Public Security and transparency Is it possible?

1. Public Security and transparencyIs it possible? María Marván Laborde Washington DC August 7th 2009

2. Public Security* • Public security = citizens’ security • State must assume responsibility • Public policies: • Prevention • Prosecution • Justice Administration • Penal process • Sanctions and process to readapt to society *Estudio de Impacto de las solicitudes de acceso a la Información Pública en materia de Seguridad Pública y Seguridad Nacional

3. Is transparency against public security? • Tension between transparency and access to public information and the State capability to guarantee Public and national security • Alasdair Roberts hypothesis: In most cases, transparency increases security not the contrary • Good levels of transparency and access to public information strengthen the government abilities to provide security

4. Johannesburg Principles (1995) • Right to access information about public security must be recognized • Security agencies must have the right to classify information: as little as possible, always according to the law • Test of public interest • FOIA must have an independent authority to review all reserved information

5. IFAI: some norms to reserve information • Information is public by definition and reserved by exception • Review the information document by document • Logical analysis: “HARM TEST” • If the information MUST be reserved be sure you are protecting public interest NOT political interest • According to Freedom of Information Law

6. IFAI and public security • Analysis about request and appeals related with public or national security • What is people asking? • How is the Executive Branch answering? • How is the IFAI resolving? • What information they DO have and reserve? • What information they DO NOT have? • From June 2003 to August 2008

7. Institutions Studied • Five Institutions: • Policía Federal Preventiva • Procuraduría General de la República • Secretaría de Defensa Nacional • Secretaría de Seguridad Pública • Secretariado Ejecutivo del Sistema nacional de Seguridad Pública • 21,552 requests Total requests made • 764 appeals Near half a million • 3.54%

8. Total requests

9. Total Appeals AGENCY Year 28 66 112 148 315 95 PFP 93 PGR 301 SEDENA 166 SENSP 7 SSP 197

10. TOTAL APPEALS Number of appeals which “modify” (M), “revoke” (R), “confirms with direction to warrant access” (C) in Federal Public Security -23 June 2003 to 31 august 2008- 764 Appeals 720 Resolutions 357 Answer modified 384 Revoked 23 Confirmation with directions (44 appeals were resolved by consolidation of actions)

11. Main directions in Public Security resolutions • Information released • Public Version • Search • Conditioned access (personal data) • Non existent • Reclassified

12. Main directions of resolutions by general requested topic • Information Released • Public version • Search • Conditioned access (personal data) • Non existent • Reclassified

13. General requested topic by type of Government Agency • Administrative Issues • Statistics • Public servants (High hierarchy) • Special Intervention (Operativos específicos) • Public Figures (not necessarily public servants)

14. Public Policy and statistics • Lack of statistics in the sector • States do not send regular information to the Secretariado, there are no political or legal consequences • 111 appeals were requesting statistics • The resolution: Search again • Generic statistics: gender, place where the crime was committed, type of crime etc..

15. Can requests affect public policies? • The study suggest it is possible • PGR and SSP have changed some things in their web pages • SSP opened a space called “focus transparency” It has released information about the population in different jails, legal status of the inmates and other general statistics

16. Characteristics of request • Increasing complexity • Most of the request suppose several issues and/or several documents • Press fulfillment: people ask what is relevant in the news and vice versa • Accidents trigger requests: Helicopter crash of Martin Huerta (former secretary of SSP) and Mouriño´s airplane (former Secretary of Interior) • Calderon´s war on drugs become a central theme since 2007

17. Relevant Cases • Social Conflict In Oaxaca (2006) • SEDENA, PGR & SSP • Detention of “Zhenli Ye Gon” • PGR • Bullet proof vest: Buying process, contracts etc. • PGR, SSP& PFP • Past events, such as the Guerrilla in Chiapas (1994) • PFP and SEDENA

18. Relevant cases by agency Federal Police Most of the appeals are about police operations, accidents or flights against the Federal Police E.g. • The helicopter accident where Ramón Martín Huerta -Public Security Secretary- died • The confrontment between the people of San Slavador Atenco and federal police agents General Prosecutor or General Attorney (PGR) • Most of the resolutions are about the access to direct or public version of concluded criminal investigations (averiguaciones previas) • Other resolutions are about the extradition of drug dealers; AMLO’s desafuero process; test results of PGR’s employees; special attorney for social and political past movements

19. Relevant cases by agency Federal Defence and Military Agency (SEDENA) The IFAI ordered SEDENA to give access to information about the lawsuit against the German enterprise Heckler & Koch for the plagiarism of the FX-05 rifle Most of the appeals are about military operations and accidents against drug dealers Federal Security Agency (SSP) • One NGO guided inmates to make request via personal data to learn about their own process of parole (conditioned liberty) • The IFAI ordered SSP to give access to information about the correctional centre CERESO • As a result SSP modify their web page to include inmate information

20. Sources of conflict • Lack of previous policies to handle reserved information • There is no gradation for different types of secrets • No clearance of public servants to handle reserved information according to sensitivity of the information • Discretionally the Authority released pieces of information pretending to classify them afterwards

21. Conflict with PGR Before War on Drugs: • IFAI ordered public versions of CONCLUDED criminal investigations • Always protected personal data • Always protected investigations related • PGR complied with IFAI´s resolutions

22. Conflict with PGR

23. Resolutions Contested • Even though the FOIL is explicit about the definitivity of IFAI´s resolution PGR contested in front of an Administrative Federal Tribune • 13 different resolutions • Every single time the first instance rejected arguing lack of competence • Second instance 4 times solved against PGR • 9 cases pending to be solved • 2 solved by the higher authority in the Judicial System, PGR lost both of them

24. Legal Reform to the Penal Code • January 2009 • Legal reform to the Art. 16 Federal Penal Code • Criminal Investigations are sealed permanently. When the MP decide there are no grounds for Judicial Action, limited access to the resolution (never a public version of the whole file) • Constitutional Review is in the Supreme Court

25. Conclusions • Since 2003 FOIL is working in Mexico • People learn to ask • Public servants learn they have to answer • People learn to appeal when not satisfied • IFAI open a lot of information • Advances have a clear set back due to the War on drugs (wonderful excuse) • Main concern: Criminal investigation and lack of statistics