Academic journal article The George Washington International Law Review

Latin American State Secrecy and Mexico's Transparency Law

Academic journal article The George Washington International Law Review

Latin American State Secrecy and Mexico's Transparency Law

Article excerpt

I. INTRODUCTION

A fundamental building block of democratic societies is unhindered access to government-held information.1 Access to such information allows the public to critique government actions and make electoral and economic decisions accordingly, thereby underpinning the notion of a democratic government that derives its authority from the consent of the governed.2 The post-World War II era has seen an unprecedented explosion of democratic political regimes3 that has been accompanied by a parallel increase in national access-to-information laws in recent years.4

Such events have not passed Latin American countries by, either. In approximately the last five years, Latin America has seen an unprecedented academic and public interest in governmental transparency and accountability result in the consideration of a number of national measures aimed at increasing public and media access to governmental information.5 Yet despite the widespread public interest in reducing corruption and increasing political accountability, most Latin American states still lack access-to-information regimes that are comprehensive in law, much less in practice.6 Nevertheless, some Latin American legislatures have very recently begun to undertake legal reforms aimed at increasing public accountability. One such country is Mexico, which in 2002 passed the Federal Transparency and Access to Government Information Law (Transparency Law).7

Mexico's Transparency Law is notable in the Latin American context, both for its provisions and the processes surrounding its promulgation. As this Note discusses, Mexico's Congress approved the Transparency Law following successful negotiations that incorporated input from non-governmental organizations, academics, and members of the press, granting the process surrounding the Law's promulgation a degree of public legitimacy seldom seen in many Latin American states. The Transparency Law is broad in scope and prescribes detailed procedures for answering access-to-information requests, establishing one of the first unified, comprehensive legal frameworks for access to official information in Latin America. Although further guarantees could still be incorporated into the Mexican Law, it goes a long way towards achieving compliance with international government accountability norms.

This Note argues that Mexico's Transparency Law should serve, in many respects, as a model transparency law for other Latin American states attempting to open governmental operations up to greater public scrutiny. After providing relevant background information on access to information in Latin American countries and relevant international standards, in Part II this Note examines the history of the Mexican Transparency Law's passage and generally describes the Law's provisions. This Note surveys five innovative provisions-two structural and three procedural-which combine to make the Mexican Transparency Law unique and an example worth emulating. This Note also briefly discusses implementation to date. In Part III, this Note analyzes the potential role that the five safeguard provisions of the Law can play in increasing governmental accountability in other Latin American countries. Finally, because access-to-information laws are peculiar in that their true practical worth rests entirely on the disposition of the public to take advantage of them, this Note's Conclusion outlines the challenges to the creation of a mature access-to-information regime that remain once the legal framework-which alone is the subject of this Note-is put into place.

II. DISCUSSION

This Part of the Note begins with a contextual overview of the state of transparency in governmental operations and popular perceptions regarding corruption in Latin America. Next, it describes the existing international legal framework related to access to official information. The last portion of this Part is dedicated specifically to Mexico's Transparency Law, starting with a discussion of the process surrounding its construction and promulgation, proceeding next to an overview of its general provisions and the five specific safeguards that are the object of this Note, and concluding with a brief overview of the successes and failures of the Law's implementation during the short time since its promulgation. …

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