Local Transparency Still Opaque for Many Mexican Communities

In June 2002, Mexican President Vicente Fox Quesada responded positively to Mexican civil society and impressed the international community when he signed the nation’s first freedom of information act. Atypically crafted with input from non-politicians and approved unanimously by both chambers of Congress, the new transparency law is considered by many to be one of the most pivotal democratic reforms in the history of Mexico, a crucial step in combating the country’s pervasive corruption problem.

Less than three years old, the Federal Law for Transparency and Access to Public Government Information already has produced some encouraging success stories. At the same time, the new right to know remains elusive at the local level in townships like Catorce in the central state of San Luis Potosí. So now, a nonprofit coalition has designed a watchdog system called Citizens for Municipal Transparency (Cimtra) to oversee compliance by city hall.

Even in the absence of the Cimtra tool, some states have begun to report a decrease in corruption levels. Their citizens are requesting and receiving government information that would never have been released four years ago. But, in most municipalities, citizens still have no more access to public information then they did before the law was passed.

For implementation of transparency measures at the local level, state governments must adopt their own versions of the federal law. Even then, in the states that have enacted transparency laws only 25 of the 1,062 municipalities have applied open-records rules. That amounts to just about 1% of all Mexican townships. As a result, especially in rural and marginalized municipalities, Mexican citizens continue to be victims of the type of official corruption and graft that the laws were created to combat. The irony is not that some residents continue to be victims of corruption, but that they are denied access to public information, even when they live in a freedom-of-information state.

Corruption continues to plague Mexico, costing the country about $60 billion a year, according to the International Consulting Group. Last year, Mexico performed poorly in Transparency International’s Corruption Perception Index, which measures how business people and country analysts perceive the level of corruption in a given country. From a range of 10 (highly clean) to 0 (highly corrupt), Mexico scored 3.6 points, ranking 64th out of 146 countries. It received the same score as Thailand and Ghana.

In context, Finland ranked first with a score of 9.6, and Bangladesh and Haiti tied for last place with a score of 1.5 points. The United States earned 7.5 points, sharing 17th place with Ireland and Belgium.

According to Mexico’s Public Duty Ministry, or SFP1, an estimated 10% of spending on public contracts in Mexico is eaten up by graft.2 And recently, all three of the country’s major political parties have been fined for illegal campaign funding.

No one doubts that poor, rural communities make inviting targets for corruption precisely because of their lack of information about their rights. In many Mexican villages and towns, officials routinely deny access to the most basic public information. For example, although the transparency law in the state of San Luis Potosí specifically requires disclosure of the municipal employees directory, officials in the rural municipality of Catorce refuse to provide it to citizens. For more than a year, Catorce officials have gamely faced down muttered accusations that some people on the city payroll provide no verifiable service to the municipality.

A look at how the freedom of information act works–or fails to work–in Catorce and other small municipalities in the state of San Luis Potosí reveals some of the challenges that remain in making government transparent to the most vulnerable Mexican citizens.

When local transparency efforts fail in the state of San Luis Potosí , they generally fail for the following reasons:

• Many citizens do not know about the new law;
• Those who know about the new law do not fully understand how it works;
• Those who do understand how it works do not have the confidence or support to pursue release of public documents held by recalcitrant officials; and
• There are no effective mechanisms for ensuring that obstinate authorities respect the law.

 

Brief History of Transparency in Mexico

Theoretically, the concept of freedom of information in Mexico is not new. In 1977, Congress amended Article 6 of the Mexican Constitution to include these words: “The state will grant freedom of information.” However, no mechanisms were created to give citizens access to open records. The Mexican government, whose tradition of corruption and impunity is well documented and firmly entrenched in the culture of Mexican society, simply did not give information to the public. As a result, polls consistently showed that Mexican citizens remained highly distrustful of the government and rarely sought opportunities to intervene in the political system. Sporadic civil society efforts to fight secrecy, patronage, and corruption in government over the past two decades were decisively thwarted.

Then, in 2001, the Mexican government’s administrative supervision and audit department, Secodam3, began drafting a freedom of information act as part of an anticorruption initiative. But observers found it weak. Critics complained that the draft seemed more oriented toward protecting government secrecy than the public’s right to know. Human rights advocates, journalists, and scholars quickly mobilized and drafted a stronger proposal, which the group eventually presented to Congress. Informally known as Grupo Oaxaca, the coalition lobbied Congress for months to pass its bill. Before an increasingly interested national and international audience, the coalition members demanded more openness in Mexican government. After several months, Congress passed the landmark legislation. The language of the right-to-know law rested heavily on Secodam’s document, but it included powerful additions from the Grupo Oaxaca.

"The final product is very good law," says Kate Doyle, senior analyst and director of the Mexico Project of the nonprofit, Washington, DC-based National Security Archive. "(It is) well conceived, well articulated and unequivocal in its intent to guarantee the right of citizens to obtain information about their executive branch.4"

After the federal law was enacted on June 12, 2002, Mexican states virtually raced to ratify their transparency legislation.5 Theoretically favoring disclosure over secrecy, the new laws require government agencies to routinely publish basic information and also allow citizens to easily and quickly request unpublished public information. Citizens have the right to appeal denials of information and to sue the government if the appeals are denied.

A key element of the federal law is that some information is already assumed to be public, and should be made available without any request. For instance, budgets, staff directories, and standard public program information should be posted on government websites or presented in other ways.

A key component of the law is the formation of the Federal Institute for Information Access, or IFAI. With it, for the first time, Mexicans have an agency whose primary purpose is to ensure that the country’s 250 federal and autonomous branches respond appropriately to requests for public information. 6 According to the IFAI, about 80% of requests its website receives result in information releases.

Both state and federal transparency laws afford sanctions against civil servants who hide, alter, or destroy public information. The laws also call for the withholding of some information, most notably that which invades personal privacy or is otherwise classified or confidential. A government agency has 20 working days to provide requested documents or explain why it cannot do so. If the agency maintains that the documents requested are confidential, the commissioners of the IFAI have to make a decision on whether this classification is warranted. The federal law includes a groundbreaking clause that specifically prohibits the government from withholding information regarding human rights violations and crimes against humanity.

Still, the reform has its weaknesses. It does not do much to combat secrecy in the famously corrupt Mexican judiciary or Congress, and it does not require political parties to publish information about their funding sources.7 What’s more, implementation is far from satisfactory.

 

Graph: Mexican Municipalities with Registered Transparency Rules*
Mexican States With Active Transparency Laws	No. of Municipalities In State	No. 0f Municipalities with Registered Transparency Rules	Municipalities with Registered Transparency Rules
Sinaloa	18	9	Ahome, Cósala, Culiacán, El Rosario, Escuinapa, Guasave, Mazatlán, Mocorito, Sinaloa
Guanajuato	46	4	León, San Felipe, San Miguel de Allende, Victoria
Coahuila	38	3	Piedras Negras, Ramos Arizpe y Torreón
Estado de México	122	3	Naucalpan, Tlalnepantla y Metepec
Nuevo León	51	2	Monterrey y San Pedro Garza García
Jalisco	124	2	Guadalajara y Zapotlán el Grande
Querétaro	18	1	Querétaro
Colima	10	1	Colima
San Luis Potosí	58	0
Aguascalientes	11	0
Michoacán	113	0
Durango	39	0
Morelos	33	0
Zacatecas	57	0
Yucatán	106	0
Quintana Roo	8	0
Veracruz	210	0
TOTAL	1062	25
Percentage	43.7%	1.02%
Number of Municipalities in Mexico *(INAFED)	2,430
Source: International City and County Management Association, IFAI. *As of August 2004.

 

San Luis Potosí Shining Example

In March 2004, the state of San Luis Potosí published its transparency laws8 and three months later it launched the State Commission for the Guarantee of Access to Information, or CEGAI9. The commission’s primary purpose is to ensure compliance with the state transparency law. Comprising a voting president and two voting commissioners, the agency began functioning June 28, 2004 .

State transparency advocates hoped that the commission would signify a new era in government transparency in the state of 2.3 million people. Similar to the federal freedom of information act, San Luis Potosí ‘s law guarantees the right of citizens to obtain public information from state agencies that manage public resources, including the judiciary and legislative branches. It requires agencies to disclose data about their operations, budgets, activities, staff, and programs. It also grants citizens the right to quickly and easily request records that are not already open, and it theoretically ensures sanctions of officials who fail to provide public information or lose, destroy, alter, or hide public documents.

But right-to-know advocates in San Luis Potosí complain that, in practice, the state law falls far short of the federal law and the state commission has not been effective in furthering transparency. "Up to now, there has been not a single notable success in San Luis Potosí ," says Samuel Bonilla, state coordinator for Libertad de Informacion, A.C., or Limac . Funded in part by the Open Society Institute and the National Endowment for Democracy, Limac has been a frontrunner in promoting the individual’s right to public information. The nongovernmental organization (NGO) accomplishes its work through state chapters, advocating government compliance with open records laws and assisting individuals in accessing public information.10

According to Bonilla, who is a journalist by profession, even state agencies charged with informing the public have resisted opening their records. Last year, a Limac associate requested information from the state’s public relations office regarding that office’s media expenses. "The office sent him to their website," Bonilla recounted, "but it was a ploy because the information he wanted wasn’t on the website. We had to really pressure them before they finally sent him the specific information he asked for, which were copies of the media bills and invoices."

Transparency advocates have found a disheartening culture of resistance in San Luis Potosí among civil servants at both the state and municipal levels. "We need to change the cultural paradigms that make them think that the information they work with belongs to them and that citizens don’t have a right to it," says Bonilla. Asked about changes he has seen the law bring to the 58 municipal governments in San Luis Potosí , Bonilla replied: "There are none."

The Catorce municipality is a good example. With a population of 11,138 residents, the remote city hall governs 120 small villages and ranchitos scattered over 790 square miles of rugged mountains and high desert terrain. The residents are mostly farmers, farm workers, and goat herders.

The current Catorce municipal government took office in January 2003, three months before the state congress passed its freedom of information act. The new local government took charge of one of San Luis Potosí ‘s poorest, most marginalized municipalities. It promptly adopted a policy of refusing to provide even the most basic information about its operations. Even after the law passed, municipal officials continued to withhold information that the new law stipulates should be made public without requiring citizens to ask for it.

For instance, on March 24, 2004 , Gloria Hidalgo, program director for the Catorce-based nonprofit Auris Project, requested access to basic public information, including the municipal budget, the staff directory, and the structure of the municipal hierarchy. According to the new law, that information should be published. Eleven months after the original request, the municipal government still had not provided that information. When Hidalgo in February 2005 called Mayor Roman Castillo to ask again for the information, the mayor responded that he had placed the information on the Internet for a few months but had since removed it because it cost too much to maintain a website. A monthly check of the Internet performed by the Auris Project during 2004 did not sustain Castillo’s assertion. However, when Hidalgo pointed out that the information could still be provided in paper form, Castillo told her to put in another request, and hung up the phone.

The lack of available public information in Catorce has allowed a myriad of abusive or irregular activities. For example:

• Some employees of the local social services department have frequently charged poor residents fees (in one case, US$400) for services that should have been free. The employees then failed to provide the clients with the free services for which the clients paid. To this day, no investigation has been undertaken into the use of those funds.
• Residents complain that past municipal officials have applied for federal programs on behalf of the villagers and then failed to provide the program resources to residents. In one case, villagers recounted, a former city employee approached mothers of school children and described a development program that the official would pursue on behalf of the community. For that she required that the women sign a blank sheet of paper. Subsequent inquiries about that program garnered no response. It is unclear what program, if any, the official sought in the names of the women.
• Several residents of Estación Catorce reported that they paid a US$100 "cooperation" fee for a street paving public works program at the behest of municipal officials. At the same time, officials declined to show the budget for the program or its source of funding. Residents who have asked for budget information on public works programs have been shunned from municipal offices.
• After a state tourism employee related that she was "volunteering" and donating personal resources for a tourism department workshop in the village of Estación Catorce , the Auris Project asked to see the program’s budget. The employee declined to provide the information, then excluded Auris Project local volunteers from participating in a subsequent state-funded tourism workshop.
• Employees of the Federal Electricity Commission, or CFE, routinely failed to travel to Catorce villages on a monthly basis to record electricity usage of homes. As a result, residents often were charged late at higher rates for their usage. The electric company has declined to provide details of any investigation into the overcharges. It remains unclear if all overcharged residents have received refunds.
• A past municipal president solicited travel funds from local residents and Mexican citizens working in the United States for a trip to the United States for the purpose of purchasing an ambulance for Catorce villages. Both local residents and migrant workers recalled donating money for the trip and the ambulance. Villagers reported that they never received refunds or an explanation for why the ambulance was not purchased.

Even well-meaning local officials do not feel bound by the state right-to-know law. As one local official put it: "We have heard about the transparency law, but we don’t know what it means or how to apply it. To us, it’s just a word."

Municipalities such as Catorce are common in San Luis Potosí , advocates say. And the current structure of the state law and its mechanisms offer little incentive for officials to change their ways.

Between its inception in June 2004 and Feb. 15, 2005 , the state transparency commission CEGAI11 had heard 34 freedom-of-information disputes and 23 of those remained unresolved.

Oralia Guzman Mendoza, a journalist from San Luis Potosí city, eventually got from CEGAI what she had been unsuccessfully seeking for more than a year: an accounting of travel expenses of San Luis Potosí Gov. Marcelo de los Santos Fraga, including the cost of private plane rental. But, she recounted, it wasn’t easy. "CEGAI seems more interested in helping the functionaries than helping the people get access to information," she said. "There needs to be more training (of commissioners)."

Even where the commission had ruled in favor of citizens and instructed local agencies to hand over public information, some agencies simply ignored the mandate. Although the law theoretically calls for sanctions against officials who do not honor it, the commission does not have the power to enforce it.

Jose Eduardo Lomelí, a CEGAI commissioner, pointed out that the state transparency law provides for sanctions in accordance with the state public employee law, which calls for supervisors to punish wayward employees. This is a severely limiting stipulation because the chain of command includes no one to force a municipal president to turn over public documents.

Faced with a growing number of mutinies from defiant agencies, the commission in February forwarded one case to the state congress for resolution. The municipal government of Ébano had refused CEGAI’s instructions to turn over public documents to requestors. Advocates say that the state congress’ handling of the Ébano case will determine how officials in San Luis Potosí will respond to requests for public information in the future.

NGOs and the press will continue to play an important role in the development of transparency rules in Mexico by keeping the discussion on the national agenda and by continuing to apply pressure to officials, says Eduardo Flores-Trejo, of the national NGO Proyecto Atlatl.

Recognizing the importance of transparency at the municipal level, a group of Mexico-based NGOs12 designed a tool to evaluate compliance in Mexican townships. This civic tool, Citizens for Municipal Transparency, or Cimtra, helps community members monitor and grade municipal transparency, particularly in administrative processes and public finances. The Cimtra tool measures transparency in the local government through a 31-question survey that local citizens apply under the guidance of Cimtra organizers. Of the first 24 municipalities that underwent the evaluation, only six won passing marks. But when Cimtra organizers offer suggestions and other guidance, municipalities tend to show improvement on a second application of the questionnaire. Tentative plans are to bring the Cimtra tool to municipalities in San Luis Potosí .

It’s a slow process, say right-to-know advocates, but the notion of freedom of information in Mexico will not go away. What’s needed now in San Luis Potosí , says Bonilla, is that the government must encourage and support citizens who seek public information.

"People must know the law and understand it and they have to know that it works," Bonilla explains. "And they have to feel that they can count on the support and protection of the transparency commission."

 

Endnotes

1. Secretaria de la Funcion Publica, http://www.funcionpublica.gob.mx.
2. Reyes, Leonarda. " Mexico: Corruption Notebook," The Center for Public Integrity, http://www.public-i.org/ga/country.aspx?cc=mx&act=notebook, February 28, 2005.
3. http://www.secodam.gob.mx/index1.html.
4. Doyle, Kate. " Mexico’s New Freedom of Information Law," National Security Archive. http://www.gwu.edu/~nsarchiv?NSAEBB/NSAEBB68/index4.html.
5. As of end 2004, half of the 31 Mexican states had passed information laws and the other half had information laws pending.
6. For more information about the federal transparency law and IFAI, visit http://www.ifai.org.mx/.
7.  Doyle. ibid.
8. Ley de Transparencia Administrativa y Acceso a la Información Publica del Estado de San Luis Potosí .
9. Comisión Estatal de Garantía de Acceso a la Información-San Luis Potosí.
10. LIMAC was founded by members of Grupo Oaxaca. http://www.limac.org/.
11. Comisión Estatal de Garantía de Acceso a la Información-San Luis Potosí.
12. These NGOs include the Center for Municipal Services “Heriberto Jara” (CESEM), Alianza Civica, Locallis, Vertebra, and the International City/County Management Association (ICMA).