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