating agenciesunder the Transparency Law.

a. IFAI’s Role in Adjudicating Appeals

When requestors receive an unsatisfactoryresponse from a government agency underIFAI’s jurisdiction, they may file an appeal withIFAI. The proportion of appeals to requests forinformation has been steadily increasing, from2.6% in 2003 to 3.8% in 2004 and 4.2% to the earlypart of 2005. By acting on appeals, IFAI sets thetone for government action as a whole withrespect to freedom of information.

Within the agency, appeals are assigned to indi-vidual Commissioners for initial investigation andconsideration. If the petition lacks specificdetails that it needs, or if it is deficient in someway IFAI has a procedure to assist the requestorin correcting their appeal. The responsibleCommissioner then has the power to invite boththe requestor and the relevant federal agencyto meet separately with him or her to presenttheir arguments concerning the pendingappeal. The Commissioner is empowered torequire the production of the disputed informa-tion for the purpose of resolving the appeal. Atthe conclusion of this process, the Commissioner

18

recommends a resolution, which is then present-ed to the Joint Session for its approval. Proposedresolutions may be accepted, rejected, or mod-ified by a majority vote of the Commissioners. Byall accounts, this procedure has worked well,and there appears to be a collegial relationshipamong the Commissioners.

Action on appeals may result in a range of out-comes, including exacerbating relations withagencies, heartening or disappointing civil soci-ety, or setting new standards in construing thestatute. When IFAI resolves an appeal in favor ofa requestor, IFAI, in effect, issues an order direct-ing the relevant agency to release information ithas sought to withhold or that it claims does notexist. Despite this (or perhaps because of this),there are potential enforcement problems, aswe discuss below.

i. IFAI’s Response Rate

During its first 22 months of operation (throughApril 2005), IFAI received 2,591 appeals fromagency determinations on information requests.That number represents 3.5% of the 74,000requests submitted to federal agencies duringthe same period of time. Although the numberof appeals appears to be increasing (from 2.6%in 2003 to 4.2% up through spring of 2005), IFAIofficials consider the appeal rate to be low. It isdifficult to interpret the significance of the lowlevel of appeal activity; it could indicate eitherthat agencies are responding to requests in alargely satisfactory manner, or that dissatisfiedrequestors are not pursuing their rights to submitappeals. Institute officials believe that a combi-nation of both factors likely accounts for the rel-atively small percentage of requests that arethe subjects of appeals. At least one official

19

expressed the opinion that agencies are disclos-ing a greater amount of information than initial-ly anticipated. At the same time, it is likely thatmany petitioners are not sufficiently motivatedto pursue their requests further if they are dissat-isfied with the agency response, and severalusers we interviewed indicated that they hadgiven up on some requests. Some officials haveobserved that Mexican citizens do not expectto receive an adequate response from the gov-ernment, and that their preconceptions aremerely confirmed once they make a futileattempt to use the new law.

One possible reason for the low appeal rate —potential difficulty in submitting an appeal toIFAI — was discounted as a significant factor.IFAI officials believe that the appeal process isas simple as is the initial request process, andthat if a citizen has the ability to make a requestin the first place, he or she should be similarlyable to follow-up with an appeal. This is particu-larly true in the case of requests submittedthrough the web-based SISI system, whichaccounts for the vast majority of requestingactivity. Several requestors confirmed IFAI’sbelief.

IFAI’s statistics indicate that the appeal processhas resulted in the disclosure of some or all of thedisputed information in 56% of the casesbrought before IFAI. Initial agency non-disclo-sure determinations were upheld in 16% of thecases (in the remaining 28% of cases, theappeal did not proceed for a variety of proce-dural reasons). This early track record is likely tobolster public confidence in IFAI’s independ-ence. At the same time, IFAI’s demonstratedwillingness to reject agency attempts to with-hold information is likely to send a messagethrough the bureaucracy that transparencymust be taken seriously and that IFAI stands

20

ready to champion citizens’ rights of access. Byany objective measure, it appears that IFAI hasexercised its legal mandate aggressively and, inits role as an administrative court, hasadvanced the goals of the Transparency Lawby closely scrutinizing agency actions.10

Notwithstanding the early success of theappeals process, several IFAI officials expressedconcern over the increasing number of agencyresponses that assert the non-existence of therequested information (“no records” responsesor “inexistencia”). Overall, in 2004, 3.4% ofrequests resulted in no records responses. Upthrough early 2005, the percentage grew to4.2%. Given the lack of effective archiving prac-tices throughout the government, some numberof these responses is likely to be an accurateindication of an inability to locate the requestedmaterial. Additionally, it is often the case that acitizen requests information that simply does notexist in an agency’s record system. It is virtuallyimpossible, however, for IFAI to verify the accu-racy of a “no records” response (this is trueunder any FOI regime, as a degree of agencygood faith in accounting for responsive informa-tion must be assumed). The problem is exacer-bated by archiving deficiencies within theagencies, creating an environment where it istoo easy for a recalcitrant agency to deny theexistence of requested material. This providesanother compelling reason for IFAI, and thegovernment as a whole, to quickly address thearchiving issue.

One of the most commonly expressed concernswe heard during our discussions was that theTransparency Law has been used almost exclu-sively by those with access to the Internet. Thisconcept is more fully discussed in the end-usersection; however, one likely explanation for thistrend is that IFAI has emphasized the develop-

21

ment and use of a state-of-the-art, web-basedrequest generation mechanism, the SISI.Indeed, one IFAI official stated that IFAI was builton the concept of electronic access. At thesame time, IFAI has published a “simple form”which citizens can use to send in requests toagencies without using SISI, by mail, courier, orthrough the web.11 Though this form exists, how-ever, SISI still accounts for more than 90% of therequests submitted to date. Creation of SISI is anotable accomplishment, and it is likely themost advanced electronic FOI interface in theworld. It can be used both to submit initialrequests for information and to submit anappeal to IFAI. It can also be used to searchthrough previous requests and answers given byagencies to those requests. In short, the SISI sys-tem is a major accomplishment and significantsupport for FOI in Mexico, but as will be dis-cussed later, if the simple form is not used to agreater extent, the Law’s usefulness outside thecapital may be limited.

ii. IFAI and the Agency Response Rate

IFAI is concerned with the implementation ofthe Transparency Law at the agency level on avery broad level as well. They have several con-cerns about progress so far. First, IFAI officialsbelieve that the current level of requestingactivity (roughly 40,000 requests per year) is lowand note that a level of usage comparable tothat in the United States would result in one mil-lion requests per year. Unlike the experience inother countries, undue delay with the process-ing of initial requests has not been a problem.However, expanded use of the TransparencyLaw is a major goal of IFAI. It is unclear how wellIFAI and the agencies would be able to handlethe corresponding increase in appeals that

22

would most likely correspond to increasedrequests. Both agency officials and requestorsvoiced concerns about the timeliness of IFAIdecisions, especially for reported decisionsbecause of their caseload. While not necessari-ly widespread, IFAI should consider these criti-cisms and examine how the system can bestreamlined, especially in anticipation ofincreased requests. The implications of theincrease for the agencies are discussed below.

b. IFAI’s Ability to Enforce and Follow-up on its Decisions

IFAI does not possess the legal means to enforcecompliance with its orders. That responsibilityresides with the Ministry of Public Function(Secretaría de Función Pública – “SFP”). The SFPhas general responsibility for Mexican public ser-vants and in that capacity manages three mil-lion employees. Its primary role is to fight corrup-tion at all levels of the federal public administra-tion. If IFAI decides that documents required bycitizens have not been delivered it must send arecommendation to the SFP. The relationshipbetween IFAI, as overseer of the informationrequest response process and as arbiter of dis-putes between the agencies and citizensrequesting information, and the obligatedagencies, subject to IFAI’s mandates, is thusmoderated by the SFP.

One concern voiced regarding IFAI’s powersunder the Transparency Law is that agenciesare not sanctioned in a more immediate andautomatic manner. The administrators of the SFPnoted that the process is extremely lengthy andthat sanctions cannot be expedited since theymust go through a regular process established inthe Law on Public Administration; to do other-wise would open SFP employees themselves tosanctions.

23

This arrangement has only been minimally test-ed. As of early 2005, five cases had beenreferred to SFP, and in only one instance hadthe SFP actually ruled (in favor of the agency).The minimal resort to SFP may itself indicatesomething about the persuasive power of anIFAI directive; thus far, IFAI appears to possessthe requisite legitimacy to obtain compliancewith its orders. Similarly, IFAI’s statistics indicatethat in more than a quarter of the appeals filedwith IFAI, the agency releases the disputed infor-mation before IFAI issues a final decision, againsuggesting a degree of agency respect for IFAIand the appeals process.

However, as the system matures, and morereferrals are made, some observers haveexpressed concerns that the process may notallow IFAI sufficient power for enforcing its deci-sions. These concerns center on the question ofwhether the law deters bad behavior sufficient-ly. Solving this problem is complicated due thepolitical and administrative complexities of theissue. Though this report recommends that leg-islative changes be put off for the next couple ofyears and thus does not suggest that any radi-cal change be made as to IFAI’s sanctioningpowers, the law’s deterring power could poten-tially be increased. This could be done throughmore penalties, different penalties, or throughgreater enforcement of the existing penalties.Importantly, IFAI does not need to have sanc-tion power itself, but it could have a few moretools at its disposal such as the power:

• to search and seize documents;

• to compel a hearing with an agency officialwho has to report orally regarding the request-ed information if it does not exist in written form;or

24

• to require documents to be created in answerto a request.

In addition, the SFP could be tasked with enforc-ing mandatory sanctions should IFAI make afinding that the agency’s actions were appro-priate.

c. IFAI’s Role as a Regulator

As mentioned previously, IFAI is also chargedwith issuing guidelines on implementing theTransparency Law. Currently, IFAI guidelines (14to date) touch upon subjects such as:

• The reception, processing, decision-making andnotification of information requests or petitionsfor access or changes in personal data, as wellas information delivery

• How to notify IFAI about confidential files index-es and personal data systems

• The classification and declassification of docu-ments at the agency level

• Control and accountability over publicresources

• How to process personal data requests and cor-rections

• Archiving

• IFAI’s internal budget

• How to monitor and report budgets at theagency level

• Classification and declassification informationfor banks

25

IFAI has also issued numerous guidelines in con-junction with various government organizationsto assist in the implementation of the law. Inaddition, IFAI has entered into agreements withvarious agencies and organizations regardingthe law’s implementation.12

One of the major areas where IFAI’s responsibili-ty as regulator has come into play is in archiving.In the early stages of the creation and imple-mentation of the Transparency Law, it becameapparent that IFAI needed to issue guidelineswith respect to the archiving of public recordswithin the agencies. The law provided that thecreation of criteria to catalogue, characterizeand handle administrative documents was tobe assigned jointly to the National Archive andIFAI. The only guidance that the law providedthese entities was that archiving and conserva-tion criteria should be based on internationalstandards and best practices.

The complexity of this issue is exacerbated bytwo factors. First, there has been no archivingtradition within the Mexican government, result-ing in a huge backlog of unindexed documen-tary material and a lack of an “institutionalmemory” within agencies. A second factor isthat there has been no educational curriculumin archiving, resulting in a lack of qualified spe-cialists to perform the needed archiving work.There is, in short, a need to “professionalize”archiving work to the point that it is a recog-nized career path and job classificationthroughout the federal government.

IFAI has issued “General Guidelines” for theorganization and conservation of the archives inFederal offices and agencies. These guidelineswere issued January 27, 2004 and established

26

that the organization of archives should provideeasier and faster access to documents andensure their integrity and conservation. Theguidelines authorize the creation of an ArchiveCoordination Unit within each agency. In aneffort to professionalize archiving, the guidelinesclearly articulate the qualifications required tomanage the archive. The guidelines are alsovery specific as to how documents should bearchived according to the frequency withwhich they are used, their relevance, etc.

IFAI and the National Archive have created theAutomated and Integrated System of RequestTools and Archive Control (SistemaAutomatizado de Integracion de Instrumentosde Consulta y Control Archivistico) or SICCA. Itallows users to easily access archiving guidelinesand locate documents from all agencies. IFAIhas issued guidelines and trained governmentagencies in the use of SICCA. During the lastyear, IFAI conducted several courses on archiv-ing procedures, but this effort reportedly wasinsufficient to meet the demand for this kind ofspecialized training.

Unfortunately, these efforts, while commend-able, have not been adequate to solve the seri-ous problem of archiving in the country. Mexicolacks an archival tradition and it seems thatsomething stronger than guidelines will be need-ed to help agencies resolve their archivingneeds. There are several proposals for archivinglaws now pending in the Mexican Congress.

2. Training

A second function of IFAI is training. The statute’sprovisions mandate a fundamental change inthe way federal agencies view the nature and

27

maintenance of their information resources.There is hardly a task in which the payoff wouldbe greater than increasing the capacity of allparticipants to understand the law and improveits operation. This is more broadly discussed inthe section on IFAI’s relationship with govern-ment agencies.

In terms of IFAI training its own staff, trainingneeds are established from department todepartment. We are unaware of any systemicprocedures for evaluation and professionaldevelopment of IFAI staff, but heard from sever-al staff members that as specific questions orneeds arise, they are provided the resourcesnecessary to learn to address the problem, usu-ally through some sort of consultancy.

3. Advocates for Transparency and Interpreter of the Law

As the agency tasked with interpreting theTransparency Law and promoting its use, IFAIhas been engaged in substantial activities. In itsrole as an advocate for a culture of transparen-cy, IFAI seeks to lead by example and attemptsto make every aspect of its operations transpar-ent. Commissioners decided that all of theirdeliberations should be open and public, eventhough that degree of transparency is not legal-ly required. Similarly, information concerning thetravel expenses of IFAI officials is posted on IFAI’swebsite as soon as it is available. It is not yetclear whether these efforts have been success-ful in persuading other governmental entities toembrace transparency. At least one officialfrom a federal agency characterized IFAICommissioners as “fundamentalists” who con-vey an attitude of superiority over other civil ser-vants. Such perceptions diminish IFAI’s powers ofpersuasion, and could be overcome by

28

increased consultation and interactionbetween IFAI and other governmental entities.Such a process is likely to create a greaterdegree of trust and would enhance IFAI’s abilityto encourage a culture of transparency withinthe agencies it seeks to influence. More informa-tion about IFAI’s outreach activities is includedin Section IV.

E. INTERNAL AUDITS

Since its inception, IFAI has sought to establish amechanism for tracking and reporting on theimplementation of the Transparency Law. Whilewe are unaware of any systematic efforts cur-rently in effect for measuring the success of thevarious departments within IFAI, the entity as awhole submits an annual report to Congress ontheir work.

A brief review of the 2003-2004 report toCongress shows the extent to which IFAI is com-pleting its obligations under the law. This reportprimarily describes the steps IFAI has taken toestablish itself and some of its preliminary results.It also lays out some of IFAI’s priorities, includingwork on archiving and development of guide-lines for classifying information, promotion ofbroader use of the law for more specific reasonsby the public, and encouragement of websiteuniformity amongst the agencies (ensuring thatall the appropriate information is posted andaccessible). From our perspective, the annualreport seems to be complete and comprehen-sive.

29

F. RELATIONSHIP WITH STATES

If a deeply ingrained, robust “culture of trans-parency” is to be established in Mexico, it can-not be limited to the federal level. Thus, one ofIFAI’s mandates is to reach out to the state andmunicipal governments to promote transparen-cy on the local level. IFAI has established a spe-cial division that deals with local entities:Dirección General de Vinculación con Estadosy Municipios. It has also conducted a study ontransparency laws at the state level and hasdedicated part of its website to information onstate transparency laws.13

These efforts are clearly important. Because theactivities of the state and municipal govern-ments are closer to the daily lives of average cit-izens, the benefits of transparency can best bedemonstrated at the local level through the dis-closure of information held by those entities. Inspite of the limitations and difficulties of theexpansion of the Internet (coverage in Mexico isless than 11.8%) IFAI officials believe it mustincrease the public ability to access the infor-mation rather than require them to come theFederal District and “battle its great bureaucra-cy.” While not obligated under the law, but withthe authority to cooperate with local govern-ments,14 IFAI sees such outreach as an impor-tant component of its advocacy efforts.According to IFAI officials, there is presently areal commitment to openness in only one-thirdof the states, and local conditions vary through-out the country. Some states have ineffectivetransparency laws that amount to little morethan “window dressing” to quell publicdemands for greater transparency. Some of thestate transparency commissions (the localequivalents of IFAI) are well-funded, but othersare not. Morelos, for instance, has an effectivelaw but lacks the budget to properly implement

30

it. Sinaloa also has a strong law (the first to beenacted in the states), but the decisions of itscommission have not received broad politicalsupport. In some states, civil society groups andnewspapers are active advocates of trans-parency, but similar efforts are absent else-where.

The state transparency commissions (there arecurrently 18) attempt to follow IFAI’s model andseek guidance from IFAI on a continuing basis.In working with the local commissions, IFAI rec-ognizes that the states are autonomous andthat it cannot compel those entities to take anyparticular actions; it can provide advice andsupport local initiatives. Sharing its expertise andknowledge with state entities would be particu-larly valuable. Some of IFAI’s current priorities inthis area include the deployment of theINFOMEX system which will create a portal tofacilitate the submission of FOI requests to localgovernments. Funded by the World Bank, thisprogram will be implemented through localgovernments and will allow IFAI to promote useof the federal law at the state level. Fourteenstates signed agreements with IFAI in Februaryof 2005 to begin operating INFOMEX. Thesestates include Colima, Nuevo León, Durango,Coahuila, Guanajuato, Estado de México,Michoacán, Morelos, Nayarit, Puebla,Querétaro, San Luis Potosi and Sinaloa. TheFederal District of Mexico City also signed theagreement. So far, INFOMEX has attempted toachieve transparency at the local level throughposting information about local governmentson the web.

IFAI’s efforts to reach citizens at the state levelalso include the provision of technical supportto develop websites and other access tools,and assistance with the political work that isnecessary to build local support for transparen-

31

cy. For these efforts (particularly the latter) tosucceed, it is important that IFAI have a mean-ingful presence in the states. Currently, howev-er, its presence is limited by a lack of resources.There are currently six IFAI staff members respon-sible for working with 18 state commissions andofficials in three other states that lack commis-sions. IFAI also attempts to provide support tothe municipal governments, many of which arevery small and whose own resources are severe-ly limited. It appears that local transparencyactivities are significantly hampered by a lack ofresources, within both IFAI and the local govern-ments themselves.

Another challenge to the development of aneffective transparency movement at the locallevel is the need to build an organized con-stituency similar to the one that exists at the fed-eral level. At the federal level, there is a broadarray of civil society organizations which wereinstrumental in gaining passage of the federallaw and in testing and promoting it now. IFAI hasbeen successful in having these organizationsfrom civil society push for increased use of thelaw. At the state level, IFAI officials believe thatlocal business groups can play an important rolein promoting transparency, as they often seethemselves as the “natural challengers” of gov-ernment. Business interests were instrumental inbringing about transparency laws inCampeche, Quintana Roo, and Yucatan.However, there does not appear to be anynational coordination of business groups toadvocate for transparency legislation at thelocal level. Such efforts, if undertaken, could beuseful, as the local business organizations thathave been successful believe that their activitiescould serve as models for similar groups in otherareas of the country. Coordination of other nat-ural local constituencies, such as journalists,academics, and civil society groups could also

32

be pursued as a strategy. Local coalitions couldcampaign for the enactment of transparencylaws in the states that lack them and promoteeffective use of the laws in areas where they doexist. Forming such groups could be done inpartnership with organizations that have hadexperience in promoting the federal law.15

33

III. IFAI and the Agencies

A. INTRODUCTION

The effectiveness of the Transparency Law willultimately be measured by the behavior ofMexico’s hundreds of government agenciesand bureaus. In implementing the TransparencyLaw, IFAI is only one half of a critical partnershipthat must exist for freedom of information to suc-ceed. How IFAI interacts with these entities,whether it is viewed as a significant force, andwhether it is viewed as a partner in developinga pervasive and positive attitude towards trans-parency — will be a substantial measure of IFAI’ssuccess. The agencies obligated by the lawhave become more sophisticated, often highlycooperative, and continue, for the most part, towork to make access to information a reality.This section discusses some practical issuesregarding the agencies, and then focuses onthe relationship between the agencies and IFAI.

1. Who is Subject to IFAI?

The “obligated agencies” or “agencies” subjectto IFAI’s review include the federal publicadministrative agencies under the Public

34

Administration Law and decentralized adminis-trative institutions, such as the Office of theAttorney General of the Republic. There areclose to 250 agencies in this group, some ofwhich receive many information requests, someof which receive relatively few.

2. Structure of Agencies

In order to ensure that agencies are able tocomply with the law’s mandate and to ensureconsistency and uniformity across the manyagencies, the Transparency Law clearly delin-eates an internal structure for complying withthe law within each agency. Each departmentor agency must have or create a Liaison Unitthat will be responsible for collecting and dis-seminating information, processing requests,assisting individuals in elaborating requests, andpreparing and delivering the requested infor-mation and related notifications.

Additionally, each agency must have anInformation Committee which will coordinate allactions within the agency in relation to the law,ensure the efficiency of the request process,confirm, revoke, or modify decisions made bythe Liaison Unit with respect to the classificationof information, and ensure that classificationand archiving systems within the agencies are inaccordance with government guidelines.

35

B. SPECIFIC AGENCY ISSUES

1. Archiving

We have already touched on the importantissue of archiving, from the perspective of IFAI’sregulatory role. Managing archives — particu-larly the systematic archiving of records alreadyin existence, is a massive, almost insurmount-able, task. According to officials from theNational Archive, there are 32 miles of boxes ofarchived material, and at least 60% of the con-tent is unknown to the archivists themselves.More than 14 million records are entered eachyear. Both IFAI and the agencies agree that thisis a problem that must be addressed as soon aspossible. The task of bringing order to archivesmay feel Sisyphean at times, but some decisionsand prioritization must be made, so that agen-cies will know whether requested records existand have the means to identify and releasethem. In addition, in any legislative changeregarding archiving, there must be some con-sideration of the budgetary needs of an agencyimplementing new archival procedures.

2. Agency Response Time

The issue of response time seems to be a currentmajor strength of the agencies. The law requiresagencies to respond to requests within 20 work-ing days. Thus far, the agencies are beating thatdeadline, with responses being issued, on aver-age, within 11 working days. While this level ofcompliance with the time requirements is cer-tainly encouraging, and indicative of the agen-cies’ early willingness to meet their transparencyobligations, it is important to ensure the continu-

36

ation of this trend. Agency officials alreadyquestion whether they have adequateresources to handle the current number ofrequests (although the timeliness of responsesseems to contradict those concerns) and notethat personnel responsible for compliance withthe Transparency Law have other, competingduties. In most agencies, for instance, directingthe Liaison Unit is not a full-time position. Theadequacy of agency resources and ability tohandle an increased number of requests areissues that should be addressed collaborativelyby IFAI and relevant agency officials.

3. IFAI Training at the Agency Level

IFAI conducted a fairly broad training initiativeshortly after the Transparency Law was enact-ed. Its focus was on the general requirements ofthe law. Those training sessions were not, howev-er, specifically tailored to the unique needs andcircumstances of particular agencies. As agen-cies have become more knowledgeable aboutthe law, they have requested more specifictraining, which IFAI usually provides uponrequest. As one IFAI staff member noted, there isnow a need for “more complex training.”

Currently, IFAI conducts workshops onTransparency Law requirements, but there is aperception within some agencies that thesepresentations do not address the actual needsof their personnel. IFAI has been attempting toremedy this through solicitation of topics thatwould be of interest to agencies, but it is notclear how successful IFAI has been in theseefforts. The perceived shortcomings of IFAI inaddressing actual needs could potentially becorrected through better interaction with theagencies and joint coordination or design of the

37

training program, as discussed in more detailbelow.

IFAI personnel also respond to specific inquiries(by telephone) from agencies that arise on acase-by-case basis. It is not clear, however,whether these “real world” queries are used todevelop a formalized training protocoldesigned to provide agencies with the type ofguidance they require.

Finally, IFAI has recently launched an “e-learn-ing system” that has the potential to maximizethe available (and apparently limited) trainingresources to reach the largest possible numberof agency personnel responsible for compli-ance with the Transparency Law. This system,entitled e-FAI,16 includes detailed informationexplaining the guidelines on classification ofinformation, archives, and personal data.17 It isaimed specifically at liaison units and informa-tion committee officers.

IFAI has also made a major attempt to trainagencies in archiving. The National Archive haspartnered with IFAI in order to help agenciesclassify and save information. So far, IFAI hasprovided 28 archiving courses and 4,200 officialshave been trained. However, IFAI has not pro-vided training regarding specific criteria to beused when classifying information, nor has itbeen able to provide archival training specificto particular agencies. There also appears to belittle follow-up or monitoring to get a sense ofwhether these training programs made a differ-ence. On the one hand, agencies need furtherguidance in this area. On the other hand, manyagency officials recognize that IFAI does nothave the capacity to go into the agencies andunderstand every type of information particularagencies possess and direct how it should bearchived. The agencies themselves have an

38

obligation to internally assess information andimplement the general guidelines for their spe-cific information. Many of the classification deci-sions and criteria will, of necessity, be left to theagencies. At the same time, agency officialsrequire further guidance in how to classify infor-mation in order to lessen the likelihood that IFAIwill reverse their decisions under theTransparency Law. One way to alleviate thistension and to provide further guidance on spe-cific criteria would be to provide IFAI with theresources and ability to go into the field andspot check databases.

As noted, IFAI’s training efforts would likely ben-efit from greater consultation and interactionwith agency officials responsible for implemen-tation of the Transparency Law. These individu-als are on the “frontlines” and best understandthe day-to-day challenges of responding toinformation requests. They are also the onlysource of knowledge concerning the uniquecharacteristics and needs of their particularagencies (such as the special considerationsthat may relate to the kinds of information theymaintain and the ways in which that material isorganized). Another suggestion would be toinvolve NGOs who are particularly interested inthe work of the particular agency to provideguidance on how to classify and organize theinformation. While agencies should be establish-ing information collection systems, civil societycan and has helped with a lot of that work.

There is a perception within some agencies thatIFAI issues guidance “from the top down” with-out a real appreciation of the realities within theagencies. This perception, if allowed to grow,could result in increased agency resistance tothe cultural changes that the Transparency Lawis meant to foster and, ultimately, threaten IFAI’slegitimacy and autonomy. Training activities are

39

an obvious area where it would be useful tosolicit agency input. One constructive sugges-tion we received is that IFAI Commissionersshould convene regular (annual or bi-annual)meetings with representatives of the agencyLiaison Units and Information Committees toaddress their concerns and solicit their input ona variety of issues of mutual interest. Given thespecialized nature of the issues that are likely toarise in such meetings, it might be useful to con-vene sessions by governmental sector — securi-ty, economic and social might be a logicalbreakdown of agencies (rather than conveninga single session for all of the roughly 250 federalagencies). Through such a formalized consulta-tion process, agencies are likely to becomemore invested in the culture of transparencyand more supportive of IFAI’s work.

C. AGENCIES AND IFAI RELATIONSHIP: TENSE BUTAMICABLE

The relationship between the agencies and IFAIis complicated by IFAI’s dual roles of (1) over-sight (appeals) and (2) training and assistance.It is further complicated by the ambivalence ofmany agency staff to the concept of trans-parency, which has turned the traditional cul-ture of secrecy and withholding on its head. Therelationship between IFAI and the obligatedagencies highlights the difficulties of legislatingcultural change.

This is not to say that the agencies are unwillingto be part of this transition. Many agency offi-cials are proud to be part of a comprehensivetransparency regime, broader and more perva-sive than those existing elsewhere in the world.There is a substantial reservoir of support at the

40

agency level regarding the usefulness of IFAIand its positive attributes. Nonetheless, there area number of concerns voiced at the agencylevel.

1. Areas of Substantial Agreement

In general, at the agency level, there is a com-mitment to forge ahead and make access toinformation a part of the present government’saccomplishments. The tenor and actions ofPresident Fox’s administration are directedtowards leaving a legacy of commitment totransparency in Mexican society. In addition,because this is largely an accomplishment ofthe Mexican people, who pushed for the law,future administrations will find it difficult to pullback on the current level of transparency.

The new Transparency Law has already had apositive impact on many of what were seen tobe the more egregious abuses in the public sec-tor. One of these is the more or less completedisappearance of “aviadores” (governmentemployees who being on the payroll wouldshow up to get paid at the end of the monthwithout ever having registered for work). Thesepersons have been discouraged because pay-rolls started being published, at which pointmany of them were dismissed and others weresimply forced to stop collecting their pay-checks. The law has also had a positive effect ingovernment administration of concessions, bids,licenses, and permits because corruption is nowmore likely to be discovered when these docu-ments are made public.

Agency officials also note that, in general, signif-icant progress has been made regardingaccounting and budgetary transparency; the

41

government is increasingly providing this infor-mation to citizens. In addition, the procedure bywhich IFAI rates the web pages of the agenciesfor transparency has been very helpful. Theagencies compete for the best ratings on theirwebsites.

Another area of agreement can be found withrespect to promoting the law to the public.Some agency officials note that neither the lawnor IFAI have managed to reach the lessadvantaged social sectors. There is a percep-tion that only journalists and businesspersonswho are interested in doing business with thegovernment use the law. There is a need to pro-mote the law in society in general. The agenciesfear that if this does not happen, the law will beuseful only to groups that will use this informationfor private and selfish reasons and to obtainfinancial advantage. IFAI and civil society repre-sentatives agree that this concern needs to beaddressed.

Though a substantial amount of criticism hasbeen voiced regarding the implementation ofthe law at the agency level, in practice mostofficials support the law and recognize its impor-tance as a fundamental tool for reform in theMexican state. Various sectors of the govern-ment acknowledge that they must work withIFAI to be more efficient and comply with thelaw.

2. Agency Concerns

While there is substantial agreement and sup-port at the agency level for the TransparencyLaw and IFAI’s work in general, there is, as mightbe expected, also a set of concerns relating tothe workload associated with the Transparency

42

Law. One major concern for agency represen-tatives, is the lack of resources. The law was putinto effect without consideration of the need foradditional resources at the agency level for ful-filling the law’s mandates. Human and financialresources are lacking. For instance, the agencyliaison position was typically added to anemployee’s already existing workload. Furtherarchival duties will only increase the burden onthe employees responsible for those tasks.

Another major concern is that IFAI is sometimesseen as an omnipotent arrogant entity. Someagency officials express a suspicion that theCommissioners feel “superior” to other civil ser-vants. The fact that IFAI often issues its guidelineswithout consultation with the agencies has likelyexacerbated this perception. In one example ofa guideline that was found to be frustrating andmay have been seen as autocratic by someagency officials, IFAI made the decision that allits resolutions would be public. This step wastaken to show that IFAI itself was dedicated totransparency. However, some agencies com-plain that this provision can be harmful for somesensitive sectors of the government.18 Agencyofficials believe that IFAI is a part of the publicsector and that they must work together.Further discussion will address a need for com-munication to surmount some of these difficulttensions.

Another criticism is that there are only a fewlawyers serving as IFAI Commissioners; someagency representatives assert that because ofthis, legal issues may not be handled properly atthe IFAI level. They also assert that the majorityof IFAI commissioners do not understand howthe civil service works.

Another serious concern voiced at the agencylevel is the absence of an agency’s right to

43

appeal an adverse IFAI decision. Dissatisfiedrequestors may appeal IFAI’s decisions in thecourts, but agencies are not accorded thesame right. Some agencies are frustrated withthis discrepancy in the law. This may be anaspect of the law that should be addressed,although we do not believe that the existingapproach to appeal rights is inappropriate.

Another agency criticism concerns use of thenews media to compel agencies to be moretransparent. There is a perception among someofficials that IFAI uses the media with the pur-pose of biasing public opinion in its favor, to thedetriment of other governmental entities. IFAI,lacking real constitutional autonomy such asthat of the Commission of Human Rights, maybe using media exposure as a means toincrease its visibility and power, and that of theTransparency Law. IFAI clearly seeks publicrecognition for its mandate and activities. WhileIFAI may need to publicize certain disputes withagencies, the use of the media can be seen byother public institutions as a form of propagan-da rather than a legitimate effort to foster trans-parency. Some agencies believe they havebegun to develop a more mature relationshipwith the public, and that contentious issuesshould not be debated in the media, butinstead addressed through more dialogue.There is no reason to consider IFAI’s use of themedia at this point, however, to beinappropriate.

There are several practical issues that could beresolved through further communication.Agencies would benefit from more informationregarding classification of materials. Becausethe existing guidelines are general, there havebeen cases where different agencies haveinterpreted them differently. More in depthresearch and training on this issue should be

44

conducted at IFAI.19

Another difficulty, mentioned by some officials,has been that mechanisms for freedom of infor-mation requests have been confused with basicadministrative questions from the public. Theestimates of how serious a problem this is mayvary, but it is possible that a significant numberof queries fall in this category--where there is, inessence, no freedom of information request.Better education of the public should improvetheir performance, but IFAI may examine thepossibility of creating a filter in SISI that asks theuser to perfect the question or explains to theuser the difference between a purely adminis-trative question and a freedom of informationrequest.

Another practical matter where additional guid-ance may be helpful involves the publication ofthe day-to-day activities of agency officials.Many officials do not have a clear understand-ing of what should be public and what canremain private. While the public may want toknow (and need to know) details of agency offi-cials’ agendas, there are cases in which officialsdo not maintain formal agendas because it isnot mandatory. IFAI should provide agencieswith clear mandates that allow them to betterunderstand when the daily activities of govern-ment employees should be recorded andmade public.

D. BUILDING BRIDGES FOR COMMUNICATION

IFAI recognizes the existence and validity of cer-tain of these complaints and tensions, while oth-ers have not received significant or (in the viewof some agencies) appropriate attention. Thevolume of complaints, however minor some of

45

them may be, is in itself a source of concern. Abetter system of communication between IFAIand the obligated agencies could help addresssome of these grievances before they causepermanent damage to the IFAI-agency rela-tionship and, ultimately, successful implementa-tion of the law.

IFAI must make an effort to clarify the reach,extent, and fundamental policies underlying thelaw on an ongoing basis. While there has beena substantial amount of training at the agencylevel on how to implement the law, respond torequests, and interpret guidelines, there are sev-eral areas of fundamental interpretation andimplementation of the law where there are dis-agreements between IFAI and the agencies.These areas may need to be considered anddiscussed as part of IFAI’s training agenda inorder to broaden the culture of transparency atthe agency level and avoid serious disputesbetween the agencies and IFAI.

IFAI’s ability to bridge this gap and help createa more open bureaucratic culture will dependin large part on its ability to reach out to theagencies, and combat tendencies towardsecrecy. While the long-standing cultural tradi-tion of secrecy has not yet been eradicated,agency officials, requestors, and IFAI all notedthat there is already a perceptible shift, smallthough it may be.

46

IV. IFAI’s Relationship with the End User

A. INTRODUCTION

Among the broad charges given to IFAI in theTransparency Law, the first is “promoting anddisseminating the use of the right of access toinformation.”20 In this section we focus on use ofthe law by private citizens, institutions, journalists,academics, businesses, and non-governmentalorganizations (“NGOs”). This section will addressthe promotion and distribution of the right ofaccess to civil society, including areas of defini-tive success and areas for continued improve-ment. One of its charges, serving as the agencyof appeal in case of noncompliance by a fed-eral agency, has been previously addressed inthis report. Because IFAI’s political viability turnson its relationship to the end user and the publicperception of its effectiveness in meeting its pro-motional objectives, our comments are direct-ed at the mode by which IFAI goes about thesetasks and the understanding of IFAI among thewide consuming public.

It has been four years since passage of the lawand only three years since citizens began tointeract with the system, which is not enoughtime to fully assess the quality of this interaction.Perhaps the only concrete conclusion that canbe drawn about IFAI’s interaction with citizens atthis point is that there need to be increasedefforts to promote and publicize the law. Ourinterviews and research confirmed that the per-

47

ception of IFAI and the broader concept oftransparency varies widely throughoutcivil society.

Underlying all aspects of the relationshipbetween IFAI and civil society is a recognitionthat successful implementation of theTransparency Law will require a major shift, notonly in the government, but also in the mind-setof Mexican citizens. As Issa Luna Pla wrote in2002, “[t]he Mexican public has a long roadahead in developing a culture of seeking andacquiring information, a problem shared incommon with Latin American countries withlong histories of secrecy.”21

B. LEGAL BASIS FOR A RELATIONSHIP WITH THE ENDUSER

In essence, there are three ways in which IFAIinteracts with the public:

1. Through requests to the obligated agencies(which IFAI facilitates);

2. Through the appeals system, in cases of unsatis-factory responses; and

3. Through the publication and distribution of infor-mation that expands the public’s knowledgeabout the Transparency Law.

We will discuss each of these three types ofinteraction as a mechanism for exploring civilsociety’s relationship with IFAI.

48

C. MECHANISM FOR REQUESTS: PROS AND CONS OF THEINTERNET AND THE TRANSPARENCY LAW

A defining moment occurred early in IFAI’s histo-ry when it decided to emphasize the Internet asa mode for facilitating requests for information.While requests for information can be submittedin person or by mail, 92% of all current requestsare made via the Internet.22 Access to theInternet, then, is perhaps the best indicator ofwhether individuals or entities are likely to exer-cise their rights under the Transparency Law. TheInternet is also most often used to submitappeals to IFAI in cases of unsatisfactoryagency response. Investing in the Internet as afavored mode of access was a strong and sig-nificant initiative for IFAI and the executiveagencies. Such electronic systems certainly rep-resent the future and they allow for easy andefficient use of the FOI system. Overall, thereappears to be a high level of satisfaction withthe ease of filing a request on-line using SISI, indi-cating that the forms were quite simple to use.However, there is broad concern about theextent to which reliance upon the Internet limitsparticipation by the broad public. While the effi-ciency of the computerized system is remark-able in terms of broad public access for free-dom of information, reliance on Internet accessis a problem in digitally divided Mexico. Currentstatistics show that only 11.8% of the Mexicanpopulation has access to the Internet,23 andthough other means, such as hand-delivery andpaper mail, are available for submittingrequests, their use is considerably less for severalreasons, including the large amount of time itcurrently takes to use non-Internet methods anddecreased anonymity.24 In order to expand useof the law, IFAI should consider innovative waysto reach the broad public that are not basedexclusively on access to a personal computer,

49

but also minimize the amount of time it takes tosubmit a request and ensures a large degree ofanonymity.

One good approach may be the expansion ofthe E-Mexico initiative, which currently providesmore than 3000 kiosk access points around thecountry in an effort to bring a variety of govern-mental services to under-served segments ofthe population. SISI has yet to be integrated intothe E-Mexico portal, but IFAI currently is negoti-ating for such access.25 Another possibleapproach would be to explore the develop-ment of “low-tech” means to submit informationrequests, such as making simple paper formsmore broadly available, such as distribution atpost offices and other locations that serve citi-zens on a regular basis.

General indications point toward urban use ofthe law, and its use by individuals of higherincome. While it is important to broaden usage,a variety of factors should be kept in mind:Mexico is not alone in having a system of uptakeof FOI rights skewed in this manner. Patterns ofuse of transparency laws most often track pat-terns of use of similar legal tools. Furthermore,NGOs and other institutions that use the lawmay represent large numbers of people in thebroader public that do not make direct use ofthe law themselves.

In addition, much emphasis is, quite properly,put on an anticipated metric of compliance orsuccess: how many FOI applications are made,what is the rate of disclosure, what is the paceof disclosure. All these are important. But our dis-cussions suggested several other points: First,there are different uses of the law each of whichis relevant for a different sector. Some uses (suchas access to medical records) provide for large-scale citizen satisfaction. Others, such as the

50

case of the investigation into genocide duringthe 1970s, are more important politically andsocially rather than as a private individual mat-ter. Both of these types of cases need to be pur-sued, but large-scale satisfaction with the law isonly likely to begin to occur when cases thataffect an individual’s every day life are publi-cized and become more common. The larger,more political cases are important because thelaw can then be said to improve policy out-comes, contribute to democratization orenhance economic growth. If the transparencylegislation is meant to be an instrument ofdemocratization or economic development, animportant consideration is the purpose for whichinformation is being requested. How do usagepatterns ultimately impact the broader public?Who is using the system and why? Does usagelead to increased public knowledge and sup-port for the Transparency Law? Are the peopleusing the law able to successfully use the infor-mation they receive and publicize it if it is rele-vant to the general public? IFAI and NGOsshould consider these two tracks and theseunderlying questions when pursuing claims anddevising their transparency initiatives.

D. TYPE OF INFORMATION REQUESTED

IFAI has developed a basic categorization sys-tem with which to track the types of informationbeing requested (see Appendix I for requests bysubject in the years 2003 and 2004). Technicalissues in data presentation make comparisonbetween the two years of data-gatheringimprecise and the information does not alwaysanswer the questions that are most interesting,such as whether use of the Transparency Law isleading to a more informed electorate con-

51

cerning the most pressing issues, or rather,whether use of the law is producing primarilyscandal-oriented information that tends todevalue faith in the political system. We recom-mend that IFAI and civil society review the typeof data that is being collected for usability andrelevance.

Many of the individuals we interviewedobserved that the vast majority of requests todate involved the expenditure of public funds.These have ranged from the amount of moneyspent by the President’s wife on clothing to therents paid by agencies for their office space.Information concerning the salaries and travelexpenses of agency officials has also been afrequent subject of requests. This focus on theuse (and potential abuse) of public funds isunderstandable given the history of govern-mental corruption in Mexico; the concept of“accountability” is often synonymous with fiscaloversight. Nonetheless, the Transparency Lawwill not truly be mature until it is used to accessinformation about a broad range of officialactivities and is seen as a critical means of facil-itating informed public debate on policy issuessuch as environment, education, labor and for-eign affairs. It is our opinion that the media hasan important role to play in any shift in use ofinformation and type of information that isdeemed relevant, as further discussed in thenext section.

E. OCCUPATION OF REQUESTOR AS PROXY FOR TYPE OF USE

In the absence of a broader study to examinehow information is being used once obtained,occupation categories can serve as a rough

52

surrogate for likely data usage. IFAI, similar tocategorizing types of requests, collects data onthe occupation of requestors. There are fivebroad categories outlined in IFAI’s statistics:entrepreneur, academic, government, media,and other. These categories are somewhatproblematic because it is impossible to deter-mine whether requests are related to therequestor’s occupation (most likely not the casein requests for personal data, for instance), howrequested data may actually be used, what the“other” category might include, and what jobcategories might be found in each grouping. Anotable grouping that is not listed is NGOs andsimilar institutions that promote the public good.Notwithstanding these deficiencies, the dataIFAI collects, coupled with the qualitative datacollected for this report, indicate several note-worthy issues.

First, in contrast to generally held beliefs regard-ing freedom of information acts and their useful-ness for the news media, journalists believe thatthe Transparency Law has had a rather imper-ceptible impact on journalism in general. Inexplaining why, journalists alluded to the follow-ing factors:

• Successful journalism often depends on theimmediacy and novelty of news. The responsetime required by the law can range from lessthan 20 days to 5 months, if all appeals andextensions are used, which lessens the usefulnessof the law for journalistic purposes.

• Specialization and investigative journalism con-stitute a relatively small percentage of the over-all Mexican media, and are almost exclusivelylimited to print media. (IFAI officials confirmedthat the majority of those attending the trainingcourses they have provided for journalists repre-sent the print media.)

53

• The number of relevant training courses avail-able and accessible to journalists are perceivedto be insufficient. This includes courses offeredby NGOs and IFAI. It was not clear how thecourses could be improved or whether anincreased number of training sessions wouldactually be attended.

There does seem to be a slight shift in attentionby the news media to the Transparency Law.One IFAI official noted that an editor of a promi-nent newspaper had instructed his journalists tosubmit two or three FOI requests each week. Theeditor felt that if he could get a 10% responserate to the requests, it would be worth the effort.While journalists might be expected to makesuch use of the law, there are reasons to ques-tion whether that expectation is realistic. Theproblem is exacerbated in cases where agen-cies resist disclosure and requestors must resortto the appeals process. It will clearly take time toencourage and train journalists to use the law increative and effective ways most likely to pro-duce high-profile stories that will galvanize pub-lic support for transparency.

A recommended strategy for better engagingjournalists is creating a forum to strengthen rela-tionships between journalists and NGOs andother civil society institutions, such as academicorganizations. These institutions are more likely tohave the time, interest and dedication to pursuehigh-profile or noteworthy cases. Once a FOIrequest is submitted, the NGO would then workwith the interested journalist to publish the story,emphasizing the mechanism by which the infor-mation was obtained (the Transparency Law).Such “success stories” likely would produce thepositive public impact that is necessary to raisethe profile of the Transparency Law.26

54

In other countries, the creation of centers forinvestigative reporters have proved to be animportant component in the promotion of a cul-ture of transparency. In Mexico, the organiza-tion Periodistas de Investigación, which is affiliat-ed with the organization Investigative Reportersand Editors, Inc. (IRE), appears to be a growingnetwork of investigative journalists and may bea good partner to consider in future FOI trainingfor journalists. It might also be helpful to establishinvestigative reporting fellowships and awards.For example, The International Center forJournalists runs an investigative reporting projectfor Armenian journalists who spend four weeks inthe U.S. learning about investigative reporting,and sponsors an ongoing series of workshops inLatin America called “Media and Freedom ofExpression in the Americas” that is especially forjournalists. IRE gives annual awards recognizingoutstanding investigative work and helps identi-fy techniques and resources for completing sto-ries.

According to IFAI’s data, there has been asteady decrease in the percentage of entrepre-neurs using the law in comparison to othergroups, from 22.8% in 2003 to 18% in the first partof 2005. Several interviewees expressed thebelief that the law was mostly being used bybusinesses to improve their competitive position.However, there is a perception that “entrepre-neurs,” or those using the law for business pur-poses, are requesting information more inten-sively than suggested by the available data.

Academics are using the law more than anyother single group, and this group is the only oneto increase its percentage of use in each con-secutive year. It is possible that this group mayinclude civil society organizations that arerequesting information for public benefit initia-tives, such as LIMAC and FIDAC (Fundación

55

Información y Democracia), as many of theirstaff members and affiliated researchers haveacademic ties.

The potential users of the Transparency Law bestsituated to maximize the impact of disclosuresappear to be NGOs that specialize in particularpolicy areas. For example, a local environmen-tal group that actively tracks industrial activitiesin its community would have the requisite knowl-edge and incentive to seek information con-cerning hazardous materials used in local facto-ries. An agricultural or rural advocacy organiza-tion would be similarly equipped to requestinformation about government farm subsidies.

There are three types of general expertise thatmust be present for an NGO to make use of ahigh-profile request and answer under theTransparency Law: expertise in public relations,legal expertise or knowledge about where topursue claims under the Transparency Law, andjournalistic expertise. In the legal area, what isparticularly needed is a working understandingof the government so that the NGO is able tosend the request to the appropriate branch andoffice of government. What these NGOs appearto require is greater expertise in using the law tosupport their ongoing work. Many NGOs are cur-rently mainly staffed with activists who are nottrained in any of these particular areas.

This deficiency could be remedied in a numberof ways, including the provision of training forNGO staff in the use of the federal law (andlocal equivalents) and mechanisms such as theexisting Transparency Collective, which seeks tofacilitate the submission of FOI requests througha web portal based on suggestions receivedfrom NGOs throughout the country. Afterrequests are inputted however the NGO mustbe ready to use the information it gathers. It

56

must have a public relations staff member whothinks about how to publicize the information. Inaddition, when the NGO is first planning its proj-ects it must think strategically about how thetransparency law request is going to further theproject, where it fits, and what they need togain from it in order to help the project succeed.In other words, if the transparency initiative is notintegrated into the project overall it will be diffi-cult to know how to use the information for thatproject when and if it finally arrives.

The approach most likely to yield the desiredresults would be to ensure that research-orient-ed NGOs have adequate staff resources,preferably an attorney trained in the effectiveuse of the law and staff members who arecapable of, first, strategically planning their useof the law and, second, “packaging” the infor-mation obtained from the government in orderto tell compelling and informative stories to thegeneral public. Such internal NGO resourcescould be supplemented through liaisons withattorneys outside of Mexico with longer experi-ence using FOI laws for public interest purposes.

F. AGE: A POSSIBLE CULTURE SHIFT?

The average age of requestors is in the mid-twenties, with more than 50% falling in the youngprofessional age group of 20-34. Preliminary2005 statistics show the age range is flatteningout (i.e., becoming more uniform across agecategories), but in the first few years since thelaw’s enactment, young professionals have ledthe way. This provides some evidence of theemergence of a new culture of transparency,which appears to have positive implications forthe future of transparency in Mexico. The flat-tening of the age profile is to be expected as

57

requests for personal data increase, as olderpeople may be more likely to seek data con-cerning their pensions, medical files, and so on(indeed, the Social Security institute receives thehighest number of requests). However, it is ourrecommendation that IFAI work to continue toengage the younger demographic in order toensure a cultural shift in favor of transparency.There may be an additional benefit to strongengagement by younger participants in the sys-tem, as they are the ones most likely seekingnon-personal data, the disclosure of whichwould have a larger impact since release ofsuch information is more likely to be of interest toa broader group of society.

Several individuals from all sectors commentedon the need to engage the younger generationin order to ensure a culture of transparency andaccess to public information. While IFAI’s statis-tics indicate that young professionals are cur-rently engaged, it is necessary to also engageschool-aged children. We were told that theMinistry of Public Education has embarked on aprogram that includes the promotion of trans-parency in schools. A review of the Ministry’swebsite identified two programs the Ministry isimplementing, one that promotes transparencyat more of an administrative level, focusing oninternal transparency (El Programa Operativopara la Transparencia y el Combate a laCorrupción) and one focusing broadly on incor-porating new forms of investigation into educa-tion (Enciclomedia), including the use of elec-tronic media to access information. While theMinistry should be applauded for these note-worthy initiatives, and while we recognize thatthe Ministry has many mandates, we believethat a more direct emphasis on governmentopenness and FOI would be beneficial in pro-moting a long-term culture of transparency inMexico.

58

G. MAKING THE REQUEST: GETTING SMARTER

The Transparency Law provides that any personwho desires to submit an information requestmust present a description that is clear and pre-cise regarding the information they seek.27

Agencies complained early on that the requestswere so broad or unspecific that they were bur-dened with excessive research, at a minimum,and in several instances were unable to provideany responsive information, resulting in a “norecords” response. Article 6 of the statute pro-vides that the law be interpreted in favor of theprincipal of information, and that agenciescarry a greater part of the responsibility for pro-viding information, even when a request is notas clear as it might be. This principle recognizesthat the power balance favors the agenciesbecause they know what information exists ordoes not exist and the requestor is not necessar-ily privy to the same knowledge.Notwithstanding this requirement, educatingcivil society in framing more precise requestswould benefit the entire process. This couldoccur through training courses emphasizinghow to research and prepare an effectiverequest, not just how to submit one.

There is evidence that not only is the law beingmore broadly used, but that civil society isbecoming more savvy in its use of the law.Several sources across all sectors indicated thatusers are generally submitting better, more spe-cific requests. Further, several NGOs are helpingto hone use of the law by running “test” casesthat look to maximize the potential use of FOI.Given the benefits of encouraging clearlydefined requests, IFAI could consider ways tobetter educate those making requests in termsof being more specific in their request, whichmay be accomplished through dialogue withthe agencies concerning this issue.

59

H. CIVIL SOCIETY PERCEPTIONS OF THE TRANSPARENCYLAW, FOI PROCEDURES, AND STAKEHOLDERS

End user perceptions regarding theTransparency Law, FOI procedures and stake-holders have slowly started to change as a resultof the outreach efforts that IFAI, agencies andother organizations have initiated. Nonetheless,there is still a great level of skepticism and lackof clarity about many aspects of the proceduresand the roles of each of the stakeholders. Thissection seeks to explain some of the end users’perceptions and misperceptions.

1. Perceptions about the Transparency Law and Access toInformation

As described throughout the report, one of themain challenges has been creating a culture oftransparency and generating a shift in the mind-set of Mexican civil society. In a study conduct-ed by REDES Marcas con Estrategia, at therequest of IFAI in August 2004, there was signifi-cant evidence of citizens’ awareness of the exis-tence of transparency laws and a culture oftransparency. In this study, respondents oftenassociated these concepts with anticorruption,and ethical and moral values, such as honesty,sincerity, and clarity. At the same time, thereseems to be distrust and skepticism with respectto the law and IFAI’s ability to effect change.

When asked about IFAI specifically, respondentsconsidered it to be an important institution butfailed to associate it with freedom of informa-tion. Rather, IFAI was seen as an oversight entitymuch like the Federal Electoral Institute. Its func-tions are barely known. That lack of knowledgeappears to generate feelings of distrust among

60

citizens. The study also found, however, that, ingeneral, the law is considered important forMexico. General conclusions from this study willbe included in the following sections.

2. Perceptions about Stakeholders

Regarding the role that each of the stakehold-ers plays, there is some evidence that the publicdoes not distinguish between IFAI and the agen-cies, such as observations to the effect of “IFAIdenied the request for X information” where inreality it was an agency that denied therequest. On the other hand, there also appearsto be a perception that IFAI provides accounta-bility mechanisms to prevent agency abuse. It isseen as the agency charged with defendingthe public from agency abuses. Both percep-tions can ultimately have negative conse-quences for IFAI. In the first instance, the publicmay lose confidence in IFAI’s ability to fulfill itsresponsibility of implementing the law. Results ofthe REDES report seem to confirm this. “It is nec-essary to explain that IFAI does not provide infor-mation, but rather provides support to ensurethat government does so . . . public informationis perceived as government information, andtherefore is perceived as manipulated anduntrustworthy.”28 Because IFAI’s role is partly torequire the agencies to fulfill the requirements ofthe Transparency Law, the public may perceiveIFAI as their champion against inherently obsti-nate agencies and this could lead to a self-ful-filling prophecy of excessive antagonismbetween IFAI and the agencies.

While IFAI may wish to create a clearer publicperception of its mandate, it is probably moreimportant to develop public faith in the FOI sys-tem as a whole, rather than focusing on

61

increased public understanding of the particu-lar bureaucratic components.

Another thing worth noting is that IFAI’s authori-ty and jurisdiction do not extend to the judicialand legislative branches and independentagencies. While each of the branches of gov-ernment is subject to the law, the non-executivebranches have the responsibility under theTransparency Law to establish similar or equiva-lent independent authorities such as IFAI toadminister their implementation of the law. Boththe legislative branch and the judicial branchhave committees that review requests andaccept appeals when FOI requests are denied.However, the committees in both cases are notindependent. Several sources indicated thatthe exclusion of these entities from IFAI’s over-sight and their lack of any independent reviewprocess impedes broader public acceptanceof the notion that the government can truly beheld accountable.

3. Perceptions about the Transparency Law Process

Regarding the requesting process in general,there continues to be skepticism and some dis-satisfaction with the way that agencies areresponding to information requests. Much hasbeen published about agencies’ high responserates, although, as previously noted in the IFAIsection, there is concern that the number ofcomplete, affirmative responses is much lowerthan reported. The current statistics are not ableto capture the degree to which a sufficientresponse is provided, and the only existingmeasure of dissatisfaction is the number ofappeals. However, there are strong indicationsthat not everyone who is unhappy with theiranswer appeals. Interviewees noted that some

62

responses are incomplete and that “no records”responses are becoming more common. Wealso heard several first-hand accounts of individ-uals not receiving any response from anagency.

The truly important issue, however, is the overalllegitimacy of the law with the public, whichcomes with better compliance all around. As aresult, we recommend that IFAI work closely withthe agencies to promote a united commitmentto openness that is shared by both entities.

I. PUBLICATION AND DISTRIBUTION OF INFORMATION

The Transparency Law provides that IFAI is to“conduct and publish studies and investigationsto further distribute and expand the knowl-edge” of the Transparency Law.29 As a result ofthis mandate, IFAI has engaged in a broad pub-lic relations campaign that, in addition to pro-moting transparency, has served to heightenthe public recognition of the agency. IFAI hasdeveloped a series of pamphlets, posters, radio,and television announcements, academicessays and a comprehensive website to pro-mote its work and the concepts of FOI andtransparency. The chart below describes themajority, if not all, of the media (print and elec-tronic) outreach efforts of IFAI.

In terms of the success of these outreach mate-rials, there is a limited amount of data that pres-ent inconclusive findings. For example, theREDES study inquired whether users remem-bered seeing and/or hearing the video andaudio clips (further discussed below). Ten per-cent of those interviewed said they recalledhaving heard the clip on the radio and 18%remembered seeing the video clips on televi-

63

sion. However, our review of the REDES reportdid not find any indication as to whether theresponse was high or low, indicated limitationson the outreach of the clips or spoke to thequality of the clips.

IFAI’s principal mechanism for disseminatinginformation about its activities, and theTransparency Law generally, appears to be itswebsite, which is comprehensive and informa-tive. The reach of the website, however, is limit-ed by the low rate of Internet access in Mexico,as previously discussed. Given the limited reachof any Internet-based resources, it is importantthat IFAI continue to make use of other out-reach mechanisms, such as public televisionand radio and “low-tech” means of disseminat-ing materials to the general public. Systematicinteraction with local NGOs would also be avaluable strategy.

1. Publications and Materials of IFAI

IFAI officials recognize that it is difficult to showcitizens how the Transparency Law affects theirlives, and that an understanding of the benefitsof openness is a prerequisite to fundamentalcultural change. To that end, IFAI began run-ning radio and television advertisements in 2005to promote the general concept of open gov-ernment and transparency. The ads are quitebasic and do not include specific informationabout IFAI or the Transparency Law; they mere-ly seek to portray access to information as ben-eficial. IFAI plans to follow-up with public opinionpolling to assess the impact of the advertisingcampaign. Future ads will focus on “success sto-ries” showing the value of access to specificinformation (medical information, tax records,etc.).

64

Appendix II presents a brief depiction of thematerials that have been used by IFAI in order tocreate awareness about the Transparency Lawand IFAI. We have thoroughly reviewed thismaterial and sought to identify the main mes-sages IFAI is trying to send and the type of audi-ences it seeks to address. We also provide abrief assessment of the materials’ usefulness instrengthening the relationship between IFAI andcivil society.

2. Other Approaches to Promoting the Law

In addition to publications and materials, IFAIhas used other approaches to promoting thelaw. In order to reach out to those individualswho do not have access to resources in MexicoCity, IFAI has organized several events in thepast (with others planned for the upcomingyear) in order to bring information directly to thestates. So far, forums and “Jornadas deTransparencia” have taken place in Cancun,Yucatan, Chihuahua, Monterrey and AguasCalientes.

Another approach that is being consideredwould rely on educating and empowering civilsociety organizations, as surrogates for the pub-lic. This will involve training community groups inusing the Transparency Law and surveying themon the kinds of information that would be mostuseful to them. Increased use of theTransparency Law by such organizations, cou-pled with effective strategies for “packaging”and disseminating information obtained fromfederal agencies, would provide a criticalmeans of public outreach to demonstrate, in avery concrete way, the value of governmenttransparency. We provide several recommen-dations for achieving this goal in Section V.

65

J. PARTNERSHIPS AND COLLABORATION

As noted, IFAI has signed collaboration agree-ments with more than fifteen other entities andorganizations, ranging from other governmentagencies (such as the Federal Electorate andNational Commission on Human Rights), to uni-versities and NGOs. These collaborations arelargely mechanisms for IFAI to share the role ofpromoting the Transparency Law throughoutMexican society, and include agreements toconduct courses and workshops about theTransparency Law, to promote general knowl-edge of the law and to generally promote trans-parency and the right of access to public infor-mation. We were unable to determine theextent to which IFAI is engaging in such partner-ships in a coordinated and methodical mannerto maximize impact as opposed to signingagreements with any credible organization thatexpresses an interest in promoting transparencyfor the sole sake of their publicly acknowledgedsupport. While both scenarios seem to havebenefits for promoting the law, we wouldencourage IFAI to coordinate its partnerships insuch a way as to strategically and efficientlyreach out and educate the broadest publicpossible.

K. SURVEY ON APPEALS TO IFAI

The appeals process represents the “teeth” ofFOI in Mexico. It provides individuals dissatisfiedwith the performance of any given federalagency the opportunity to challenge theagency directly, while simultaneously allowingthe agency to defend its action in a neutralenvironment. As was previously mentioned, in itsfirst 22 months of operation, IFAI received over

66

2,500 appeals, with 56% of these appeals result-ing in the disclosure of some or all of the disput-ed information while in 16% of the cases theaction of the agency was upheld. The remain-ing cases represent appeals that did not pro-ceed for a variety of procedural reasons.

As part of the process leading to this report, asurvey was devised and implemented to lookmore carefully at the appeals process from theend-user perspective. A link to the survey wasposted on IFAI’s website and was distributed toa broader network in Mexico via e-mail, result-ing in 69 individuals who had filed appeals withIFAI completing the survey. Because these indi-viduals self-selected, and the sample size wassmall, the findings are not definitive; however,we do believe they provide some insight intothe appeals process and warrant further investi-gation.

67

Of the respondents, 78% were male and 22%female, with nearly 80% stating they had a uni-versity degree or higher (and 45% of those hav-ing at least some post-graduate education). Thisresult may also be somewhat determined byvirtue of the survey being located online andthat all respondents were at minimum comfort-able with working in an online environment.

As seen in figure 2, the vast majority of appel-lants are over 26 years, with 18-25 year olds rep-resenting approximately only nine percent ofappeals. This is somewhat puzzling, given thatthe age group 20-34 represents 50% of all FOIrequests and we would expect to see a compa-rable percentage of appeals from this group.This may be another indication that there is acertain level of sophistication needed to partic-ipate in the appeals process, though it couldalso be that the 18-25 age group is making FOI

68

requests of a simpler/more straight forwardnature and so appeals are less likely. We recom-mend that IFAI monitor the age group makingappeals to ensure that the appeals process issufficiently accessible to all groups, as thatdemonstrates further buy-in to the process.

In line with expectations, given the location ofend-users making requests, 51% of appellants(See figure 3) indicated they were in MexicoCity and the surrounding suburbs and 43% werefrom another state of Mexico. Thus, the appealsprocess does not appear to further inhibit thoseoutside of the capital area, at least where theyhave access to the Internet.

Through the survey, we were able to look closerat the occupations of appellants and the rea-sons for their appeals. (See figure 4.) Of surveyrespondents, 75% had submitted at least oneFOI request as a part of their work, with 60% indi-cating they had made more than one request.

69

Additionally, 73% reported submitting at leastone FOI request for personal reasons, with 48%indicating they had made more than onerequest. This would indicate that those likely toappeal are using the system frequently and aredoing so both for their work and their own per-sonal reasons and are, therefore, fairly experi-enced with the system. As such, their need forsupport for navigating the system is low, which isreflected in the low number of respondents indi-cating the need for assistance from IFAI in theprocess. The experience of frequent users of theprocess can benefit agencies that must fill FOIrequests by helping to create clearer guidelines.Therefore, it is as important for IFAI to cultivate itsrelationship with frequent users as it is to reachout to new users. We would recommend creat-ing some process that will ensure that IFAI is ableto obtain periodic feedback from those whouse the system the most.

70

Based on appeals data, activities and programsare the most common type of data requestedfor which an appeal is made, followed by infor-mation collected/produced by the agencyand salaries and benefits. Agencies’ failure togive a complete answer to a request is the mostlikely type of response to elicit an appeal. Nearly40% of appeals were due to an agency giving apartial or incomplete answer. Figure 4 showsdetailed information on reasons for the appeal.

In looking at the distribution of appeals by typeand agency response, 11% of appeals were foractivities and programs where the agencygave a partial or incomplete answer, represent-ing the largest single grouping. This was followedby appeals based on FOI requests for informa-tion collected/produced by an agency, alsowhere the agency gave a partial or incompleteanswer, representing 9% of the group. While theexact nature of the requests are not known, wewould assume that as agencies are able to fur-ther organize their websites and files, theappeals in this area should go down. We recom-mend that IFAI continue to monitor the distribu-tion of type of information and reason forappeal over time to identify both problematicareas and areas for training purposes or those inneed of additional guidelines.

While there was no one agency singled out forappeals, the types of agencies with the greatestnumber of appeals appear to be focused onthose organizations overseeing financial trans-actions (banks, budget offices, etc.), utilities andeducation. This is not surprising, since each ofthese areas represents a subject matter that is ofbroad concern to the general public.

Regarding the outcomes of the appeals, 53%reported that the appeal was still pending. Ofthose reporting a decision, 76% indicated that

71

IFAI found that the agency was in error and hadto rectify the situation, while IFAI ruled in favor ofthe agency in 24% of the cases. Even with theself-selective nature of the respondents, thesepercentages are roughly similar to the 56/16percent ratio reported by IFAI. Respondents indi-cated that for the most part agencies seem tohave complied completely or nearly complete-ly with IFAI’s decision for fuller disclosure in about75% of the cases.

Finally, respondents were overall neutral aboutwhether IFAI’s decisions are based on clear cri-teria and are consistent. This is not an unexpect-ed finding with a young organization that is stilldeveloping a critical mass of precedencecases. Not surprisingly, respondents whoseappeals were granted by IFAI were much morelikely to agree that IFAI’s decisions were bothconsistent and based on clear criteria thanthose whose appeals were denied. Regardless,given its infancy, there is evidence that IFAIneeds to be especially diligent to show clearrationale and consistency in their decisions inorder to promote confidence in their work.

This was a limited survey, seeking only views onthe appeals process and not the implementa-tion of the Transparency Law overall. For thefuture, IFAI may consider recreating this surveyon a broader scale to incorporate each of thepopulation groups it serves. For example, if thereis a group of users that only interacts with IFAI bypostal mail, IFAI could mail out a copy of the sur-vey at some point in the process and requestthat users mail it back. This would ensure thatIFAI learns whether people without access tothe Internet find the process user-friendly andaccessible to the same degree as those withaccess to the Internet.

72

L. CULTURE OF OPENNESS

It could be argued that one way to measure thesuccess of IFAI’s publication and distribution ofinformation is the extent to which a culture ofopenness is developing in Mexico. While there isno concrete evidence that we can point to,individuals throughout civil society believe thata culture of openness is, in fact, beginning toemerge in almost every sector.

Another proxy for measuring the culture ofopenness is the Transparency InternationalCorruption Perception Index, which looks athow business people and country analysts per-ceive the level of corruption in a given country.Through a series of questionnaires to variousbusiness people and analysts, a compositescore is created for each country as to their per-ceived level of corruption. On a 1 to 10 scale,with 1 being highly corrupt, Mexico has consis-tently scored around 3.6. In 2001, the yearbefore the FOI law came into existence, Mexicoranked 51st in the world, with a score of 3.7. In2002, that dropped to 57th place, with a scoreof 3.6, and remained at 64th place with a scoreof 3.6 in both 2003 and 2004.

However, what the TI perception index may notcapture is a grassroots cultural shift towardsopenness and freedom of information, whichwould not be seen at a technical business level,but would be more manifest in other areas, suchas human rights and environmental protection.As previously discussed, academic use of theTransparency Law has continued to increase asa percentage of all FOI requests, while entrepre-neurial requests have actually declined.

IFAI has already begun to capitalize on the ini-tial momentum for freedom of information inMexico. For example, in December 2003, IFAI

73

conducted an evaluation of all agenciesregarding their compliance with the basic infor-mation publication requirement of the law.30 Theresults for each agency, often dismal (an aver-age score of 36.6% for all agencies), werereported back to each agency, but were notreleased to the broader public (although theywere available upon request). IFAI decided toput pressure on the agencies to improve theircompliance, and indicated that future reportswould be widely publicized. In February 2005,the most recent report published indicated thatthe general average on compliance had risento above 90%. While time may have been a fac-tor in the improved rate of compliance, thethreatened publication likely expedited the

process in many agencies.31

There appears to be a public benefit to the per-ception that published reports compelled theagencies to increase their compliance, as thiswould demonstrate both agency responsive-ness to public opinion and civil society’s abilityto bring about positive change and accounta-bility in the government, a key goal of the law.32

In summary, there are numerous positive indica-tions that a culture of transparency is emergingthroughout Mexico. In the following Section, wepresent several steps that can be taken to con-tinue that trend.

74

V. Recommendations

A. RECOMMENDATIONS TO IFAI

Of the major questions already raised, one isfairly basic: what structural changes, if any,should be made to the law with respect to IFAI?In the last several years, there have been manyproposals for legislative modifications; changesrelating to autonomy, the appointment of com-missioners, IFAI’s powers, and division of respon-sibilities. As we studied the practices and experi-ences of the last two years, we concluded thatthe emphasis, in the near future, should be onoperational issues and not legislative reform.Indeed, our suggestion would be for a moratori-um on considerations of legislative change sothat more experience can be gained, and therelationship between IFAI, the obligated agen-cies and civil society can become richer andmore suggestive.

Here the potential for improvement, with limitedbut deliberate steps, is quite great. IFAI — andthe machinery of transparency in Mexico —already is recognized as pathbreaking. Moremust be accomplished to reinforce the under-standing of IFAI’s accomplishments and those ofthe coordinated efforts of IFAI and the agen-cies. What is being done in Mexico is a contribu-tion to the development of similar approacheselsewhere. More should be done to underscore

75

the international importance of these efforts.

1. IFAI and the States

Another way for IFAI to extend its impact is towork with the federal representatives in thestates to make them agents of transparency,with sufficient information and motivation toassist those in the states who wish to use the fed-eral apparatus more effectively. Likewise, IFAIshould continue its efforts to encourage theenactment and use of state and local trans-parency laws. In support of those efforts, IFAIshould attempt to increase its staff resourcesdevoted to working with state and local govern-ments and interest groups.

2. Supporting IFAI and Institutions of Transparency in Mexico

Within Mexico, greater efforts should be madeto articulate the benefits of transparency. Weapplaud the preparation of a book of casestudies highlighting IFAI’s activities and the oper-ation of the transparency regime. A “citizen’sguide” to IFAI, written in accessible languageand instructing individuals and broad-basedNGOs will also go a long way to exploring howto use the law and explaining the benefits it canprovide. IFAI’s multiple roles are easily confusedby the public, creating potential obstacles forpromoting overall transparency. IFAI is unlikefederal entities such as the Federal ElectionCommission and the Human Rights Commission,which oversee the entire government withrespect to specific actions and are tasked withpreventing overt abuses. IFAI, in contrast, mustmanage a careful partnership with the obligat-ed agencies and the public.

76

Therefore, we recommend that IFAI shouldundertake a targeted marketing campaign thatpromotes confidence in the overall FOI system(as opposed to IFAI itself) and engages parts ofthe population that are currently underrepre-sented in usage of the Transparency Law. Forexample, a push around personal data—thetypes of data the government gathers on indi-viduals and how that information is used, mightengage a part of the public that does not cur-rently see any personal reason to pursue or sup-port the transparency law. Specific groups thatwe identified where IFAI might focus include:youth in the public school system, indigenouspeople and people without access to theInternet. Along with targeted outreach, we rec-ommend that IFAI and others promoting FOIand transparency review existing informationdistribution systems for effectiveness in relationto reaching target audiences, both in terms ofactual physical reach (are they getting theinformation) and understandability (is the infor-mation presented in a way that they can under-stand it).

3. Collaboration

IFAI’s internal resources are limited, and as suchIFAI cannot possibly reach all possible groups byitself. To remedy this, IFAI has recognized thevaluable contributions that can be made byother organizations, both governmental andnon-governmental, and has established collab-orative agreements with several such organiza-tions. However, these agreements seem toreflect a general acknowledgement of collabo-ration, but lack specification of actual targetedefforts. We recommend that IFAI review existingcollaborative agreements and assess the extentto which its partners have engaged in strategies

77

outlined in the agreements. Further, we recom-mend that IFAI establish a formal mechanism forcoordinating the efforts of those who enter intocollaborative agreements in order to leverageresources for maximum utility. This would entailcoordinating both an organization’s efforts inconjunction with IFAI and also with other organ-izations. Finally, we recommend that IFAI work tointegrate agencies into collaborative agree-ments and that other organizations consider for-malizing partnerships with specific agencies withwhom they work on a regular basis on FOI issues.It is important to note that this recommendationrelates to efforts overseen by IFAI and should notbe confused with our recommendation for civilsociety to collaborate as a separate and inde-pendent entity towards re-engaging in a broad-based effort to strengthen the overall imple-mentation of the Transparency Law.

4. Autonomy

Autonomy is clearly an important issue. But, theprocess and mode of building and focusing sup-port for IFAI can have many elements. Ratherthan legislative or constitutional change at thispoint, we urge consideration of the creation ofa Committee for the Protection of IFAI’sAutonomy. Such a body could be composed ofdistinguished citizens who are (if this is possible)“above politics.” The function of the committeewould be to act as a “firewall” (to use a muchoverused term) against attempts to weakenIFAI, and to develop non-partisan support forIFAI. Such a committee might include authors,publishers, iconic political figures, and respect-ed academics. It should have a relatively smallmembership (perhaps seven members), anexecutive director, and a small budget. It wouldbe an advocate for the transparency process

78

and IFAI’s continued autonomy, encouragingthe appointment of apolitical Commissioners,for example, and be available for critical com-mentary if there were attempts to infringe IFAI’sautonomy. In addition, there needs to be formalrecognition of the definition for budgetaryautonomy at IFAI and in Congress and with thePresident.

One criticism of the current system (oftenvoiced within the obligated agencies) is thatIFAI is not sufficiently accountable—agencydecisions are reviewed by IFAI, but there is noreview or oversight of IFAI’s actions. We believethat accountability, in these kinds of structures,comes over time. If there is, as we propose,more frequent and more institutionalized con-tact between IFAI and agency representatives,the resulting dialogue will create a forum foraccountability. We believe there should be leg-islative review of IFAI’s operations, but only instudied and deliberate intervals—for exampleonce every two years. There could also be aninstitutional review (perhaps by a panel includ-ing a judge and representatives of civil societyand the agencies) every two years. What shouldnot be created, we believe, is a case-by-caseprocess for appealing IFAI’s decisions, whichwould make the system more expensive andcumbersome.

While there is much discussion indeed criticismof the dual judicial and executive roles of IFAI,we believe there is a strong basis for maintainingthe current structure. IFAI’s strength and stand-ing is largely a function of its ability to adjudi-cate disputes. It is respected in its advocacy roleand in its recommendations to agenciesbecause of its power to decide. It is possible,after five years of functioning, when the cultureof transparency is deepened and the institutionsmore mature, that IFAI’s structure could be re-analyzed.

79

B. RECOMMENDATIONS CONCERNING IFAI AND THE AGENCIES

1. A Working Relationship

Another set of concerns deals with IFAI’s rela-tions with the obligated agencies. A number ofapproaches were considered as to how toimprove discourse between IFAI and agencyrepresentatives. One step would be to profes-sionalize, further, the preparation of documentsproduced as part of the appeal process. Moreparticularly, it is necessary to ensure that IFAI’sdecisions are reasoned, that they follow legalarguments, and that they overcome a notionthat results vary with the individualCommissioner involved in a particular case. Theobligated agencies require the guidance thatcomes from reasoned opinions. Just as theagencies expect reasoned opinions, IFAI needsits consideration of appeals to be based ondocuments that are well reasoned and providean adequate understanding of the agencydecision and the reasons for it.

A key issue we identified was the need to createinstitutional dialogue between IFAI and theagencies. Our recommendation is to establishbimonthly meetings between the agencies andIFAI. These could be sectoral meetings. Thiswould entail clustering agencies into groupssuch as Finance, Health, Security, Public

80

Services. Each sector would settle on a mecha-nism to have meaningful dialogue between itsofficials (a mix of liaison officers and informationcommittee members) together with representa-tives of IFAI or Commissioners themselves. Thesemeetings would not be occasions for the reliti-gation of cases. Instead, there would be analy-sis of trends (an abnormal pattern of appeals orreversals, an abnormal pattern of delay, needto improve systems of document provision,modes for promoting the law, etc.).33

Alternatively, the IFAI Commissioners could con-vene regular (annual or bi-annual, perhaps)meetings with representatives of the agencyLiaison Units and Information Committees toaddress their concerns and solicit their input ona variety of issues of mutual interest. In manyways, given the specialized nature of the issuesthat are likely to arise in such meetings, theserecommendations overlap. Even such regularmeetings could be divided by sector. Throughsuch a formalized consultation process, agen-cies are likely to feel as though they are able tocontribute or (buy in) to the process and thusbecome more invested in the culture of trans-parency and supportive of IFAI’s work.34 .

2. Training

More can be done to enhance IFAI’s role in pro-viding training for the obligated agencies. Forexample, an Institute for Transparency, possiblyuniversity-based, should be established forresearch and international debate on trans-parency laws – their purposes, uses, and imple-mentation. It should be a home for the most dis-tinguished transparency practitioners, bothwithin and without the government. It shouldprovide ongoing evaluation and critical per-

81

spectives on IFAI, the agencies, and the end-users. Its activities could include conferenceswith NGOs and training meetings with counter-parts in executive agencies. Given the largenumber of obligated agencies and the impor-tance of freedom of information issues, thereshould be a greater effort to professionalize FOIpractitioners. Regularized training, perhapseven certification, can contribute to this processand help imbed transparency in the politicalculture.

3. Archiving

Lack of archiving competence and proceduresthroughout the government is a major obstacleto effective implementation of theTransparency Law. Unless information is organ-ized and maintained in a logical and consistentmanner, agencies are likely to assert that theyare unable to locate responsive material whena request is received (indeed, “no records”responses are a growing phenomenon and asource of increased concern within IFAI). IFAImust devote substantial resources to trainingagency personnel in this area. There is, in short,a need to “professionalize” archiving work tothe point that it is a recognized career path andjob classification throughout the federal govern-ment.

4. Institutionalizing Dialogue between IFAI and Other Similar Entities

International comparison reveals several differ-ent levels of institutionalized dialogue betweenbodies such as IFAI and other equivalent enti-ties. At the most general level, IFAI already col-laborates with other information commissions

82

and commissioners through the InternationalConference of Access to InformationCommissioners. Indeed, IFAI was host to themost recent and largest gathering in Cancun inFebruary 2005. In the final Declaration, the com-missioners pledged themselves to “continuouscooperation.”35 However, there is a lack of infor-mation about such cooperation. The question iswhether it means anything in practice. Existinginter-commission communication and/or col-laboration should be enhanced to allow thecreation of a wider network of transparency lawusers and agencies around the world. IFAI couldseize this moment and serve as the focal pointfor a global study of the existence and effect ofsuch cooperation — to which the world’s com-missioners are committed.

C. RECOMMENDATIONS FOR END USERS

1. Implementation of the Transparency Law

Civil society was instrumental in the passage ofthe Transparency Law. The groups that workedfor the law’s enactment have remainedinvolved in its implementation, largely throughthe formation of specialized NGOs. However,overall, the significant civil society presence thathelped push for the law’s passage has beenmuch less visible and appears to have been lesscohesive during the first years of the law’s imple-mentation. We recommend that civil societyorganizations, with the support of foundationsand other independent organizations, re-engage in the collaborative partnership thatadvocated for the law in order to strengthen itsimplementation.

83

Ideally, there would be four components tosuch a partnership. First, the partnership wouldconsider ways to strengthen the operation ofthe law through strategic engagement with IFAIand the agencies. Second, the partnershipwould consider a comprehensive strategy tostrengthen outreach to the general publictowards a culture of transparency. Third, thepartnership would consider means for morestrategic use of the law, such as distributionchannels for newsworthy disclosures of informa-tion and targeted training courses for using thelaw. Such training would include better formula-tion of requests, and negotiating the appealsprocess. Fourth, the partnership would considerformalizing a mechanism for monitoring thework of IFAI and implementing the transparencylaw process generally.

2. Training for NGOs on Enhancing Public Interest Advocacy

One can think of enhancing IFAI’s status by look-ing at its internal apparatus or, instead, byincreasing “demand” through use of theTransparency Law. As important as it is to exam-ine and improve internal operations and rela-tionships with obligated agencies, we believethat the key to IFAI’s long-term vitality is improv-ing the way in which civil society makes use ofthe law. In short, making “demand” moresophisticated will, in the medium run, improve“supply.” It is relatively easy to conclude thatsocietal support for transparency needs to benurtured and the “culture of transparency” mustbe deepened to sustain IFAI as an institution andto bring greater openness and accountability toall levels of Mexican government. The more dif-ficult question is how to make that happen.

Average citizens must see concrete examples

84

of how access to government informationimpacts their daily lives. IFAI should provide indi-cators of success, examples that illustrate, invery clear terms, the benefits of access: forinstance, disclosure of information concerningthe presence of hazardous chemicals at a fac-tory and the use of that knowledge by theneighboring community to demand theremoval of the material.36

We recommend that IFAI and others supportingFOI training should seek to reach those most like-ly to use the law to advance larger public goals— democratization, economic development,environmental protection, and so on. For exam-ple, an effort might be made, in conjunctionwith selected NGOs, to focus on particular sub-ject matter areas where FOI requests might con-tribute to public understanding of significantpolicy issues. One example would be increasedtraining, and other kinds of support, for use ofthe law by NGOs working with indigenous peo-ple. Already there have been moves in thisdirection, but more could be done. One couldhave special workshops for NGOs in this area,consider how SISI and other mechanisms work inrelationship to this constituency, encourage dis-cussions between the NGOs and the obligatedagencies in the field involved. And here — aselsewhere — in addition to increasing the num-ber of requests for documents, there should besystematic discussions between those who needinformation and the relevant agencies concern-ing disclosure policies. If more “automatic trans-parency” or voluntary disclosure of informationcould be achieved, there would be less relianceon the formal machinery of the TransparencyLaw and IFAI.

85

3. Legal Advocacy

We recommend training for NGOs to use legaladvocacy in a more focused way. Internationalmodels, such as the U.S., demonstrate howsophisticated “public interest” practitionershave developed the skills and experience toboth submit well-targeted requests to govern-ment agencies and publicize the informationobtained in response to those requests. Theseactivities often have a dual effect. They pro-mote the public good in general, and themechanism for obtaining the information (FOI)contributes to an awareness on the part of thegeneral public that there is a right to accessgovernment information and that preservationof that right is an important component of ademocratic society.

We specifically recommend a pilot project inwhich an experienced international FOI lawyer,who has worked with a specific NGO over time,be linked with a group of five lawyers or legalassistants in NGOs in Mexico that have a needfor effective use of government documenta-tion, and that such a lawyer have an ongoingmentoring and advising relationship with his orher Mexican counterparts. He or she wouldadvise on how to identify important documentsfor the purposes of specific goals, how best torequest them, how to determine complianceand deal with the compliance process, andhow to utilize the documents once they areobtained.

Similarly, the experience developed by NGOs inother countries with a longer tradition of govern-ment transparency should be shared with theirMexican counterparts, through seminars andworkshops designed to bring internationalexperts together with NGOs. Because humanand financial resources that can be devoted to

86

the implementation of the law are limited, IFAImust have a strategy to identify its highest prior-ities with respect to outreach activities.

4. Media Outlets and Information Gained through FOI Requests

The media is critical to both publicizing public-interest information and to promoting overallgovernmental transparency. We recommendthat NGOs establish a formal mechanism forcreating links with journalists interested and will-ing to publish public interest stories. This shouldbe an ongoing network and may require train-ing for both journalists and NGOs on how tostrategically support each other. Further, werecommend that investigative reporting beenhanced by strengthening organizations thatsupport journalists doing such reporting, such asPeriodistas de Investigación and IRE.37 Suchstrengthening may include the creation of a for-mal center to work with journalists and localNGOs to develop in-depth reports on under-reported issues of public interest.

D. FINAL COMMENTS

As a group brought together from a variety ofbackgrounds and expertise, with exposure tothe development of information access struc-tures in many states, we were deeply impressedwith the advances we saw in Mexico; the enthu-siasm, the professional development, and thecooperation of the different actors within soshort a time. Our emphasis in conducting thisstudy was on finding ways to maintain themomentum of the early efforts in support oftransparency. Our recommendations and con-clusions are intended to foster, enhance, and

87

embed the extraordinary progress alreadyachieved. We applaud the efforts of IFAI and itsstaff, the agency officials responsible for imple-menting the law, and the civil society organiza-tions that advocated in support of the law andnow seek to promote its use. All of their effortscontribute to important reforms that have thepotential to make Mexico an internationalmodel for transparency in the 21st century.

88

End Notes

1 The term “civil society” is used in this report to refer loose-ly to politically engaged organizations and individualswho have sought to test the law and promote the law’suse as well as those citizens who are generally active inthe arena of freedom of information either because theywrite about it, provide training on how to use the law,advocate further compliance with the law, or advocateother reforms necessary to ensure full implementation ofthe law.

2 In addition, every public entity with a web site is requiredto publish all draft laws, regulations, decrees, competitivetenders, and other administrative measures 20 daysbefore they go into effect or are submitted to thePresident to sign.

3 The Reglamento for the Camara de Diputados can befound at:http://transparencia.diputados.gob.mx/index.php?node=2.

Information about the Senate’s regulations can be foundhere: http://www.senado.gob.mx/transparencia/con-tent/marco/index.htm.

Information about the Supreme Court’s transparency reg-ulations can be found on its website (under“Transparencia.”): http://www.scjn.gob.mx/inicial.asp

4 See the Controller’s website for the text of the law: avail-able at: http://www.funcionpublica.gob.mx/leyes/leyin-fo/lftaipg.htm.

These regulations are not debated in Congress orreviewed by the other branches, but they are published

89

in the Official Journal.

5 Each of these entities has established a system for admin-istering appeals when a request is denied within theirbranch of government. While the systems set up a personor committee to take appeals, none of the entities ensurethat this person or committee is independent orautonomous from the rest of the branch. See the regula-tions cited in footnote 2 for more information.

6 See http://www.mexicotransparente.org.mx/

for more information on the Colectivo.

7 We do not address the personal data issue at greatlength in this report. IFAI has only recently begun to focuson the issue.

8 To be eligible for appointment, proposed Commissionersmust meet the following qualifications: Mexican citizen-ship, outstanding professional credentials, and public oracademic experience related to the subject matter ofthe Transparency Law. They must not have served as sec-retary of state, head of an administrative department,attorney general, senator, federal or local deputy, headof a political party or association, or head of governmentof the Federal District, within a period of one year prior toappointment.

9 The question of agency independence has proven diffi-cult in Mexico as well as in other countries. This might bebecause, even in countries where there is a claim and anappearance of “independence” and “autonomy,” it isnot always clear what that means, how it is guaranteed,or whether any institutional procedure/structure can betransplanted easily to another context. Globally, thereare a wide variety of models. For some examples, duringthe 3rd meeting of the Information Commissioners inCancun, February 2005, several Commissioners reportedon their institution.

See: http://www.icic-cancun.org.mx/index.php?lang=eng

10 For more information on IFAI’s decisions and a quantita-tive analysis of each commissioner’s decisions covering

90

2004, see El IFAI y la Calidad Jurídica de sus Decisiones,LIMAC, Mexico, 2005.

11 The “simple form” developed by IFAI requires requestorsto provide the minimum amount of information necessaryto enable an agency to conduct a search for responsivematerial and communicate with the requestor. Makingsuch a form available facilitates requests more easily thanrequiring requestors to compose their own request letters,as is the practice in the United States.

12 IFAI has entered into basic cooperation agreements withthe SFP, Commission on Human Rights, Federal ElectoralInstitute, Supreme Court of the Nation, NationalAutonomous University of Mexico, State Commission forAccess to Information in Sinaloa, the IberoamericanaUniversity, Agrarian Tribunal, the Federal Tribunal forArbitration, the Tribunal for Federal Judicial Elections, theNational Association of Universities and Institutions forSuperior Education in Mexican Communication andEnvironmental Education, Ecological Culture, the NGOPresencia Cuidadana, and the Center for EnvironmentalRights of Mexico, and others. These agreements are pub-lished on IFAI’s site at:http://www.ifai.org.mx/test/new_portal/transparencia.htm.

13 See Vinculación con Estados y Municipios athttp://www.ifai.org.mx/test/eym/edos.htm

14 Article 37 section 15 gives IFAI the authority to work withother agencies and local governments to promote theTransparency Law.

15 Some of the business groups that have been active at thestate level are part of the LIMAC network, suggesting thatnational alliances can, in fact, play an important role inpromoting local activities.

16 Sistema de Educación Remota del Instituto Federal deAcceso a la Información Pública.

17 See http://www.ifai.org.mx/e-fai/Demo/ to take thecourse.

18 For example, at IPAB [Instituto para la Protección del

91

Ahorro Bancario– Institute for the Protection of Savings inBanks], officials noted that many legal problems couldarise if they are forced to make certain decisions, names,or information public. They would prefer to release theinformation to the requestor and not release it to the gen-eral public. In particular, the argument emphasizes thatbanks that are in liquidation or failed banks must be morecareful with their information in order to avoid putting thecapital due to the beneficiaries at risk. IPAB cannot pub-lish, before the auction sale of real estate, what is goingto be auctioned because this leads to invasion of theestates and loss of money in the eviction process.

19 Some agency officials also express concern over the legalrequirement that individuals who are requesting informa-tion may remain anonymous. They believe that anonymi-ty is not good because “they are being asked to workunder poor conditions and without a clear purpose.” Thisprovision of the law however was put in place to protectcitizens from reprisals and sanctions based on theirrequests for information. Even within the agencies this is aminor concern and there is not too much justification forchange.

20 See Article 33 of the law.

21 Luna Pla, Issa. Mexico: the Rise of Social Participation

22 All IFAI demographic statistics should be taken as indica-tive and not definitive, as the request system allows foranonymity and people need not complete or give accu-rate information.

23 http://www.Internetworldstats.com/central.htm#mx

24 Evidence that current access issues may be decreasinguse of the law is seen in the geographic distribution ofrequests. Recent IFAI statistics show that 46.4% of requestscontinue to come from Mexico City, where Internetaccess is much higher than elsewhere in the country.Mexico City (and immediately surrounding areas)accounts for roughly 20% of the total population, butalmost half of the FOI requests.

25 http://www.e-comunidades.gob.mx/

92

26 Several groups have already brought landmark cases toIFAI, which have caught the public’s attention, haveadded to a sense that the Transparency Law is working.For example, in the case that has come to be known asthe PROVIDA case, the Transparency Law was used torequest financial information that led to the exposure ofinappropriate use of public funds by an HIV/AIDS organi-zation in collaboration with the head of the Congressionalbudget committee. And, in another case, after a requestto the Attorney General’s Office (AGO) for the transcriptof an investigation into Luis Echeverría (President ofMexico from 1970 to 1976) for crimes against humanitywas turned down, IFAI found that the transcript could notbe classified because it related to genocide. After theAGO released a transcript of the investigation in Februaryof 2005 under IFAI’s orders, a review noted that most ofthe transcript was redacted. IFAI then released an opin-ion saying that the released version was excessivelyredacted.

27 See Article 40.II of the Transparency Law.

28 REDES: Marcas con Estrategia. Percepciones respecto alIFAI y sobre la campaña de divulgación de la cultura detransparencia 2004. Presentation. August 2004. Slide 9.

29 See Article 37.XIV of the Transparency Law.

30 IFAI, using a standard form, rated the websites of all theagencies, based on their obligations for posted informa-tion under the law. See the previous Agency section,which outlines several of the agency concerns about IFAIevaluation process and the perceived agency legitimacyof the reports.

31 At the time of the first evaluation in December 2003, thelaw had only been in effect for about 18 months. Giventhe time required to establish each agency informationcommittee, compile the information, and get it on-line,low compliance might be expected. Five months later, inMay 2004, the first published evaluation came out, withan average score of 62.8%. February 2005 was the nextpublished report.

32 Another example that IFAI is gaining leverage with thepublic is agencies’ inclination to resolve appeals actions

93

before IFAI deliberations. Agency and IFAI officials bothindicated that entities often prefer to settle the appeal,once it is made, before IFAI deliberates and hands downa decision to avoid the publicity associated with theappeal.

33 To the extent that they do not already exist, IFAI shouldnegotiate agreements between itself and each statebody with the aims of (i) institutionalizing dialogue andcooperation to (ii) foster maximum transparency, consis-tency of interpretation and best practice under the law.Further, consideration should be given to with which othernon-governmental bodies within Mexico IFAI should signsimilar agreements.

34 There is some precedent for setting up annual meetingssuch as this. For example, in 2005, the InformationCommissioner of the United Kingdom signed an agree-ment with the Secretary of State for Constitutional Affairsand the (UK) Information Commissioner outlining applica-ble procedures in the event that complaints are made tothe IC about central government departments. See www.foi.gov.uk/memorandum.pdf

35 They agreed as follows:

Participation in the knowledge of public entities is a legalright of the information society. Without discrimination,any person must be allowed access to the documents ofpublic agencies. A transparent public administration,open to citizen participation in its decisions, is a prerequi-site of a modern democratic society.

The information Commissioners and Ombudsmen whosecure freedom of information in the home countries areobligated to preserve and respect these basic principles.

In order to foster a broader, worldwide public awarenessof freedom of information, to further analyze and defineits vital elements, and benefit from an exchange of expe-rience, the undersigned agree to a continuous coopera-tion in the International Conference of InformationCommissioners.See: http://www.icic-cancun.org.mx/doctos/signed_english.pdf.

36 An interesting study recently published by LIMAC and pre-

94

sented at National Transparency Week on June 27, 2005,catalogues 12 cases of national and personal impor-tance where an appeal was taken to IFAI. Publicationand dissemination of case studies such as this should becontinued. Ernesto Villanueva & Issa Luna Pla,Importancia Social del Derecho a Saber, LIMAC, Mexico2005.

37 Periodistas de Investigación’s website is: http://investiga-cion.org.mx/

IRE’s website is: http://www.ire.org/

38 IFAI. I Cuadernos de Transparencia: De los ángeles a losíndices. Mexico. Nov 2003. Page 6.

95

Appendix I:Requests bySubject

2003

96

2004

Source: www.ifai.gob.mx

97

Appendix II: IFAIPublications

I. VIDEO

Description

• Aimed at creating awareness about IFAI and topromote transparency and the use of Freedomof Information.

• So far seven video clips have been disseminat-ed. Although they all intended to present situa-tions where there is a lack of visibility or trans-parency, with time the context of the clips hasshifted. For instance, the first three clips alludedto situations of lack of visibility or transparencyand how IFAI contributes to unveiling informa-tion when it comes to governmental activities,by comparing this to every day life situations.

• The three most recent clips have a differentapproach. The setting presents a personrequesting information (e.g. Where do babiescome from? How can I find X address?) andsome of the obstacles they encounter (e.g.being sent to other people, being ignored, feel-ing powerless to inquire or obtain information).These are all obstacles that Mexican citizenshave encountered – and still encounter- whenthey seek information from government agen-

98

cies. The clip seeks to portray IFAI as a resourceto address these issues.

Strengths

• Analogies allow citizens to relate IFAI and FOI’srole back to situations of their daily lives.

Challenges

• The videos fail to explain IFAI procedure.

• Contact information is in small font and fade onand off from the screen.

• The videos are not useful for people who havevisual disabilities, because contact informationappears only visually.

• According to the REDES Study, respondentsconsidered that TV spots effectively capturedaudiences’ attention but fail to effectively deliv-er important information about IFAI and the FOIprocess.

II. AUDIO

• Radio is another outlet through which IFAI hasstarted to create awareness. The agency hastwo main strategies in place at the radio level.

• Audio Clips: Ten clips of approximately 5 sec-onds each have broadcasted to date.

99

• Caja de Cristal (The Cristal Box): This is a radioshow that is transmitted Wednesdays at 8:30 pmon AM radio and its purpose to train civil societyon the use of the right to freedom of informationand the right to the protection of personal data.Over 50 shows have been aired so far, and theyare hosted by members of IFAI, the obligatedagency and other agencies ad well as peoplefrom civil society to speak about the Law andfreedom of information.

III. WRITTEN MATERIAL

A. Cuadernos de Transparencia (Transparency Notebooks)

Description

• This publication was initiated in November of2003 and constituted IFAI’s first editorial effort.Cuadernos de Transparencia seek to “becomean instrument for knowledge, a vehicle to circu-late ideas and reference tool for everyone.”

• According to María Marván Laborde, IFAI’sPresident Commissioner at the time of the firstpublication, “these books are easy to read, pre-sented in a user friendly format, accessible andfree of charge. They are an initial proposal onhow to construct bridges between the new top-ics of modern democracy and Mexican society.”

• Two years later, IFAI has published 8 issues ofCuadernos de Transparencia, covering topicssuch as transparency, accountability and theright of privacy from various perspectives.

100

Strengths

• Cuadernos de Transparencia is slowly becom-ing a compilation of research on issues of trans-parency, accountability and right of privacy bysome of Mexico’s most knowledgeable expertsin these topics.

• The booklets provide information regarding theprinciples and theory underlying freedom ofinformation and justify the existence of proce-dures set forth by the Law of Transparency andof institutions such as IFAI.

Challenges

• The articles do not make direct reference to theimplementation of the law or IFAI activities,therefore would probably not be useful as train-ing materials.

B. Transparency, Access to information and Personal Data

Description

• This book is a compilation of the regulatoryframework of Freedom of Information ofMexico. The information is presented in severalformats through the booklet.

• The first section contains the text of the Law ofTransparency and regulatory decree.

• The second section describes how to makerequests before government agencies in a Q&Aformat.

101

• The third section presents the process, its termsand costs through drawings.

Strengths

• Explains the process in several formats allowingaudiences of all literacy and interest levels toobtain information about the process.

Challenges

• The first section seems lengthy and overwhelm-ing.

C. Mexico: Transparency and Access to Information

Description

• This booklet contains a summary of the mainaspects of the Transparency Law in six differentlanguages.

Strengths

• Underlying principles and values of the Law.

• Law’s content in terms of IFAI, access of infor-mation regulations and procedures, statisticalfacts and access to state information.

102

Challenges

• Perhaps it would useful to focus on languagesspoken within the Mexican territory as well.

D. Transparencia: Libros Autores, Ideas

Description

• This is a compilation of expert reflection on thetheme of transparency and the limits and chal-lenges associated with implementing a cultureof transparency. Most of the pieces were writtenby IFAI commissioners.

Strengths

• The establishment of an expert base thatacknowledges the benefits of transparencywhile acknowledging the difficulties of achiev-ing a culture of transparency.

Challenges

• The work is very academic and suitable mostlyto those interested in a theoretical, as opposedto a practical approach to implementing trans-parency.

103

E. “Prácticas” (Practical Guides)

Description

• Of all current publications, this is probably themost simple. Guías Prácticas is a collection ofsmall booklets that explain the basic elements ofthe Transparency Law, freedom of informationand access and modification to personal dataprocedures before agencies and IFAI.

Strengths

• The guide’s language is simple. Concepts areexplained in the form of questions and answers.Format is very dynamic and colorful, making thereading process a pleasant experience.

Challenges

• The need to keep it simple often hinders the pos-sibility of more in-depth analysis about the issuesand challenges that users may face during theprocess.

104

Appendix III: Guideto Terminology

1) Guidelines (Lineamientos). Agency issuedguidelines that are non-binding and that areintended to aid in the implementation of thelaw.

a) Disobeying a guideline is not a basis forsanction as is disobeying a provision ofthe law.

2) Regulations (Reglamento). Each branch of thegovernment and each constitutionally inde-pendent entity issued regulations under theTransparency Law that specified how the lawwould be implemented for that branch of gov-ernment.

a) They were published in the Diario Oficial.They are not debated by Congress orapproved by any other branch of gov-ernment, besides the one issuing theparticular regulation.

b) There is no mechanism for ensuring thatthe regulations are in line with the plainlanguage of the law, besides publicopinion.

3) Request for information (Solicitud de informa-cion).

105

a) A petition for public information that isfound in the documents that are gener-ated, obtained, acquired, altered orpreserved by the agencies and entitiesof the Federal Public Administration, andthe Other Parties Bound by The Law.

4) Appeal for review (Recurso de revision).

a) An appeal for review that a private per-son may make to the IFAI when they aredenied access to information, notifiedthat the information does not exist, or ifthe information provided is consideredincomplete or does not answer therequest.

b) An appeal for review that a private citi-zen may take to the IFAI if they aredenied access to their personal data, orit was delivered in an incomprehensibleform, or they were denied the opportuni-ty to modify the personal information.

5) Requestor A person who puts in a request forinformation or an appeal for review.

6) SISI (Sistema de Solicitudes de Información).Information request system.

a) An online request portal that can beused to send in requests for informationto the liaison units of each federalagency and appeals for review with IFAI.

b) http://www.sisi.org.mx/

7) “No records” response (inexistencia). Theagency response to a request for informationindicating that there are no records available toanswer that request.

106

8) Obligated agencies or agencies (sujetos obliga-dos). The agencies identified in the PublicAdministration Law, subject to IFAI’s jurisdictionunder the Transparency Law.

9) Liaison Unit (Unidad de Enlace). Individualresponsible for collecting and disseminatinginformation, processing requests, assisting indi-viduals in elaborating requests, and preparingand delivering the requested information andrelated notifications at each federal agency.

10) Information Committee (Comité deInformación). Responsible for coordinating allactions within the agency in relation to the lawand ensuring the efficiency of the requestprocess.

107

Appendix IV:Project Members

• Project Leader & Author

Professor Monroe E. Price is Director of theProject for Global Communication Studies andVisiting Professor at the Annenberg School forCommunication. He is the Joseph and SadieDanciger Professor of Law at the Benjamin N.Cardozo School of Law, Yeshiva University, ofwhich he was the dean from 1982-1991. He wasProfessor of Law at UCLA until 1982. ProfessorPrice currently serves as the director of theHoward M. Squadron Program in Law, Mediaand Society and is the founder and editor of theCommunications Law in Transition Newsletter.He was member of the School of Social Scienceat the Institute for Advanced Study, Princeton in2001 - 2002 and was a Communications Fellowat the John & Mary R. Markle Foundation from1996 to 1998. He was a senior fellow of theMedia Studies Center of the Freedom Forum inNew York City in 1998.

• Deputy Director & Author

Bethany Davis Noll, consultant for the project,has worked with Professor Monroe Price onnumerous projects at the Programme inComparative Media Law and Policy at Oxford,including a comparative survey and book ofmedia reform in democratizing countries, abook on minority language broadcasting andlegislation in OSCE states, a book on mediareform in Ukraine sponsored by USAID, and aconference on international media assistance

108

and its role in promoting democracy with theWorld Bank and USAID. She graduated fromStanford Law School in 2005.

• Report authors/researchers:

David L. Sobel, at the Electronic PrivacyInformation Center, has litigated numerouscases under the Freedom of Information Actseeking the disclosure of government docu-ments on privacy policy, including electronicsurveillance and encryption controls. His currentcases seek disclosure of information concerningthe USA PATRIOT Act, the Total InformationAwareness program and the privacy impact ofaviation security measures and other homelandsecurity initiatives. He served as co-counsel inthe challenge to government secrecy concern-ing post-September 11 detentions and partici-pated in the submission of a civil liberties amicusbrief in the first-ever proceeding of the ForeignIntelligence Surveillance Court of Review. Mr.Sobel has a longstanding interest in civil libertiesand information policy issues and has writtenand lectured on these issues frequently since1981. He was formerly counsel to the non-profitNational Security Archive, and his clients haveincluded Coretta Scott King, the Nation maga-zine and ABC News.

Benjamin Fernandez Bogado is a lawyer andjournalist. He is President of the Fundacion Libreand General Director of Radio Libre inParaguay. He has worked with UNDP on gover-nance issues since 2000 and has written severalbooks about access to information. He is theRector of the Universidad Americana inParaguay and has done a lot of work on howfreedom of information interacts with democra-tization. He was a draftee of the 1992Paraguayan Constitution. He studied atHarvard, as a Nieman Fellow, at University of

109

Minnesota, as a Fulbright Fellow, and SyracuseUniversity, as a Humphrey Fellow.

• TCC Group Consultants

(http://www.tccgrp.com/)

Shelly Kessler, Vice President. Since joining TCC,Shelly has had a major role in developing TCC’sinternational practice. She has been one of theleads on our work on long-range financing forthe Consultative Group on InternationalAgricultural Research (CGIAR) as well as partici-pating in the strategic marketing workshopsfunded by the Ford Foundation. Kessler has alsoled a strategic planning assignment for theMerck Foundation, and a review of one of theBristol-Myers Squibb Foundation’s flagship phil-anthropic projects. She has twenty years experi-ence in international development, non-profitmanagement, and consulting. Prior to joiningthe firm, Kessler spent five and a half years asDeputy Executive Director of the InternationalClinical Epidemiology Network (INCLEN, Inc.),an international non-profit organization workingwith medical schools in 24 countries.

Jared Raynor is a Consultant at TCC Group. Herecently joined the firm after working in a num-ber of international organizations. He worked forthe International Rescue Committee (IRC) inAzerbaijan, working with local communities andorganizations affected by conflict. In thiscapacity he worked on strategic planning forthe country office of IRC and worked toenhance organizational efficiency for IRC pro-grams, local NGOs and partner organizations.Raynor has also worked for the United Nations inthe NGO Section of the Department of PublicInformation, assisting with the development andimplementation of several major conferencesfor NGOs, working on general outreach to

110

NGOs and coordinating media outreach efforts.

Ana Ramos-Hernandez is a Consultant at TCCGroup. She received her law degree from theUniversity of Los Andes, in Bogotá, Colombia.Shortly after graduation, she was appointedcoordinator of the project Visible Candidates –Visible Congress, an organization dedicated tomonitoring legislative activity and the perform-ance of Colombian Congress, and to empower-ing citizens by disseminating accurate, com-plete and impartial information on Colombianlegislators. During this time, she not only per-formed the administrative functions inherent torunning an organization but also conductedquantitative and qualitative analysis conduciveto reports on legislative performance. Ramoshas extensive experience in surveying, data col-lection, and quantitative and qualitative analy-sis, possesses valuable computer skills and is flu-ent in both English and Spanish. Ramos graduat-ed from her Master’s program in May 2004 witha Certificate in Nonprofit Management and wasawarded the Fels Institute of GovernmentExcellence in Performance MeasurementAward for her work with the PhiladelphiaDepartment of Human Services.

• Project Coordinator

Susan Abbott is Sr. Research Coordinator at theProject for Global Communication Studies atthe Annenberg School of Communications.

• Board of Advisors

David Goldberg taught law at the School ofLaw, University of Glasgow from 1971-2000. Now,he directs deeJgee Research/Consultancy andis a Guest Lecturer for Glasgow CaledonianUniversity’s communications law course. Hefounded the Journal of Media Law and Practice

111

in 1979 (later, Tolley’s Communications Law)and initiated the teaching of communicationslaw and policy at Glasgow in 1983 at bothundergraduate and postgraduate levels. Since1984, he has (as Co-convener of the Campaignfor Freedom of Information in Scotland) cam-paigned for freedom of information in Scotlandas well as internationally. He is a UK media lawinformation provider to the Council of Europe’sAudiovisual Observatory. In 2002, he was aMember of the UK Foreign and CommonwealthOffice’s Free Expression Panel (under the aus-pices of the Human Rights Policy Unit) he is aResearch Fellow and Member of the AdvisoryCouncil of The Commonwealth Centre forElectronic Governance.

Luis Botello, Director, Latin American Programs,ICFJ. Responsible for the identification, imple-mentation and development of all ICFJ projectsfor Latin America and the Caribbean. Conductsa variety of training programs and conferences.Botello was formerly director of ICFJ’s web-based service, the International Journalist’sNetwork (IJNet), which tracks media develop-ments around the world. Also previously servedas morning newscast producer, host and televi-sion reporter for Televisora Nacional in Panama,where he covered assignments in Colombia,the United States and Europe. He is a member ofthe board of directors of the Knight Center forJournalism in the Americas at the University ofTexas at Austin and the Latin AmericanJournalism Center (CELAP) in Panama City,Panama. Recipient of a Fulbright Scholarship in1988 and a fellowship to Louisiana StateUniversity’s Manship School of MassCommunication in 1997. B.A., Journalism andMaster’s in Mass Communications, LouisianaState University,, Special Rapporteur forFreedom of Expression Inter American

112

Commission on Human Rights, Organization ofAmerican States.

Kate Doyle, a Senior Analyst of U.S. policy inLatin America, currently directs the MexicoProject at the National Security Archive, whichaims to obtain documents on U.S.-Mexican rela-tions. She edited two of the Archive’s collectionsof declassified records - Death Squads, GuerrillaWar, Covert Operations, and Genocide:Guatemala and the United States, 1954-1999and El Salvador: War, Peace and Human Rights,1980-1994 - and numerous Electronic BriefingBooks on Guatemala and Mexico for theArchive’s Web site. Since 1992, Doyle hasworked with Latin American human rightsorganizations and truth commissions - in Mexico,Guatemala, El Salvador and Honduras - toobtain the declassification of U.S. governmentarchives in support of their investigations. Doylealso works with citizens groups throughout theregion on their campaigns for governmenttransparency, accountability and freedom ofinformation, and has written about the right toinformation in Latin America and the UnitedStates. In 2002, Doyle was awarded theIberoamerican University’s annual “Right toInformation Prize” in Mexico.

Eduardo Bertoni, former Special Rapporteur forFreedom of Expression, Inter-AmericanCommission on Human Rights, Organization ofAmerican States.

• Special Advisors in Mexico.

Issa Luna Pla, LIMAC. LIMAC is a non-partisan,secular and non-profit civil society organizationthat promotes the individual’s right to informa-tion and especially to public information in theframework of a democratic state based on the

113

rule of law.

Dra. Patricia Galeana, LIMAC Advisor. Historianat the National Autonomous University ofMexico. Former General Director of the Historicand Diplomatic Archives at the Ministry ofForeign Affairs, of the General Archives of theNation and Councilor of the InternationalCouncil on Archives. Author and coauthor of 20books, she has coordinated more than 54 publi-cations in history, international relations andgender.

114