The IFAI Ten Years On: An Assessment ahead of a New Reform.
TYP: The IFAI celebrates its tenth anniversary this year and is currently going through a period of far-reaching reform. How would you assess the past decade, what would you highlight from each period and what has its impact been on the consolidation of democracy in Mexico?
PS: I would start with the latter point. I think it is important to realize and emphasize that the issue of transparency and the right of access to public information, in the first place, and then the issue of personal data, are issues that belong to the stage of consolidation and not to the process of democratic transition. In this sense, they are post-transition issues and I think this is important to note because the purpose of these agendas is to underpin the institutions and their democratic operation. That is one of the great virtues of this agenda.
My overall view is positive in that, after ten years, we have succeeded , in building a constitutional consensus around the transparency as a public policy, and human rights which we previously lacked; we have consolidated bodies that guarantee the right of access to public information at the federal level and at the level of the federal entities—with some degree of variation, but in a widespread manner across the country—and that alone is good news.
There have been key moments that have to do with the consolidation of the trend in the decisions made by the oversight bodies, namely the IFAI, towards a steady expansion of the transparency agenda and right of access to public information, and that first acquired concrete form in the 2007 constitutional reform, and now in a new constitutional reform that is currently in the process of legislative approval. I believe these two moments of constitutional reform are very good indicators of the direction in which the agenda has grown, how it has expanded, both with regard to the broadening of the possession of this right, and in terms of the strengthening of the institutional guarantees to protect this right. I think that from this perspective, over the decade a series of legislative and constitutional actions have been deployed and these have expanded and underpinned this rights agenda.
TYP: Turning now to the 2013 reform. Experts and activists take the view that the reform in general strengthens the IFAI, but that it is regressive in other areas. What do you see as the pros and contras of the reform? What does it lack or what has not been included?
PS: I think there are no perfect reforms, or definitive reforms in regard to different subjects. This is a reform that will strengthen, on the one hand, the legal status of both the federal and state institutes of transparency, and represents a breakthrough in two respects: firstly, it makes the IFAI a body that not only guarantees access to the federal government, but also one able to provide guaranteed access to information in the legislative and judicial branches. Secondly, it extends the range of the regulated entities to include political parties, unions and trusts. In this sense not only is the legal status of the Institute reinforced, but its powers are enlarged, which is a very positive step. I think this is clearly an agenda that favors expansion and support for this right, and that is something we should celebrate.
On the other hand, there are some issues that will be difficult to implement. Personally, I am not fully convinced by the proposed “nationalization” of the subject of transparency by allowing the IFAI jurisdiction over questions concerning state resources, which are currently in the hands of the state institutes for transparency. I agree that the state institutions should be able request such intervention by the IFAI, but I am not convinced that the IFAI should have the direct power to assume jurisdiction over these issues. I think here we are—in this respect, as in others—reinforcing a centralist tendency which is not ideal if we consider that our country is designed as a federation.
But beyond this, I believe that as a whole this is a reform that we should welcome, and one that is going to strengthen the transparency agenda and lay the foundation for a new generation of policies in this area.
TYP: As we know, transparency and national security are in tension. The most serious questions raised about the reform related to national security. In your opinion, what risks are involved in empowering the Presidential Legal Advisory Commission to challenge decisions made by the IFAI that may compromise national security?
PS: I would say two things. The first is the concept of national security, which is a very vague concept that requires a very precise legal definition so it does not become an instrument that promotes opacity. I think the big challenge, assuming the reform is adopted and this concept is incorporated into the corresponding article—because we must not forget that the concept of national security is already present in other constitutional provisions as a concept that places limitations, for example, on conducting popular consultations or referendums on certain subjects—will be to ascribe a legal definition to national security. The definition of what is meant by national security should be very precise, very restrictive, very limited and have a clearly-circumscribed use in secondary legislation. If there is no suitable legal definition it will remain a highly complex and litigable term that will end up being limited or defined in the courts. I think legislators have an enormous responsibility to avoid the concept of national security becoming subject to litigation, and the only way to do that is to produce a very precise and specific secondary legislation.
On the other hand, there is the possibility that the executive, in certain cases, may decide to contest the decisions of the IFAI. I think it would have been better for this power to be set aside, but nor do I view it with the same level of concern as some analysts. I think it is a mechanism that places a lot of burden on the government and that also, if it were used, it would give greater visibility to the issue and draw public attention to the case in question. In this sense, my impression is that it will be a mechanism that cannot be used in a discretional manner and will tend to be used only in exceptional cases. That is, in practice it will be a little-used tool, not one that is resorted to easily, because it can be burdensome for the government itself, as it would generate greater visibility for the issue and help to increase the debate around the case, rather than decrease it, as we may assume would be the intention of the Executive.
TYP: We might say that it would attract public attention unnecessarily, rather than hiding the case.
PS: Indeed, I think that if the executive considers that a particular issue should be exempt from the principle of maximum disclosure not because it is confidential, but because it is specifically classified as a national security interest, it would generate greater attention from the public. As a result, it will probably provoke a debate about the issue and also demand, in line with the Constitution, a ruling by the Supreme Court. In short, the usage of this resource will generate more attention from the public, and also there will always be a risk that the Supreme Court does not resolve in favor of the Executive.
TYP: Picking up on what you said just now about the capacity for expansion of the IFAI, above all in regard to the new ability of the Institute to intervene in rulings issued by state bodies, do you think the IFAI has the capacity to force state actors or the new regulated entities, like unions or political parties, to comply with its rulings?
PS: This is a very important issue, and its outcome will depend on the legislation established in this area. Currently, these new powers do not yet exist; what we have is a federal law and state laws on transparency. The reform heralds a strengthening in the legal status of the IFAI, a different mechanism for establishing a plenary session, and the creation of a general law on transparency that would imply a unified law throughout the country. If passed, the Constitution would also empower the IFAI to issue compulsory measures. If all of this is approved and an appropriate and well-designed secondary legislation is created -one that strengthens these aspects of the legal status of the IFAI, together with its punitive capabilities, it will have the power to do this and more. The problem, or rather the challenge, is to take what is incorporated into the Constitution by this reform and use it to create secondary legislation to enable the IFAI to design and implement the policies of transparency that the Constitution will now enable it to support.
However, all this remains to be seen. I think it will be crucial that the secondary legislation provides the IFAI with the instruments, mechanisms and legal capacity to enforce these
resolutions, otherwise we run the risk that interventions by the Institute will not be attended, with the result that it is weakened.
TYP: A similar problem arose when the powers of the IFAI were expanded to protect personal data held by private bodies. In this case, the IFAI confronted a situation where it was at a disadvantage, because multinational corporations and businesses have much greater resources to defend themselves against unfavorable rulings. One of the proposals was to create a new institute that dealt solely with the question of personal data. In this respect, what in your view would be the ideal institutional arrangement? What adjustments must be made to mitigate these asymmetries?
PS: I definitely think that the institutional arrangement we currently have is not optimal. That would be my first point. I think the way in which the issue of personal data was introduced has caused the IFAI more harm than good in terms of its own operation, and this has had an immediate and damaging effect insofar as the personal data agenda is treated as a secondary or minor issue when in fact it is a right of enormous relevance in today's world. I believe that the issue of personal data and privacy deserves greater attention from the public, but also greater guarantees on the part of the state. The structure we have today is not suitable because the IFAI already has a huge task as guarantor of transparency and access to information. Besides, the issue of personal data has not been legislated on or treated with the care it demands.
In this regard, I would definitely be in favor of reconsidering and rethinking the best way to provide guarantees on the subject of personal data. I’m not sure that creating a new dedicated agency for this matter is the best solution, because I fear that to do so would mean embarking upon a frantic creation of autonomous agencies, which is not what the Mexican state as a whole needs. However, it is necessary to propose an institutional structure that endows the protection of personal data with the importance, the care and security it deserves, not only in respect of private entities but also the personal data used by the state itself.
TYP: To return to the 2013 reform, one aspect of it involves changes to the organic structure of the IFAI in two respects: firstly an increase in the number of commissioners from five to seven; and secondly the creation of an Advisory Board. In your view, are these changes necessary?
PS: I believe that if the reform means the IFAI expands its powers and extends the number and nature of regulated entities—something we shouldn’t ignore, since not only will there be more entities but they will be of many different kinds—then it makes sense also to increase the number of commissioners, as undoubtedly there will be more work and this will require more staff to analyze cases.
On the other hand, I am less convinced by the need to create an Advisory Board because I think that an authority like the IFAI—or the IFE, for example—are authorities that already operate collegially and have a plenary council charged with the delicate matter of deliberating and taking decisions, making it unnecessary to create another collegial body. I understand this type of scheme in institutions like the National Human Rights Council (CNDH) because there is an individual head and such an advisory board becomes an body offering collegial support, but in the case of the IFAI collegiality is already established in the plenary council, meaning that the deliberation process, by the very nature of the body, is guaranteed.
That said, there are a couple of interesting issues in the make up of the plenary council. It seems justified and relevant that a number of the new commissioners should hold legal qualifications. I think it’s the right decision because this matter requires legal experts; that is, it is appropriate for trained attorneys to be included because it is increasingly a matter that, while remaining administrative in nature, is acquiring a quasi-judicial aspect, and in this sense legal training will be very important within the plenary council. At the same time it is a matter that transcends the law, since it requires a multidisciplinary perspective and requires the opinion of people from different backgrounds and not just attorneys, so it seems appropriate that there is a balance in the professions of the members of the plenary council.
What does not seem appropriate, on the other hand, and I believe this remains unchanged, is that the commissioners themselves who elect the chairperson. I think this practice has generated many problems in the IFAI and in other institutions of a similar nature and should be abandoned. The designation of the head should be made directly by the legislative bodies, in this case the Senate, meaning the internal dynamics of the plenary can be depoliticized.
TYP: On that point, do you agree that the commissioners should be replaced or are you in favor of renewal of their terms?
PS: I am familiar with the problems facing the current plenary council of the IFAI, and how complicated its performance has become today, as well as the political exhaustion it has suffered in recent months in the face of public opinion. While recognizing that this is an important and troubling situation, I think the constitutional autonomy of these bodies should avoid early replacement of the members of its governing bodies. If the Constitution sets out a formula for appointment, a term in office and a set of rules regarding the employment of the people that make up the body, then we should respect the Constitution. Otherwise, the notion of autonomy becomes a mere rhetorical formula because the leadership of these autonomous bodies continues to be determined politically.
I definitely think that the early replacement of members of the plenary councils of autonomous bodies is a bad idea; it was a bad idea when it was done at the IFE in 2007-2008, and I am convinced that it is not a good idea either in the case of the IFAI. We should let those who make up these bodies complete the term for which they were appointed, and ensure they are replaced by people with knowledge of the issue and a commitment to public service.
TYP: Finally, in the event the reform is approved, what will the major challenges facing the IFAI in the coming year be? What is the outlook for the Institute in the short and medium term?
PS: Assuming the reform is approved and is accompanied by sound secondary legislation—something that must be emphasized because if secondary legislation is not created and there is only a constitutional reform, the main challenge for the IFAI will be operating with a new constitutional basis and outdated legislation. This is already the case since the federal law was not updated after the last constitutional reform in this area. So if there is no secondary law it will be a major challenge for the IFAI to operate because it requires legal instruments in order for it to carry out its tasks.
So, assuming that the secondary legislation is also approved, I think the main challenge for the IFAI is to learn to exercise its powers against a set of regulated entities of a very diverse political, social and legal nature. I think the IFAI is going to have to learn to deal with very different actors from the entities it currently regulates, and will have to understanding the logic and dynamics of these different entities. This will be a huge challenge, since it is not easy to deal simultaneously with the legislature, with unions, with political parties, among many others. There will have to be a significant amount of learning about institutions.
Another challenge will undoubtedly be dealing with a new institutional relationship with the executive, on the basis of the new powers granted by the recent reform, especially with regard to cases involving national security.
The last big challenge is to really make sure that the agenda of the right to information, understood in a broad sense, is taken up by the public. The IFAI already has a history and legal faculties, but it has failed to really make them part of a citizen-based agenda. It is a great challenge for the IFAI to make the right to information part of the daily life of the Mexican people.
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