RECENT DEVELOPMENT OF TRANSPARENCY AND ACCESS TO INFORMATION AT THE FEDERAL LEVEL IN MEXICO

Issac Armando Arteaga Cano Department of Political Science McGill University, Montreal August 2007

A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master in Arts

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While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada ABSTRACT

Transparency and access to information have become important elements of the Mexican political transition. The goal of this study is to contribute to the debate on those fields by: first, providing a theoretical framework that helps to understand the notions of transparency and access to information and their linkage to a democratic regime; second, by offering an account of the institutions that preceded the enactment of this norm; and third, explaining the legislative work that led to the approval of the Transparency and Access to Governmental Information Federal Law (LFTAIPG) in Mexico in 2002. This thesis/paper argues that the LFTAIPG can be seen as the result of the liberalization of the Mexican regime, and as a product of the political transition by promoting accountability in the federal government.

RESUME

La transparence et l'acces a l'information sont devenus des elements importants de la transition politique mexicaine. L'objet de mon memoire est de contribuer a l'etude de ces sujets, premierement, en etablissant un cadre theorique qui nous permettra de comprendre les notions de transparence et d'acces a l'information, ainsi que leur relation avec la democratic, deuxiemement, en presentant les institutions qui ont precede l'adoption de ces normes et, troisiemement, en expliquant le travail legislatif qui a mene a l'adoption de la loi federate de transparence et d'acces a l'information gouvernementale du Mexique (LFTAIPG) en 2002. Mon memoire soutient que la LFTAIPG est le resultat de la liberalisation du regime mexicain et un produit de la transition politique qui rehausse la responsabilite politique du gouvernement federal.

u ACKNOWLEDGEMENTS

I would like to thank my parents, Haydee and Armando, and sister, Vania, for their support and encouragement during my stay in Montreal. This and all my achievements are for and because of them. I am also grateful to my friends in Montreal and Mexico for helping me to deal successfully with postgraduate studies In Montreal: to the Mexican Gang, Julian Durazo, Bethel Hernandez, and Monica Trevino, for their time and hours of chatting; to my new friends, Elizabeth Barona, Ivan Pinzon, and Mark Daku, for making life in Montreal easier; and the trio, Mila Francisco and Lucia Madariaga, for the mutual help in the "thesis" sessions on Tuesdays and Wednesdays. And in Mexico, first, to my close friends, almost my sisters, Atzimba Baltazar and Daniela Zepeda for always being there; and to Gerardo Maldonado and Gabriela Perez, for guiding me in winding paths of the graduate school. And to Erika Hernandez and Pilar Zazueta, for their friendship. I am in debt to the faculty of the Department of Political Science of McGill University, whose classes helped me to view Mexican Politics from a more objective perspective. Special mention is owed to Profs. Juliet Johnson and Filippo Sabetti: their insights were extremely useful for the development of this study. Last but not least, I will always be grateful to Prof. Philip Oxhorn not only for his patience in guiding the construction and development of this document, but also for sharing with me, as with many other students of Latin American, his encyclopedic knowledge about the region. Finally, the writing of this thesis was possible only due to a research assistantship of the Centre for Developing-Area Studies and his director, Prof. Oxhorn; and by the Secretaria de Education Publico, of Mexico, through the Programa de Becas Complementarias para Mexicanos que Realizardn Estudios de Posgrado en el Exterior.

iii TABLE OF CONTENTS

1. INTRODUCTION 1

2. THEORETICAL FRAMEWORK * 5 2.1. Accountability in historical perspective 6 2.2. Transparency and Access to Information: operational concepts and definitions 17 2.3. Transparency and Access to Information and its linkage to democracy 27 2.4. Final Remarks 33

3. ACCESS TO INFORMATION AND TRANSPARENCY IN MEXICO BEFORE 2001 35 3.1 The Mexican Political System: A General Overview 37 3.2 Recent Antecedents of Transparency and Access to Information in Mexico ..44 3.3 Transparency and Access to information in the Governmental Transition of 2000-2001 50 3.4 Final Considerations 55

4. BUILDING TRANSPARENCY AND ACCESS TO INFORMATION IN MEXICO 57 4.1 The PRD's Alternative: Transparency in the Federal Public Administration59 4.1.1 Objective and Main Arguments of the Proposal 60 4.1.2 Definitions of Transparency and Access to Information 61 4.1.3 Comprehensiveness: Structures Covered by the Bill 63 4.1.4 Contradictions in the Bill 64 4.2 Fox's Proposal: Formalizing Transparency and Access to Information 66 4.2.1 Objective and Tools of the Proposal 66 4.2.2 Definitions of Transparency and Access to Information 67 4.2.3 Comprehensiveness: Structures Covered by the Bill 70 4.2.4 Contradictions in the Bill 71 4.3 Building Bridges in the Opposition: PRI, PRD, PT and Convergencia's Proposal 72

iv 4.3.1 Objective and Tools of the Proposal 73 4.3.2 Definitions of Transparency and Access to Information 75 4.3.3 Comprehensiveness: Structures Covered by the Bill 76 4.3.4 Contradictions in the Bill 77 4.4 Generating Consensus in Congress? The Final Configuration of LFTAIPG..78 4.5 Final Remarks 89

5. CONCLUSIONS 90

6. BIBLIOGRAPHY 95 6.1 Articles and Books 95 6.2 Executive Branch Documents 108 6.3 Legislative Information 108 6.4 Information in the Official Diary of the Federation 110 6.5 Federal Laws Ill 6.6 Internet Documents Ill 6.7 Internet Sites 112

7. APPENDIX: CHRONOLOGY OF THE MEXICAN PRESIDENTS: 1934- 2006 113

v 1. INTRODUCTION As Francis Adams notes, "Governing elites are unlikely to advance the public interest or respect the rule of law unless they are held accountable for their actions".1 In this context, Mexico's authoritarian governments under the Institutional Revolutionary Party (PRI, Partido Revolucionario Institutional) developed formal mechanisms to promote "transparency" and "access to information" in the public sector, but the policies were ineffective and limited. The PRI regime used them as a mechanism to remain in power and to delay the transition. The authoritarian system provided incomplete social and economic indicators in very specific documents: the annual reports that the presidents of Mexico, governors and municipal presidents have to present to the legislative bodies, as well as the yearly activities reports that the secretaries of the executive branch have to elaborate. These reports constituted for decades the only information provided by the government, the only source of data about its functioning, and the only mechanism for ensuring, somehow or other, the accountability of public servants.2 In this context, the corporatism of the Mexican political system under the PRI eliminated any possibility of establishing effective "horizontal and vertical accountability systems".3 The absence of these mechanisms allowed the emergence and expansion of corporatism, clientelism and patronage in the public sector, that is to say, the extensive corruption that has characterized the Mexican government.4 For that reason, when the opposition political parties began to win political positions at the subnational level, they used accountability, transparency and access to information to differentiate themselves from the PRI-regime, which

1 Francis Adams, Deepening Democracy. Global Governance and Political Reform in Latin America, Westport, Praeger Publishers, 2003, p. 132. 2 David Corrochano, "Social Capital and Democracy in Mexico: The Social Limits of Political Change", in Social Forces 84(1), 2005, pp. 1-16 3 Cfr. Guillermo A. O'Donnell, Horizontal Accountability in New Democracies, in Journal of Democracy 9(3), 1998, pp. 112-113. 4 Stephen D. Morris, "Corruption and the Mexican Political Culture", in Journal of the Southwest 45(4), 2003, pp. 671-708.

1 also became an important source of credibility and legitimacy with the ultimate objective of retaining power vis-a-vis the PRI.5 During the presidential campaign of 2000, National Action Party's (PAN, Partido Action National) candidate, Vicente Fox, committed himself to promote transparency and access by a bill that would force public institutions to respond to requests for information from Mexican society. Transparency and access to information became part of the political discourse of Fox in the effort to emphasize the extensive corruption of the regime. In the long run, these elements helped him to gain sympathizers and to win the presidential race. Once in office, Fox's prepared and remitted to the Chamber of Deputies, in November of 2001, a legislative proposal on that issue,6 but also this became a topic that gained the attention of the political elite. Two more bills on transparency and access to information were submitted to the lower Chamber to contribute to the debate about the configuration of a law on transparency and access to information. On June of 2002, the government published the Transparency and Access to Governmental Information Federal Law (LFTAIPG, Ley Federal de Transparencia y Acceso a la Information Publica Gubernamental),7 a law that marked a watershed in the relationship between the government and the citizenry in Mexico, giving society the tools to promote the accountability of government officials:8 society will be able to request information about the functioning of the federal government and evaluate its performance. However, the analyses that have been developed in the subjects of transparency and access to information in Mexico at the federal level have concentrated only in how the LTAIPG was implemented, dismissing elements

5 See Luis Carlos Ugalde, Rendition de Cuentas y Democracia. El Caso de Mexico, Mexico, Institute Federal Electoral, 2002. 6 The bill was sent to the Federal Congress a year after Fox took office. 7 Approved by Chamber of Deputies in April 24, 2002, and by the Senate in April 30, 2002. The President published it in the Official Daily of the Federation (Diario Ofwial de la Federation) on June 11,2002. 8 Eduardo Guerrero Gutierrez and Leticia Ramirez de Alba, "La Transparencia en Mexico en el Ambito Subnacional: Una Evaluaci6n Comparada de Leyes Estatales", in Sergio L6pez Ayllon (coord.), Democracia, Transparencia y Constitution. Propuestas para un Debate Necesario, Mexico, Universidad Nacional Aut6noma de M6xico - Instituto Federal de Acceso a la Information, 2006, pp. 81-125.

2 such as the political and administrative reforms that antecede this law, as well as the way in which that norm is the by-product of three bills in Congress. That is to say, few studies have analyzed the immediate political, administrative and legislative origins of the proposal and how it was pieced together by the federal deputies. The aim of this paper is precisely to reconstruct the recent political and administrative history of the topics of accountability, transparency and access to information in Mexico; and to understand to what extent the proposals on those subjects submitted to the Chamber of Deputies constitute a response to the political context of the political transition of Mexico and to the history of corruption under the PRI. Moreover, it seeks to understand what these bills tell us about the interests, objectives, and principles of the promoters of those bills and how the LTAIPG reflects the positions and goals of the three proposals. The analysis of this topic requires a comprehensive analysis of accountability, transparency and access to information in Mexico on both theoretical and empirical grounds: first, by providing an adequate theoretical framework that links these three elements in an all-embracing logic argument; and second, by reconstructing the political and administrative reforms implemented by the federal government on those subjects under the PRI. This will help us to understand how the initiators of the bills conceived transparency and access to information and how they operationalized them, as well as how the Congress arrived at the final configuration of the LFTAIPG." It this sense, it is possible to hypothesize that the bills on transparency and access to information presented in the federal Congress respond to the democratization and liberalization processes experienced by Mexico at the end of the twentieth century, and the ineffectiveness of the reforms developed under the PRI to improve accountability, transparency and access to information in government. The elections of 2000 changed the balance of power in Mexican politics, and the enactment of a law on transparency and access to information was then seen by the proponents of those bills as the antidote to the evils of the post-revolutionary system, to the lack of effective checks and balances between

3 political institutions and to the expansion of extra-constitutional arrangements that concentrated powers in few hands.9 This thesis seeks to shed light on the positions of the political parties and the federal government about this law, and what the legislative bills indicate about the political moment when they were submitted to Congress, and help to understand the weaknesses and strengths of the transparency and access to information legal framework. This research paper is organized in four chapters. The first presents a discussion of the concept of accountability and explains some of the mechanisms that allow citizens to oversee government activities; it further discusses some definitions of "transparency" and "access to information" and how they function as part of a large accountability system, and describes the link between democracy and accountability. The second chapter deals with the general characteristics of the political and administrative organization of Mexico under the PRI; with the political and administrative reforms developed before the Fox administration in the accountability, transparency and access to information fields; and explains how the topic of transparency and access to information became an important issue during the transition period, when Fox defeated the PRI in the federal elections in July 2000 and during the first years of his administration. The third section analyzes four aspects the three bills (Barbosa, Fox, and opposition parties in Congress) on transparency and access to information presented between July and December 2001 in the Chamber of Deputies: their principal objectives and diagnoses about the Mexican political system and its bureaucratic structure; how they define transparency and access to information; how comprehensive are the bills, in terms of the institutions that will be subject of this law; and the principal contradictions in the bills that could undermine or limit transparency and access to governmental information in the public sector. The last section presents the results and conclusions of this thesis.

9 See, for example: Adolfo Aguilar Zinzer, "Mexico: The Presidential Problem", in Foreign Policy 69, 1988, pp. 40-60; Jorge Carpizo McGregor£/ Presidencialismo Mexicano, Mexico, Pornia, 1994.; and Lorenzo Meyer and Francisco Alba (coords.), Una Historia Contempordnea de Mexico. Transformacionesy Permanencias, Mexico, Oc6ano, 2003.

4 This paper will rely on primary and secondary sources of information. On the one hand, it will use government documents, speeches and discourses of political actors and authorities. On the other hand, will present the discussions generated by scholars on the subjects of transparency, access to information and accountability to frame and build a conceptual framework that helps us to understand the topic both in theoretical terms and in the Mexican case.10

2. THEORETICAL FRAMEWORK The consolidation of a democratic constitutional state requires a positive relationship between government and citizens. The government needs to respond effectively and efficiently to the legitimate demands that society formulates to the political structures. But being able to attend to those requirements presupposes the existence of formal mechanisms that allow citizens to supervise the government's decision-making processes and, in extreme situations, defend themselves from an arbitrary (illegitimate and/or illegal) action of those governmental authorities. In other words, the democratic system of rules implies to some extent the instrumentation of mechanisms which lead elected and non-elected individuals to respond to citizens -to be accountable- for their work and their omissions.11 This section has three objectives: first, to organize a conceptual framework about accountability, and concentrate on the analysis of the mechanisms that allow citizens to oversee government activities; second, to develop working definitions for the terms "transparency" and "access to information" and how they function as part of a large accountability system; and third, to describe the link between democracy and accountability. The ultimate aim of this chapter is to build a consistent theoretical framework that will help me to analyze how those concepts take form before, during and after the political transition of 2000 in Mexico. Moreover, it will help me to examine thoroughly the emergence of the

The analysis of scholars will help to understand some elements that probably are not so evident when analyzing the documents of the Federal Congress when discussing the proposals over transparency and access to information. 11 Here I am specifically referring to both elected officials and non-elected public servants/bureaucrats.

5 LFTAIPG, understanding the context in which it was promoted, and identifying its main aspects and components. In the first section of this chapter, I will present a conceptual and historical perspective of the term accountability. The objective of the section is not to study in depth the theoretical accounts about accountability that have been developed, but to present a general panorama of how this subject has been analyzed by some authors. The purpose here is to present and examine the elements that they have associated to this topic. In the second section I will explain the concepts of transparency and access to information. The discussion of accountability and its principal components will help me to understand how access to information and transparency could take form in concrete political and legal arrangements. The objective of the last section is to explain how transparency and access to information mechanisms are inscribed as parts of a major accountability system in a democratic government. The purpose is to explain how accountability analysis needs nowadays to transcend those minimalist conceptions of democracy that focus only on the representative (electoral) aspect of this type of regime, and consequently insist on working with a more comprehensive notion of democracy, emphasizing the liberal components that some authors associate with transparency and access to information.

2.1. Accountability in historical perspective As Paul Thomas argues, "Accountability is at the heart of governance within democratic societies. It is both a normative concept which provides a foundation principle for democratic political systems, and a complex, multifaceted and dynamic process taking place on a daily basis within governments".12 Most authors have linked the history of the notion of accountability to the necessity of controlling those individuals in charge of governmental responsibilities, to the mechanisms that should be enforced to prevent the abuses in the power delegated to the ruling group and structures. The concept has been clearly linked to the

12 Paul G. Thomas, "The Changing Nature of Accountability", in Guy B. Peters and Donald J. Savoie, Taking Stock. Assessing Public Sector Reforms, Montreal, McGill-Queen's University Press, 1998, pp. 348.

6 establishment of a government whose origin is not divine -or even based in a blood linage-, but as the product of the will of those individuals that settle in a particular territory and develop common mechanisms to resolve inner conflicts and to defend from external threats. This is the source of what has been known as the social contract,13 one where individuals delegate part of their liberty to construct a social order. Philosophers and political theorists, in that context, have been aware of the means used in the exercise of power: human beings are also guided by their passions. For that reason, it becomes indispensable to develop "checks and balances", procedures and rules, which help to supervise and restrict power in the hands of the "delegates", to promote accountability.14 In this sense, this concept is indeed one that emerges as part of the liberal thought of the 18th and 19th centuries, whose objective was establishing limited and more representative systems of government in Europe. John Locke, Montesquieu and Jeremy Bentham, for example, belong to this new liberal political current that defends a rule structure completely opposed to the European Absolutism of the 18th century.15 The putative fatherhood of the theory of "division of powers" -which has supported and configured the modern constitutional and liberal democracy- is generally attributed to Charles Louis de Secondat, Baron de la Brede et de Montesquieu. His ideas remain as a reaction toward the French Bourbon Absolutism16 and its excesses in the exercise of the political power. He did not suggest a complete fragmentation of that power and the creation of autonomous entities, but mechanisms of power-sharing within three basic structures of government: the Legislative, Executive and Judicial "branches".

13 David Gauthier, "The Social Contract as Ideology", in Philosophy and Public Affairs 6(2), 1977, pp. 130-164. 14 Andreas Schedler, iQue es la Rendition de Cuentas?, Mexico, Instituto Federal de Acceso a la Informaci6n, 2004 (No. 1 Serie Cuadernos de Transparencia), p. 9. 15 Peter Gay, "The Enlightenment in the History of Political Theory", in Political Science Quarterly 69(3), 1954, pp. 374-375. 16 The House of Bourbon was reigning France at the end of the 18th century. 17 Montesquieu never mentioned explicitly the term "Judicial Branch", since he refers to it as sort of second executive power in charge of resolving the problems that arise between individuals, and in charge of punishing crimes that derive from breaking the norms that emanate from the

7 Montesquieu insisted on the necessity that the "branches" of a liberal and democratic regime "blend and overlap so that they [not only] can check each other" , but to induce them to work together. The logic behind this governmental arrangement is the necessity of checking political power and avoiding its abuse by an individual or a group. A limited government with those characteristics was conceived by Montesquieu as the only mechanism that preserves liberty within a state. But in his view, liberty is also a restricted concept; defined as the individual's safety and only viable if it is exercised and respected (by other individuals and authorities) within the boundaries of the law.19 In this sense, those institutional arrangements need to be captured in a normative structure that sheds light and guides political, social and economic processes within the state: the Constitution. In opposition to the ancien regime -the absolutist monarchies of the 18th century in Europe-, this rule in a democracy must be obeyed because it emerges as the result of a contractual pact that assigns responsibilities to the elected (or non-elected) individuals. The "people", however, remained as the original depository of political power: "A people having sovereign power should do for itself all it can do well, and what it cannot do well, it must do through its ministers, Ministers do not belong to the people unless the people name them [and] to whom they should entrust some part of their authority".21

Those individuals who occupy positions in the branches of the government respond to a popular mandate through an electoral process. But the decisions taken by elected persons should be subjected to a constant examination not only by other branches of government, but by the citizens of the state: those persons "elected should be examined by judges and that every one should have a right to accuse him if he were unworthy of the office [... and when] the time of their

Legislature. Issac Arteaga, La Fiscalizacion Superior en Mexico: Una Aproximacion al Desarrollo Reciente del Control Externo Federal, Mexico, El Colegio de Mexico [Tesis de Licenciatura], 2003, p. 15-19. 18 Martin H. Redish and Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory", in Duke Law Journal 41(3) [Constitutional Perspectives], 1991, p. 461. 19 Montesquieu, The Spirit of Laws, Cambridge, Cambridge University Press, 1992 [Translated and Edited by Anne M. Cohler, Basia Carolyn miller and Harold Samuel Stone], Book XI, Chapters 1-5, p. 154-156. 2° David Gauthier, art. cit., pp. 130-131. 21 Ibid., Book II, Chapter 2, p. 11.

8 magistracy had expired, they were obliged to submit to another judgment in regard to their conduct".22 That is to say, individuals acting as the legal and legitimate representatives of "the people" are primarily and ultimately responsible -accountable, in modern terms- to the citizenry.24 Moreover, these sentences of Montesquieu's The Spirit of Laws provide two key elements to understand the role of public servants in a democratic government: first, it is clear that responsibility of elected authorities is not restricted only to the electoral game, since they are responsible at any moment during the period they are in a public office; and second, Montesquieu's argument assumes that an effective democracy needs an active citizenship aware of its rights and the limits of the political power. But Montesquieu was not the only author that developed a consistent argument about the necessity of controlling the actions of government. In this context, John Locke also developed a consistent idea of sharing functions within systems of rule. Locke presents, in opposition to Montesquieu, an anti-aristocratic vision of how the government operates -while producing "the definitive, modern brief for the right of resistance, popular sovereignty, and the accountability of government to the people". For Locke, the term accountability, somehow not implicitly present in his analysis, has two different connotations. On the one hand, he refers to the necessary fragmentation of governmental power to avoid the abuses that characterized the despotic monarchs in Europe. According to Robert Faulkner, Locke conceived a tripartite government of legislative, executive and judiciary branches. One of the most important aspects is the subordination of the three structures to an overarching law, a state's constitution: '"well-order'd commonwealths' have the legislative in 'divers Persons' dissolved and formed

22 Idem. 23 According to the law and because of the fairness of the electoral process by which he or she is designated to occupy a public assignment. 24 Montesquieu indirectly establishes that those individuals within a state that have the capacity to participate in the electoral process either voting or competing for a position in government are those that have the category of "citizen". See Montesquieu, op. cit., Book II, Chapter 2. 25 Deborah Baumgold, "Pacifying Politics: Resistance, Violence and Accountability in Seventeenth-Century Contract Theory", in Political Theory 21(1), 1993, p. 16.

9 anew by 'Elections' and thus subject to the laws they make". Once the legislature creates the law, it is obliged to respect and apply it. The executive branch, which Locke insinuates could be in the hands of a king, "is to be warred against if he disobeys the constitution".27 On the other hand, and related to those arguments, is the necessity of controlling political power and governmental structures. Locke sees three elements which will help in this objective: first, as was mentioned in the previous paragraph, the fragmentation of the governmental duties among different structures; second, the prevalence of the law -that constitutes the final product of the contractual pact between the individuals settled in a particular territory; and third, since rulers are the original depositories of the individuals' will, they are consequently responsible to the people for their acts. Moreover, Locke defended the right of individuals to overthrow a tyrannical or arbitrary power because the existence of a specific government is not the result of any power delegated by some divine authority, but by the will of individuals: "The Legislative being only a Fiduciary Power to act for certain ends, there remains still in the People a Supreame Power to remove or alter the Legislative, when they find the Legislative act contrary to the trust reposed in them". In this sense, for Locke the concept of government accountability is linked, on the one hand, to the responsiveness of the political class and structures to the people, which delegates its sovereign authority to rule over the territory within the law; and on the other hand, to the necessity of controlling the individuals that integrate the government. While most of Locke's and Montesquieu's arguments were based on the political and legal history of Great Britain, it is in the Constitution of the United States of 1787 that liberal thought determined most clearly the configuration of the regime. In this sense, the US Constitution transformed many of the notions

Robert Faulkner, "The First Liberal Democrat: Locke's Popular Government", The Review of Politics 63(1), 2001, p. 27. 21 Ibid., p. 34. 28 John Locke, The Second Treatise of Government, in Two Treatises of Government, edited by Peter Laslett, Cambridge, Cambridge University Press, 1960, p. 413, cit. in Deborah Baumgold, art. cit., p. 17. Emphasis in text.

10 developed in European liberal thought into a more comprehensive system. The importance of this document not only has derived from its innovations in governmental engineering, but also because the liberal arguments condensed in that document are still an undeniable referent of modern constitutionalism. The argument that underlies much of the norms that guide the functioning of the government of the United States is based on the idea that "all the elected magistrates" of the country cannot avoid the responsibility for the actions (or inactions) committed in office. Moreover, the government, as a whole structure of representation, is responsible in all of its parts and not only in its legislature.30 This constitutes the basic difference with the British model, in the sense that in the United States government there is a shared responsibility between structures which are not hierarchically interlinked. Alexander Hamilton, John Jay, and James Madison, the fathers of American constitutionalism, relied on the concept of "unenlightened self-interest" as the basic argumentative line in their accounts of governmental responsiveness. Madison, in The Federalist11, suggests that it is not possible (but dangerous) to rely on the good-will of all individuals in power positions, and for that reason it is de rigueur to establish limits on the self-interest of individuals. For him, "Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place [since] experience has taught mankind the necessity of auxiliary precautions".32 In this sense, they believe in the necessity of establishing limits and controls to all the structures of the government and to the way in which it operates. In the end, the ruling institutions are human creations designed to pursue the well-being of the society that those institutions actually represent, and not to serve the private interests of those in the

29 Cited in Martin H. Redish and Elizabeth J. Cisar, art. cit, p. 457. Moreover, Madison argued that specifically Montesquieu was "the oracle who is always consulted and cited on this subject", on the issue of separation of powers and the establishment of checks and balances between the branches of government. Cited in Ernest A. Young, "Taming the Most Dangerous Branch: The Scope and Accountability of Executive Power in the United States", in Paul Craig and Adam Tomkins (eds.), The Executive and Public Law. Power and Accountability in Comparative Perspective, Oxford, Oxford University Press, 2006, p. 162. 30 Patrick Riley, "Martin Diamond's View of 'The Federalist'", in Publius 8(3), 1978, p. 94. 31 Alexander Hamilton, James Madison and John Jay, The Federalist with Letters of "Brutus", Cambridge, United Kingdom, Cambridge University Press, 1961. 32 Ibid., Paper No. 51, p. 252.

11 government. Therefore, when establishing a government it is necessary to create and implement schemes that generate cooperation among the political actors involved in the decision-taking process. The Federalist sees "the people" as the original, prime and indisputable authority of the state. In this sense, all the elected authorities need to respond to the people for their actions while in office, either directly (through the electoral process) or indirectly (to one of the elected officials or branches of government).33 However, the fathers of the Constitution of the United States consider the electoral process as the main mechanism through which citizens can evaluate the performance and capacity of the officials in governmental offices, but without dismissing complementary systems of sanction such as impeachment. Moreover, the dissemination of "information" is, for The Federalist, a key element in the process of analyzing the operation of public institutions as in the construction and implementation of policies. Hamilton asks, in this sense, "What are the sources of information by which the people [...] must regulate their judgment of the conduct of their representatives in the State legislature?"34 His answer turns to the idea of an active citizenship willing to analyze the activities of those that belong to the government. However, and because of the inherent complexities of public information, it is necessary to trust in those who have the capacity to unravel it and process it to the common individuals. The question is how these "intelligent men", as Hamilton states, obtain the information that they will transmit. Hamilton answers: Evidently from the complexion of public measures, from the public prints, from correspondences with their representatives, and with other persons who reside at the place of their deliberations. This does [...] apply [...] to all the counties at any considerable distance from the seat of government.35

Ibid., Paper No. 69, pp.334-341, and Paper No. 75, pp. 364-368. Ibid., Paper No. 84, pp. 416-426. Idem.

12 For that reason, and to improve the performance of the public institutions, the government and its officials need to process and organize adequately the information that they have generated. Jay, in this sense, affirms that there needs to be a precise record of the affairs public officials have dealt with due to its constant rotation: "uniformity and order, as well as a constant succession of official information will be preserved". It implies, to some extent, that the government as a whole is obliged to explain to its citizens the arguments that lead it to take a specific decision, as well as the consequences of said decision. In other words, public institutions are ultimately responsible to those that elected them. But information constitutes a key element in the defense of the individual and in the promotion of checks and balances between the branches of government. On the one hand, common citizens could be defended from the arbitrary decisions of the state, those that violate the principles of the maximum law in the country -the federal constitution. On the other hand, dissemination of governmental information helps to activate the legal provisions that limit the exercise of power, that is, the controls among the branches of government and from, for example, subnational authorities.37 The authors reviewed in this section have emphasized the importance of controlling the government through different systems: the distribution of functions among different actors; the formalization of the rights and duties of both rulers and ruled in constitutional charts; clear and effective legal provisions that allow the former to defend themselves from the actions of the latter in the normative framework of the country; and the mechanisms that not only help to obtain information that describes the operation of the government and helps to understand its performance, but also systems that determine penalties and assign responsibilities for the deviations of individuals from the norms that guide their activities in government. From a historical view, the authors consulted believe in the necessity of controlling and limiting the power that "the people" delegate to political authorities -i.e., the government-, while at the same time establishing and empowering citizens with the tools to make individuals acting as public

36 Supra Note 31, Paper No. 64, pp. 312-317. 37 Ibid., Paper No. 28, pp.128-131.

13 servants and governmental institutions responsible for the power delegated to them. In other words, as many others beginning with the "ancient philosophers, political thinkers have worried about how to keep power under control, how to domesticate it, how to prevent its abuse, how to subject it to certain procedures and rules of conduct". These elements can be comprised in a term that implies the obligation of the political and public actors to provide citizens an accounting for their acts: accountability. The attempts to provide a clear definition rooted in the ancient philosophers, in the liberal thinkers and in recent political analysis have not reached a consensus. The differences can basically be found in the components associated to the term. Accountability, for some authors, not only means to provide accounts for their acts, but also implies the establishment of mechanisms that allow the citizenry to sanction the deviating conducts of public servants according to the law.40 The term "accountability" entails a broad number of associated features that somehow seems very difficult to capture in just one definition. The central concerns of accountability are generally those referring to external action, in the sense that an individual or a group gives accounts to another person or organization. The term implies a relationship that derives from rights of authority between individuals and/or groups, which consequently, involves social interactions or exchanges among persons or organizations. Accountability, in this context, necessarily could not be explained if there are not established linkages to other related subjects such as, for example, the notions of

Andreas Schedler, "Conceptualizing Accountability", in Larry Diamond, Marc F. Plattner and Andreas Schedler (eds.), The Self-Restraining State: Power and Accountability in New Democracies, Boulder, Colorado, Lynne Rienner, 1999, p. 13. 39 Mauricio Merino, "Introducci6n", in Mauricio Merino (coord.), Transparencia: Libros, Autores e Ideas, Mexico, Instituto Federal de Acceso a la Informacidn-Centro de Investigaci6n y Docencia Econ6micas, 2005, p. 12. It is beyond the scope of this text to present the whole discussions that have generated around the concept, because as Matthew Flinder says, the "concept of accountability is complex and multifaceted", whose creation determines a set of relationships that "seeks to satisfy a range of aims". Matthew Flinder, The Politics of Accountability in the Modern State, Burlington, United Kingdom, Ashgate Publishing Company, 2001, p. 9. 40 See Andreas Schedler, "Conceptualizing Accountability", art. cit, and Mauricio Merino, op. cit.

14 control, responsibility, responsiveness and democracy. On the one hand, accountability entails the capacity of the citizenry to control and make responsible the officials for their actions while in office. On the other hand, the regime where public debate is allowed and promoted, where -in principle- citizens have both the faculty and responsibility to supervise the functioning of the government structures, which promotes and establishes linkages of representation between citizens and public servants, and determines mechanisms of sanction to the latter when their behavior deviates from the norms, is precisely a democratic one.42 In this context, it is possible to see that the concept of accountability can extend "in a number of directions well beyond its core sense of being called to account for one's actions".43 Moreover, what does "bringing to account" mean? Which are the mechanisms that can be used to enforce accountability? In terms of procedures, can accountability be conceptualized in the same sense for the bureaucracy as for the political structure of representation? These are some questions that surround the discussions about the term and the elements associated to it, and make it difficult to reach a consensual notion that covers all the aspects scholars comment.44 However, a procedural definition of accountability is needed in this study to help us in framing the discussions about "transparency" and "access to information" as part of a wider and broader system of governmental responsibility, an inclusive notion that emphasizes the responsibility of public servants toward their actions in office, the mechanisms that can be used by the citizenry to sanction officials, and the incompatibility of accountability and secrecy. The definition of accountability provided by Paul G. Thomas is probably the one that can help in our discussion. His proposition recognizes the different sources of authority, and opens the door to alternative mechanisms to call individuals to give account for their actions. For Thomas, accountability can be

41 Richard Mulgan, "Accountability: An Ever Expanding Concept?", in Public Administration 78(3), 2000, pp. 555-573. 42 Bernard Manin, Adam Przeworski and Susan C. Stokes, "Introduction", in Adam Przeworski, Susan C. Stokes, Bernard Manin (eds.), Democracy, Accountability, and Representation, New York, Cambridge University Press, 1999, pp. 1-26. 43 Richard Mulgan, art. cit, p. 570. 44 See the discussions developed in Mauricio Merino, op. cit.; Richard Mulgan, art. cit.

15 seen as "an obligation to explain and to justify how one discharges responsibilities, even though the origins of which may be political, constitutional, statutory, hierarchical and contractual"45; a term which implies enacting procedures to prevent abuse of power and to remove unsatisfactory leaders, but also refers to the citizen's right to supervise how public policies are designed, implemented and evaluated. In other words, "accountability" describes a power relationship between the holders of power and the ones that are affected by the actions taken by the former.46 Nevertheless, it is possible to see accountability as the by-product of what Andreas Schedler47 has called the "two dimensions" of accountability: "on the one hand, the obligation of public servants and politicians to inform about and justify its decisions in public". This element refers the "answerability" component, that is to say, the very first notion to which the first concept is related, since it implies the responsiveness of the authorities toward citizens for their activities while holding public office. But the latter notion is incomplete itself if not related to the second element of the equation. Accountability also presupposes the establishment of a set of norms that "oblige"48 public (elected and non- elected) officials to respond for their actions or inactions during their term in public charges; and as a result, citizens, as the principal, have the capacity to punish the "improper behavior" of individuals in governmental offices. This can be summarized as the "enforcement" component. In sum, accountability and its two elements -answerability and enforcement- can be seen as elements that ultimately guide all the arguments about transparency and access to information in the governmental structures. In the end, and as I will explain in the following pages, the latter aspects seek to allow the participation of citizenship in the public policy decision-making, and contribute to building and/or

45 Paul G. Thomas, art. cit, p. 352. 46 Anne Marie Gotees and Rob Jenkins, "Accountability", in Adam Kuper and Jessica Kuper (eds.), The Social Science Encyclopedia, New York, Routledge, 2004, Vol. l,pp. 1-2. 47 Andreas Schedler, iQue es la Rendicion de Cuentas?, op. cit., p. 12; and Andreas Schedler, "Conceptualizing Accountability", art. cit., pp. 14-17. 48 The Spanish term used by Schedler is coaccion, which in English can be translated as "coercion". Nevertheless, the concept that in my opinion fits conceptually in the arguments could be "oblige", since public authorities are forced by laws in a democratic system of government to respond for what they did or not while they occupy a public office.

16 strengthening trust in the governmental structures, as well as "raising the quality of democracy and strengthening civic capacity. Such efforts help strengthen representative democracy in which legislative assemblies play a role".49

2.2. Transparency and Access to Information: operational concepts and definitions Transparency and access to information can be analyzed as topics that belong to the overarching subject of accountability and the control of the power of political structures. They constitute two of the pillars of a broader accountability system in a state.50 Transparency can be encapsulated as one of the many elements that can be used to promote the accountability of the public sector. Transparency and accountability are elements that can reinforce each other, but they are not synonymous: the government has to give account for their actions and be transparent to allow citizens to understand and criticize how the government functions. As Eduardo Guerrero comments, "With the implementation of accountability mechanisms we assure that the public authorities take responsibility for their actions. With the implementation of transparency systems citizens demand from their authorities to act according to the principles and rules accepted by all. [...] With accountability, the agent can justify its acts before its principal; and with transparency, the principal can ascertain if the agent is lying".51

United Nations, "Concept 4: Access to Information, Transparency and Accountability", New York, United Nations Development Program-Regional Bureau of Arab States, 2001, p. 6. This document constitutes one of the "meeting documents" used to develop the project of Public Sector Transparency and Accountability in Selected Arab Countries: Policies and Practices, which was published by the United Nations in May of 2004 under the same title. 50 Alfonso Hernandez Valdez, "Pr61ogo", in Mauricio Merino (coord.), op. cit., p. 8. 51 Eduardo Guerrero, "Libros, Autores e Ideas para Abrir una Discusi6n", in Mauricio Merino (coord.), op. cit., p. 34. "Con la rendici6n de cuentas nos aseguramos que las autoridades se responsabilicen ante alguien de sus actos. Con la transparencia exigimos a los funcionarios que actuen segun principios admitidos por todos [...]. Con la rendici6n de cuentas el agente se justifica ante su principal, y con la transparencia el principal puede averiguar si su agente le esta mintiendo".

17 But what exactly do we mean by transparency? There is no a univocal answer. Precisely, the problem of the concept of transparency, according to Juan Pablo Guerrero, is its level of abstraction.52 It is an "overloaded" concept in sociological, legal, moral, organizational and political terms that implies "great assumptions".53 As Alfonso Hernandez notes, "it acquires different meanings upon the field where it is discussed",54 a concept that has recently arrived to the "democratic reflection and practice".55 There is no consensus, as happens with the concept of accountability, for the notion of "transparency". Merino, for example, refers to transparency as "the construction of checks and balances systems that guarantee that the government accounts for its acts and decisions".56 Aguilar sees it as "a practice or an instrument used by organizations to publish or make public certain kinds of information, or to open to the public some of the procedures of the decision- taking process".57 Burkart Holzner and Leslie Holzner argue that transparency "means the open flow of information [...,] is not a synonymous with knowledge, but both intersect. Knowledge is validated information that can lead to action. Transparency depends upon access to information held by authorities who are presumed to tell the truth -although, of course, sometimes this presumption is wrong". In other words, "it is the social value of open, public and/or individual

Juan Pablo Guerrero, "Transparencia: de la Abstraccidn a la Operaci6n de un Concepto", in Mauricio Merino (coord.), op. cit., p. 46. 53 David Arellano, "La Transparencia desde la Teoria de las Organizaciones", in Mauricio Merino (coord.), op. cit., p. 54-55. 54 Alfonso Hernadez, art. cit., p. 9. 55 Jose" Antonio Aguilar Rivera, Transparencia y Democracia: Cloves para un Concierto, Institute Federal de Acceso a la Informaci6n, 2006 (No. 10, Serie Cuadernos de Transparencia), p. 10. 56 Mauricio Merino, art. cit., p. 12. 57 Jose" Antonio Aguilar Rivera, op. cit., p. 11. Aguilar Rivera contends that the government has the right to reserve some information for different purposes. As I will explain in the next pages, the notions of "habeas data", "public interest" and "social damage", need to be considered while discussing which type of information is disclosed and what are their implications for specific individuals (if they can be harmed if particular information is released) or for the stability and viability of political institutions. Moreover, it is possible to question which type of information can be defined either as public or private and which are the elements that determine this categorization. 58 Burkart Holzner and Leslie Holzner, Transparency in Global Change. The Vanguard of the Open Society, Pittsburgh, University of Pittsburgh Press, 2006, p.12.

18 access to information held and disclosed by centers of authority". These definitions, however, are not mutually exclusive. On the contrary, they present different edges of the same topic: transparency makes possible an effective system of checks and balances between structures of government; in assigning responsibility for the actions and inactions of government, and allowing citizens to participate in the definition of policies by evaluating their implementation. Moreover, transparency implies the diffusion of information and the generation of knowledge, indispensable elements for enhancing accountability and promoting transparency. The type of organizations that disclose their information and make it available, as well as those to which it is aimed, constitute, as we can see from the definitions presented above, the controversial aspects in delineating the notion of transparency. Those references emphasize particular elements: firstly, transparency is not exclusive of public organizations, but can indeed apply to private structures; secondly, it can be seen as a provision that contains the ambitions of power-depositaries (private and public agents) toward the principal, and help to assign responsibility for the actions and or omissions while individuals occupy an office60; thirdly, it presupposes the presence of a normative framework that allows individuals to access the records of the organization as a right in itself; and fourth, it requires a set of mechanisms that allows the constant flow of information from organizations to individuals. Transparency emerges -to some extent- as a precondition of accountability. To supervise the governmental activities, individuals need first to know what the government is and is not doing. Based on the definition of Stirton and Lodge61, this paper sees transparency both as a practice and consequence. It is a practice by which citizens are able to exert influence and control over the process by which public authorities (elected and non-elected) develop the normative framework

59 Ibid., p. 13. 60 John Ferejohn, "Accountability and Authority: Toward a Theory of Political Accountability", in Adam Przeworski, Susan C. Stokes and Bernard Manin (eds.), Democracy, Accountability and Representation, New York, Cambridge University Press, pp. 131-136. 61 Cfh Lindsay Stirton and Martin Lodge, "Transparency Mechanisms: Building Publicness into Public Services", in Journal of Law and Society 28(24), 2001, pp. 476.

19 state and its implementation -that is to say, the way in which public services are delivered by governmental structures. But transparency is also constructed upon the views, perceptions, and/or preferences of the citizens about how laws and public services are designed (decision-taking process) and implemented; and as a desirable result of the governmental development in an effective constitutional and democratic regime that enforces the rule of law. Transparency, in this sense, is not only justified on moral but on instrumental grounds.62 On the one hand, morally it implies the necessity of making the government structures more predictable and to involve citizens in the configuration of public decisions, since they affect individuals' present and future lives. On the other hand, instrumentally it is needed as a method to control individuals and organizations by making public their actions and to prevent public officials from abusing the power delegated to them. Transparency means that individuals can see inside of the "black box of government". This constitutes only the reflexive component of both accountability and transparency. Citizens are called to a more participatory role in the supervision of government and in developing transparency in public offices. Transparency consists in a permanent process of communication between individuals and government, where the latter informs the former about its use of political power. Transparency in government, in the participatory sense, can also help to deepen democracy, since only in this type of government is it possible to call the elite to give accounts. Transparency, in the end, emerges again as a precondition for accountability.63 But its development as an effective system of accountability depends on a society ready to exercise its rights and duties, but also on those rights and duties being able to be exercised and respected. In other words, the type and characteristics of transparency are determined by the rule of law and the degree of liberalization of the regime. Transparency, as well, has two core elements: first, the notion of publicity and/or public exposure of the politics and the decisions of the government; and

62 Idem. 63 Deidre Curtin, "Transparency and Political Participation in EU Governance: A Role for Civil Society?", in Cultural Values, 3(4), 1999 pp. 445-471.

20 second, the establishment of a set of rules that allow not only a "passive" and "active" exchange of information between those that have it, the public officials (elected and non-elected) and the citizenship; passive, in the sense that the norms oblige to the governmental structures to open its archives to the public scrutiny. The active exchange means that those rules per se do not guarantee that the public structures will release all the information they have; for that reason, democracy requires lively and dynamic citizens interested in the government's functioning.64 In sum, in this paper transparency is understood "as the legal, political and institutional structures that make information about the internal characteristics of a government and society available to actors both inside and outside of the domestic political system". 5 Transparency, in this sense, is a characteristic, a quality of the political system; but it is also a mechanism through which information is spread. The movements toward the improvement of governmental transparency also imply changes in the relationship between the public apparatus and society, which promote mechanisms to control public servants by inhibiting illegal conducts. But transparency cannot be exercised in a vacuum; it requires a set of norms that regulate the mechanisms by which individuals (or groups) can access governmental information, establishing, at the same time, sanctions to those public servants that would deny it. In this sense, the cornerstone of transparency is information. For that reason, the notion of "access to information" is crucial while evaluating the degree of transparency of a government. Some authors agree that access to governmental information was first developed by Jeremy Bentham.66 For him, "publicity" and "openness" should be the main characteristics of the work of public institutions: "The best project prepared in darkness, would excite more alarm than the worst, undertaken under the auspices of publicity. But in an open and free policy, what confidence and

64 Idem. 65 Bernard I. Find and Kristin M. Lord, "The Surprising Logic of Transparency", in International Studies Quarterly 43(2), 1999, p.316. 66 Jose" Antonio Aguilar Rivera, op. cit.; Lindsay Stirton and Martin Lodge, art. cit.

21 security -I do not say for the people, but for the governors themselves". In this sense, transparency, by means of access to information, generates trust within citizens and allows them to control the behavior of the governmental structures. As with the notions of accountability and transparency, the phrase "access to information" presents itself as a "multilayered" principle.68 How can access to information be conceptualized? Carpizo and Villanueva argue that "access to information" has been more clearly conceptualized as a right in opposition to the notion of transparency.69 The concept of "access to information" is linked to the liberal notion of the inherent publicity of the information generated by governmental structures. Transparency is a condition -a characteristic- that results from the openness shown by public institutions in allowing the citizenry to know the governmental work. But transparency relies on the information released by those public structures, and the access to it is only possible if there is a commitment of the rulers in that sense. In a liberal democracy, citizens are the original depositories of the state's sovereignty. Information is, in this context, an inherent right of individuals since they are allowed to know by it how power is exercised by authorities. But what exactly does this concept refer to? The Universal Declaration of Human Rights (UDHR), the starting point of most of the discussions on the notion of access to information, draws a clear link between the elements developed in the previous paragraph. The UDHR contains the very first and the broadest definition of access to information. Its Article 19 establishes that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of borders".70 The article itself has

67 Jeremy Bentham, Political Tactics, in Michael James, Cyprian Blamires and Catherine Pease- Watkin, The Collected Works of Jeremy Bentham, Oxford, Clarendon Press, 1999, p. 31. 68 Herke Kranenborg and Wim Voermans, Access to Information in the European Union. A Comparative Analysis of EC and Member State Legislation, Groningen (The Netherlands), Europa Law Publishing, 2005, p. 10. 69 Jorge Carpizo and Ernesto Villanueva, "El Derecho a la Informaci6n. Propuestas de Algunos elementos para su Regulaci6n en Mexico", in Diego Valad6s and Rodrigo Gutierrez Rivas, Derechos Humanos. Memoria del IV Congreso Nacional de Derecho Constitucional HI, Mexico, Universidad Nacional Aut6noma de Mexico, 2001, p. 71-73.

22 circumscribed the field of research of what has been called the "Information Law" 71 subdiscipline. The right to information, in this context, is based on the free circulation of information, founded also in the capacity that all individuals have to produce, express, obtain-receive and transmit information. Under the democratic and liberal principles, governments play a crucial role, since they not only have to guarantee the free circulation of information, but also promote it -which also obliges them to participate in that process by releasing the information that they generate and sanctioning those who violate this principle. The right of access to information has three components: first, it comprises the modern and liberal formula of freedom of expression; second, it is seen as the right (in the sense of obligation) that citizens have to be informed and to access the information they consider relevant for their interests; and third, it embodies the necessity of sanction when information is denied arbitrarily (in the absence of an objective argument). But these elements are also inscribed as part of the efforts through which society seeks to participate in the decision-making process of the government, contributing to regain legitimacy for public institutions and its policies.74 In other words, allowing and promoting access to information can be seen as a two-way road where information flows constantly from the agents to principals and vice versa; feed-backing the design and implementation of policies; and generating more confidence on how the government proceeds. In sum, on imp how the government is becoming transparent.

71 Ernesto Villanueva, "Aproximaciones Conceptuales a la Idea de Transparencia", in Mauricio Merino (coord.), op. cit, pp. 57-65; Ernesto Villanueva, "Estudio Introductorio", in Ernesto Villanueva (comp.), Derecho de Acceso a la Information Publico en Latinoamerica, Mexico, Instituto de Investigaciones Juridicas (Universidad Nacional Autdnoma de Mexico, 2003, pp. XV- LIII. 72 There can be restrictions in the provision of some data. As will be discussed in the following pages, the government could have a commitment toward transparency and access to public information; but it also has the responsibility to watch over the interests of the country, to preserve the viability and integrity of the state. 73 John M. Ackermann and Irma E. Sandoval, Leyes de Access a la Information en el Mundo, Mexico, Instituto Federal de Acceso a la Informaci6n, 2005 (No. 7, Serie Cuadernos de Transparencia), p. 13. See below the discussion about the limits that a government faces in the disclosure and dissemination of its information. 74 Herke Kranenborg and Wim Voermans, op. cit., p. 10. 75 Alasdair Roberts, "Structural Pluralism and the Right to Information", in The University of Toronto Law Journal, 51(3), 2001, pp. 243-245.

23 However, the notion of access to information, as I have explained it, is not complete without reference to what Sergio Lopez Ayllon has called the three basic elements that compose the right to information: 1. the right to obtain information, archives, registries and documents and to choose the source of information; 2. the right to inform, which comprises the freedom of speech and print, as well as the foundation of media organizations; and 3. the right to be informed in a timely and objective way, which also implies that the information should be available for all individuals. In this sense, the concept of information should no be a limited one, but a notion that incorporates the "procedures -stock, storage, treatment, diffusion and reception- documents of different types, as well as facts, notices, data, opinions, and ideas", "because the instruments, mechanisms and technologies" employed for the transmission and organization of the information are constantly evolving and transforming the communication between individuals and organizations and, as a result, between citizens and governments.77 The arguments developed here can apply both to public and private organizations, but this thesis deals with the information generated and provided by governmental structures. It would be possible to argue that an ideal world would be one where the government releases all the information that it has developed in the construction of public policies and political strategies. However, this is not true, per se\ since the information needs to fulfill some attributes beyond the publication and dissemination of certain data and/or documents. In fact, the information provided by the public institutions needs to be of high quality (truthful, clear and timely); consistent, that is to say, that the information needs to be the same in all the sources of information; and of easy access, that refers to a liberal principle by which every person has the right to access governmental

76 Cfr. Sergio L6pez Ayll6n, "El Derecho a la informaci6n como Derecho Fundamental", en Jorge Carpizo y Miguel Carbonell, Derecho a la Information y Derechos Humanos. Estudios en Homenaje al Maestro Mario de la Cueva, Mexico, Universidad Nacional Aut6noma de Mexico, 2000, pp. 157-160. 77 Ernesto Villanueva, "Aproximaciones...", art. cit, p. 58.

24 information in an comprehensible way. In other words, that the information released can be easily understood by the public, relevant for understanding the political process and the governmental procedures; that it can arrive when it is necessary for the public to form an opinion about public issues; and finally, that a citizen can rely of the data provided by the government. Somehow it will be difficult that all the information released by the government achieve these characteristics, but governmental actions need to work toward those objectives if there is a real commitment toward applying effectively and efficiently the right to access public information. Nevertheless, the elements referred to constitute an ideal itself in the provision of the information by the government.79 The field of information laws has been working from its foundation with the limits and exceptions to the principle of publicity. Jurists have not converged to a consensus on which type of information should not be disclosed. "Social damage" and "public interest" are the two key and opposing elements in this discussion. It is clear that some information should not be released by a government, because it can harm (directly and/or indirectly) individuals, specific groups, or the whole society and the viability and stability of the political structures. The tension arises, however, when in this equation is introduced the notion of "public interest", that is to say: released information can harm others, but to what extent is this more valuable than the sake of the state and its institutions? Perhaps, this a question that cannot be addressed theoretically, but needs to be resolved empirically, case by case. For that reason, scholars have agreed that the law has to consider this conflict and try to be as clear as possible in the conceptualization of those cases where the government reserves information. This legal clarity is necessary to avoid its abuse from the political elite, in an attempt to limit individuals' knowledge about the government's work. Finally, a related aspect that should be taken into account is about the persons and/or institutions that decide which

Helena Hofbauer and Juan Antonio Cepeda, "Transparencia y Rendici6n de Cuentas", in Mauricio Merino (coord.), op. cit., p. 39. 79 Coordinaci6n de Asesores del C. Secretario de Gobernaci6n, Transparencia, Fiscalizacion y Rendition de Cuentas. Propuestas de la Secretaria de Gobernacion a la Mesa VII de la Primer a Convention National Hacendaria, Mexico, Secretaria de Gobernaci6n, March 10th, 2004. 80 John M. Ackermann and Irma E. Sandoval, op. cit., p. 21.

25 information will be released. If the government determines what information will be given to the public and what will be put in reserve, and citizens have no means to challenge this decision, the right of access to information could be no more than a mere facade with other political objectives. For that reason, a third party involved in this process -a neutral (or seemingly neutral) structure- will be desirable to guarantee the effective application of this right. Its presence or absence could influence the degree (quality) of application of this right. The field of Information Law has developed a whole area of research devoted to the analysis of "habeas data", as a procedure "designed to protect, by means of an individual complaint presented to a constitutional court, the image, privacy, honour, information self-determination and freedom of information of a person".81 Nevertheless, as in the case of "public interest", referred above, jurists consider that governments could use this notion arbitrarily to prevent individuals to access information that could prove misuse in the public resources and functions of public officials. That is to say, "Public and private borders have legitimate and illegitimate crossing points and interstitial gray areas that are often in dispute or unclear". It is beyond the scope of this paper to deal with the public-private dichotomy, and how it affects the discussion about access to governmental information. It is enough to mention, in the words of Gary Marx, that this binomial expression refers to unfixed and relative concepts that sometimes overlap, cross cut or oppose each other depending on the context. Moreover, the meaning of public and private "lies in how they are interpreted and framed"83 and also in who makes this interpretation: it depends on the specificity of the case whether the private or the public concept can be applied.

Andres Guadamuz, "Habeas Data Vs. the European Data Protection Directive", in Journal of Information, Law and Technology 3,2001, p. 4. 82 Gary T. Marx, "Murky Conceptual Waters: The Public and the Private", in Ethics and Information Technology 3(3), p. 157-169. 83 Idem. Marx argues "that rather than approaching the public and private as uni-dimensional, rigidly dichotomous and absolute, fixed and universal concepts, whose meaning is determined by the objective content of the behavior, they are best conceptualized as multidimensional (with dimensions sometimes overlapping or blurred and at other times cross cutting or oppositional), continuous and relative, fluid and situational or contextual, whose meaning lies in how they are interpreted and framed".

26 Moreover, a focal aspect of accountability and government's transparency is the diffusion of public information. Accountability mechanisms, firstly, are based on the data provided by different levels and political structures over public actions. Transparency, secondly, implies the capacity to provide citizens with the tools to search for, receive and transmit information. This can help individuals to have a better understanding about the way in which the structures of the government function. A final aspect that needs to be considered in the discussions about the content of information laws is the differentiation between the notions of "passive" and "active" access to information. On the one hand, governments have developed strategies whose objective was disclosing or publishing certain (sometimes basic) information because a norm obliges them to do it. This composes the passive access to information. Even though all individuals benefit from the provision of that information, other information will be necessary to evaluate the performance of the government. In this context, the government is compelled to release data requested by the citizens. The request of information constitutes, in this context, the "active" mechanism of the concept of access to information.

2.3. Transparency and Access to Information and its linkage to democracy The relationship between accountability, transparency and access to information with a democratic government is, for some authors, evident. For others, the link between those elements is controversial.85 The notions of accountability, transparency and access to information are linked to those concepts in democracy that emphasize the idea of limited government; limited in the sense that its actions need to be circumscribed within a democratic rule of law. That is to say, "The state has a contract with the public and is held accountable for its actions through periodic elections, the extension and exercise of political and civil rights, to the input of opposition groups, instituted redress for maladministration and access to

Mauricio Merino (coord.), op. cit.; Patrick Kilby, "Accountability for Empowerment: Dilemmas Facing Non-Governmental Organizations", in World Development 34(6), pp. 951-963. 85 Bernard I. Finel and Kristin M. Lord, art. cit., p. 316.

27 information, which facilitates transparency". As part of liberal theory, Jeremy Bentham stated why transparency and access to the information of public institutions are necessary to strengthen a democratic system of rule. In a democracy, the publicity of governmental information helps to prevent abuses of the power delegated to the political structures. However, "it is possible to imagine states with democratic institutions [...] that are not very transparent" and "authoritarian regimes that may be relatively transparent". I have sought to delimit the concepts of accountability, transparency and access to information, but nothing has been said until this point about the notion of democracy that I will use along the text. From what has been developed in the preceding pages, it is clear that the minimal and procedural notion of democracy that only implies holding free, fair and competitive elections is of limited use (elections also need to be transparent) for the purpose of this thesis89, since those criteria do not match entirely with the arguments outlined here. Democracy cannot be reduced to electoral procedures, despite their importance, since history has taught us that even countries that have fulfilled that Schumpeterian90 requisites could not be called democratic, in the sense that the rule of law is extremely weak, separation of powers is a constitutional fiction and other civil and political liberties are neither respected nor protected within the state. The liberal component of modern democracies has been somehow dismissed by scholars in the very first analysis about democratization, and became important only when elections led to "delegative democracies"91, that is to say, when the electoral processes were used as a facade to hide the authoritarian characteristics

Joy Marie Moncrieffe, "Reconceptualizing Political Accountability", in International Political Science Review/Reveu Internationale de Science Politique 19(4), 1998, pp. 388. 87 Jeremy Bentham, op. cit. 88 Bernard I. Finel and Kristin M. Lord, art. cit., p. 316. 89 Cfr. Guillermo O'Donnell, Philippe C. Schmitter and Laurence Whitehead, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies, Baltimore, Johns Hopkins University Press, 1986. The democratic definition of Joseph Schumpeter is restricted only to the notion of free, fair and competitive elections. For him, "The democratic method is that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote". Joseph Schumpeter, Capitalism, Socialism and Democracy, New York, Harper and Brothers, 1942, p. 269. 91 Guillermo O'Donnell, "Delegative Democracy", in Journal of Democracy 5(1), 1994, pp. 55- 69.

28 of a particular regime. The right to information, in this sense, can be inscribed as part of constitutional liberalism, and a right that has been relatively weak in the world during the last decades.92 In this context, both transparency and access to information belong to the realm of the newest political reforms implemented to enforce the exact application of the law by all the citizens of a country, as a way in which rulers are obliged to inform about the decision-taking process of a public policy, as well as the outcomes of the implementation of those public strategies. As the Supreme Court of India argues: Where a society has chosen to accept democracy as its creedal faith, it is elementary that its citizens ought to know what their government is doing. [...] No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy.93

This statement transcends the procedural and minimal notions of democracy. Elections need to be complemented with the right to access the governmental information as a mechanism to control the actions of rulers from violating the civil, political and social liberties of individuals, that is to say, seeking to constrain them to the rule of law. Accountability is not only seen in electoral terms, but as a continuous process of supervision of governmental activities. Moreover, accountability, transparency and access to information work together only in a representative and democratic system, since we can find in this type of government effective mechanisms of bottom-up supervision (from citizens to governments) and the implementation of checks and balances (horizontal systems, ones that function among governmental structures, and in the presence of strong political organizations). Those citizens that live under democratic rule "seek to

92 "Democracy [was] flourishing; constitutional liberalism [was] not". Fareed Zakaria, "The Rise of Illiberal Democracy", in Foreign Affairs 76 (November/December), 1997, pp. 22-43. 93 Cit. in Alasdair Roberts, art. cit., p. 262.

29 constrain the behavior of public officials, to limit their discretion, to prevent them from abusing their power".94 Guillermo O'Donnell95 argues that a fallacy in Latin American politics has been, indeed, the presence of formal mechanisms that supposedly were established to control, by electoral means, the behavior of the political elite. But the other part of the "accountability" equation is often forgotten: "Just as vertical accountability implies the presence of democracy, the weakness of horizontal accountability implies a corresponding weakness in the liberal and also the republican components of many new polyarchies".96 Transparency and access to information, from this perspective, relate basically to the notions of vertical accountability, since both constitute a prime mechanism that citizens can use to evaluate the performance of their government, creating a direct link between the ruled and the rulers. However, transparency and access to information can also play a definite role regarding horizontal accountability. Checks and balances within the government rely on the information that each structure of rule posses. Accountability, in the horizontal sense, benefits indirectly when any public office makes available to the public additional information about its actions. For example, the legislative branch of government can ask the structures of the executive to explain the information published in a newspaper about the performance of any public policy.

Accountability is a prime element of a democracy, since this type of government allows public servants to be called to account for their actions while they occupy a public office. As Held contends, "modern polity was built on the idea of the modern state and a system of state-based accountability". But the promotion of accountability based on transparency and access to information mechanisms constitutes a system that can strengthen the relationship between

Robert D. Behn, Rethinking Democratic Accountability, Washington, D.C., Brookings Institution Press, 2001, p. 9. 95 Guillermo A. O'Donnell, "Horizontal Accountability in New Democracies", in Journal of Democracy 9(3), 1998, pp. 112-126. 96 Ibid., p. 113. Cfr. Robert Dahl, Polyarchy. Participation and Opposition, New Haven, Yale University Press, 1971. 97 David Held, "Democratic Accountability and Political Effectiveness from a Cosmopolitan Perspective", in Government and Opposition 39(2), 2002, pp. 364.

30 government and citizens. Those elements allow not only individuals to become informed about the practices developed by public institutions, but also to set in motion the checks and balances process within the government. In this context, transparency and access to information could be seen as fire alarms that indicate where there are deviations from the norms that guide the actions of individuals in government, or whether the rules allow for possible room for illegal behavior." That is to say, as explained by Catalina Smulovitz and Enrique Peruzzotti, transparency and access to information can be seen as control mechanisms that activate "societal accountability", control of the government from society - common citizens, social organizations and movements and media. 10° In the long run, those systems not only can help to supervise the government, but also to build links of trust between the rulers and the ruled.101 Accountability, transparency and access to information -jointly with free, fair and competitive elections and the effective rule of law- emerge as pillars of liberal and constitutional democracy. In this sense, accountability, transparency and access to information help to deepen democracy in a country, since they can be seen as mechanisms to evaluate the relationship that reduces the distance between the rulers and the ruled. Moreover, in a context of transition from authoritarian or non-democratic contexts to more pluralistic ones, accountability functions not only to legitimate the new system regarding the ancien regime, but also as an antidote to reconcile past and present. The consolidation of a democracy passes necessarily through the electoral arena but is not exhausted by having free, fair and competitive elections; transparency and access to information are also necessary to legitimate the electoral process, and expanding these concepts to the rest of the governmental structures is essential, for the sake and survival of a pluralistic system of government. Indeed, that implies the

Juan Pablo Guerrero, art. cit., p. 48. 99 Jose" Antonio Aguilar Rivera, op. cit., p. 32. Rodolfo Vergara, La Transparencia como Problema, Mexico, Institute Federal de Acceso a la Informaci6n, 2005 (No. 5 Serie Cuadernos de Transparencia), p. 28. 100 Catalina Smulovitz and Enrique Peruzzotti, "Societal Accountability in Latin America", in Journal of Democracy 11(4), 2000, p. 147. 101 Cfr. Charles Tilly, Trust and Rule, Cambridge, Cambridge University Press, 2005.

31 necessary institutionalization of procedures based on liberal constitutionalism, embodying an "extended" notion of democracy. In other words, democracy cannot be restricted to a periodic electoral judgment. As Philippe Schmitter remarks, in a democracy "each citizen has the same rights and obligations, that is, to be informed (with limited exceptions) about official actions, to hear justifications for them, to judge how well or poorly they are carried out, and to act accordingly -electorally or otherwise". But this supervision and control can only be exercised in a democracy if information about the government's actions is available. Moreover, if the political power resides originally in the hands of the citizens -according to the liberal and democratic arguments-, the right to access to the data of government cannot be seen as a concession of the regime, but as an obligation to fulfill the promises of the electoral competition and of liberal and constitutional democracy itself. Accountability, transparency and access to information can play a critical role when the previous regime was characterized by extensive corruption.103 Citizens, once electoral democracy is achieved, need more elements to trust in a pluralistic structure of rule. It is necessary to reduce the gap between the individuals and public servants. Transparency and access to information, as part of an accountability system, can be precisely the link that could help democracy to endure in a country. Governmental responsibility constitutes an element that cannot be ignored, since it represents the struggle of liberal constitutionalism to make individuals answerable for their acts, and sanctioned if the rule of law is infringed.

Philippe Schmitter, "The Ambiguous Virtues of Accountability", in Journal of Democracy 15(4), 2004, p. 48. But scholars such as Schmitter and O'Donnell, who emphasize in their very first works on transitions to democracy the importance of elections for the transition process, have later noticed -with the passing of time and probably because of the problems faced by the "new democracies"-, the importance of accountability (and within this, transparency and access to information) when the country transitioned from an authoritarian regime to a democratic system of rule. In other words, free, fair and competitive elections do not lead necessarily to the establishment of a democracy. See Larry Diamond, "Is the Third Wave Over", in Journal of Democracy 7(3), 1996, pp. 20-37; and Thomas Carothers, "The End of the Transition Paradigm", in Journal of Democracy 13(1), 2002, pp. 5-21. 103 Catharina Lindstedt and Daniel Naurin, "Transparency and Corruption. The Conditional Significance for a Free Press", paper prepared for the conference The Quality of Government: What Is It, How to Get It, Why It Matters, GOteborg, Sweden, Goteborg University, November 17- 19,2005.

32 2.4. Final Remarks The discussions about transparency and access to information need to be framed within the field of accountability, in the promotion of vertical and horizontal controls. Conceptually, it is impossible to understand transparency without access to information; and without taking into account transparency, access to information loses one of its main objectives and characteristics. Transparency, in this sense, can be defined as a quality that distinguishes a particular government, its actions and the way in which it is perceived by the citizenry: a transparent government is one that is open to its citizens and accountable to them. As I have explained, transparency and access to information are not synonymous although they serve the same objective: promoting the accountability of the government and its officials, inhibiting illegal conducts from public servants, and fostering democratic governance. Indeed, from the arguments developed previously, it is clear that accountability, transparency and access to information go hand by hand with a democratic system of government, where the citizens are the original depositories of the sovereignty of the state -the ultimate and prime authority of power-, and where the rule of law is consistently observed by the rulers and the ruled. The next section will deal briefly with this relationship. The free circulation of information is the cornerstone of transparency and for every process that seeks to make public servants accountable for their actions and inactions. The government, in this sense, emerges as the one who has to guarantee the liberty of producing, developing and transmitting information among the ruled. "Information is power", the saying insists, and it is true. And if power ultimately resides in the citizens, information should be in their hands. For that reason, scholars believe that this should be considered a right that individuals have in opposition not only to the state, but also to other individuals. Moreover, the principle underlying the right to information is that all the citizens in a democracy should have equal access and participation in the circulation of information.

33 Transparency and access to information are inherently necessary in the electoral processes that lead to the establishment of a democratic system of rule. But transparency and access to information -once free, fair and competitive elections are achieved- need to expand to the whole political system and its institutions. In a democracy, both elements reinforce the practice of accountability, since they allow a citizen to know if the government act in different policy areas according to the legal framework. Those topics acquire importance when a country or regime transitions from an illiberal and undemocratic scheme to a more plural structure of government. Promoting accountability, transparency and access to information remain important elements in the transition since they imply restoring the channels of communication between citizens and their political institutions. In this context, the theoretical issues raised in this section are helpful for understanding the nature of the recent democratic transition that Mexico experienced. For many decades, the Mexican system was characterized by an authoritarian regime, and consequently, one that operated autonomously, without taking into account the will of the citizenry. However, accountability, transparency and access to information have acquired relevance in Mexico during the last decade due to the liberalization that the country has recently experienced. The arrival of political parties different from the one that ruled the country since 1929, open the possibility of introducing mechanisms to make public servants accountable for their actions in the political, social and economic fields. These efforts are inscribed as part of the opposition's efforts to gain legitimacy among the ruled and as a way to differentiate itself from the corporatist practices of the hegemonic party. In other words, transparency and access to information were viewed as the paths that could restore and strengthen the relationship between citizens and governments that emanate from the former opposition political parties. The next pages will be devoted to analyzing the recent evolution of transparency and access to information in Mexico. The level of analysis will be the federal one, since the major changes in those areas have occurred with the

34 political transition that occurred in Mexico when the hegemonic party was defeated in the presidential race of 2000. What was the context that had previously precluded the development of transparency and access to information in Mexico? How did accountability, transparency and access to information become relevant topics of the national agenda? What was the impact of the liberalization of the regime over the structures of government? How can transparency and access to information be framed in the current political context of Mexico? This will be the main questions of the following chapter.

3. ACCESS TO INFORMATION AND TRANSPARENCY IN MEXICO BEFORE 2001 Accountability is a relatively new topic in the public imaginary of Mexicans and in their political discourse.104 The emergence of the term and associated elements, such as transparency and access to information, can be framed as part of the political transition and liberalization that the country has been experiencing for the last 30 years. Opening the "black box" of government to a careful examination by the citizens essentially implies the presence both of certain degree of democracy within the political system and a commitment from public authorities to the enhancement of the rule of law in a territory. In this context, accountability, transparency and access to information and the consequent implementation of mechanisms to enforce them in Mexico should be seen as part of the transition to a more democratic system of rule in the country; in contrast to the authoritarianism that characterized the hegemonic years of the Institutional Revolutionary Party (PRI, Partido Revolucionario Institutional). An authoritarian regime, by definition, is neither transparent nor accountable to the citizenry, since it acts autonomously from society: "Authoritarian rulers face no obligation to obey the existing law or to accept a careful separation between the public good and private interests".105

104 Daniel C. Levy and Kathleen Bruhn, "Mexico: Sustained Civilian Rule and the Question of Democracy", in Larry Diamond, Jonathan Hartlyn, Juan Linz, and Seymour Martin Lipset (eds.), Democracy in Developing Countries. Latin America, Boulder, Colorado, Lynne Rienner Publishers, pp. 519-524. 105 Guillermo O'Donnell, "Horizontal Accountability", art. cit, pp. 120-121.

35 In this chapter I will argue first that the enactment of transparency and access to information mechanisms in Mexico during the administration of Vicente Fox (2000-2006) -the first federal government that did not belong to the former hegemonic party- represents a reaction to the authoritarian system that characterized the PRI-regime (1939-2000). I also make the case, secondly, that the fight against corruption and the promotion of accountability within the public sector and the federal institutions followed a gradual process in the country. The 1980s saw an intense discourse of the government to "moralize" the work of the public structures. But despite the announcements of the federal authorities to deter corruption from the public sphere, their actions remained mostly as part of the political rhetoric, applying the novo Hispanic maxim of "obey but not execute", which meant simulating the obedience to law in paper, but avoid its real application.106 In this sense, thirdly, the consolidation of an electoral democracy and the institutionalization of accountability, transparency and access to information in Mexico moved in parallel, mutually reinforcing ways. The pressures for making governmental actions more transparent and for releasing information of public structures derived also from a structural change in the socioeconomic structure of the country: society became more aware of the government's policies, and demanded effective actions to attack corruption within the regime. For that reason, the PRI federal governments of the 1980s implemented anti-corruption strategies: not in an effort to challenge that evil, but as a mechanism to regain legitimacy. That is to say, their commitment did not transcend the political discourse. Only when opposition parties gained elected positions, was the promise of transparency and access to governmental information translated into concrete policies in an effort to signal a differentiation from the PRI.

Miguel Bahena, Corruption: Breve Relatoria de Imaginarios, Mexico, Secretaria de la Funci6n Publica [Programa Anticorrupcidn], 2005, p. 2.

36 3.1 The Mexican Political System: A General Overview The political history of Mexico in the 19th century is one where the presence of the national government in the country was very weak.107 In contrast, its history of the 20th century is commonly characterized by the omnipresence and omnipotence of the Mexican State and its key and representative figure: the president of the Republic. The consolidation of the Mexican presidency as the principal actor of the political system implied the strengthening of the administrative structures of the executive branch of government at the federal level. But what are the origins of this political structuring? The foundations of the Mexican political system are located in the institutions inherited from its Revolution (1910s and 1920s). This was a system that established "their autonomy from and their authority over social forces".108 But despite the fact that the Mexican Revolution emerged as a movement against dictatorship, the result of the socioeconomic upheaval of the beginning of the 20 century was an authoritarian regime: the country's political system was structured around the figure of the president, whose strength and power was supported in the faculties that the Constitution give to him -and the executive branch of government-; and the role of the PNR-PRM- PRI (see Appendix, Table 1) as the arena where the revolutionary family could resolve their disputes.109 The PRI functioned as a hegemonic party used by the president to control the whole political class: to appoint individuals and members of political groups for positions in the executive and legislative branches and even the judiciary, at the three levels of government.

Cfr. Fran9ois-Xavier Guerra, Mexico: del Antiguo Regimen a la Revolution, Mexico, Fondo de Cultura Econ6mica, 1995. 108 Samuel Huntington, Political Order in Changing Societies, New Haven, Yale University Press, 2006, p. 318. 109 Daniel Cosio Villegas, El Sistema Politico Mexicano: Las Posibilidades del Cambio, Mexico, Editorial J. Mortiz, 1972, pp. 22-50. 110 Rogelio Hernandez, "La Historia Moderna del PRI: Entre la Autonomia y el Sometimiento", in Foro International 40(2), 2000, pp. 278-306. The regime experienced between the 1930s and the 1970s a concentration of almost the totality of the policy decisions in the executive branch, the federal bureaucracy, and the hegemonic party: the political, economic and social coordination of the country was basically personified by the president of the Republic. As the federal public administration and the PRI were headed by the president, they frequently acted autonomously from the society, even while ostensibly governing on its behalf. See E.V.K. Fitzgerald, "Recent Writing on the Mexican Economy", in Latin American Research Review 16(3), 1981, pp. 236-237;

37 The governments that belonged to the pax priista -inaugurated by President Lazaro Cardenas (1934-1940)111-, were regarded as the prototypic model of economic development and political stability, in contrast to the political and social unrest that characterized Latin American history in the 20th century.112 The ancien regime (the authoritarian system under the PRI until 2000), left to the country both positive and negative legacies. In the first case, the stability and modernization of the country during the otherwise turbulent 20th century in Latin America, as well as the creation of a middle-class and the organization of governmental structures remain, probably, as the main positive features of the post-revolutionary system. On the negative side, the "institutional revolution" of Mexico distinguished itself because of the patronage, clientelism, corporatism and, consequently, corruption which were extensively used by its political class as mechanisms of control and cooptation; a system that showed little respect to the civil and political rights of most of the citizenry of the country.114 This was the case because the president in the Mexican regime has legal and extra- constitutional powers which allow him to act isolated from society.115 As a

and Eduardo Torres Espinosa, Bureaucracy and Politics in Mexico. The case of the Secretariat of Programming and Budget, Brookfield, Ashgate Publishing Company, 1999, p. 20-25. 111 The years referred, some authors argue, began with the student repression of October 1968. See Il£n Bizberg, "Transition or Reestructuring of Society", in Joseph Tulchin and Andrew Selee (eds.), Mexico's Politics and Society in Transition, Washington, DC, Woodrow Wilson Center Press, 2002, pp. 143-175. 112 Antonio Carrillo Flores, "Mexico and Latin America", in Proceedings of the Academy of Political Science 27(4), 1964, pp. 124; and Albert O. Hirschman, "The Turn to Authoritarism in Latin America and the Search for Its Economics determinants", in David Collier (ed.), The Authoritarism in Latin America, Princeton, Princeton University Press, 1979, pp. 94. 113 Daniel C. Levy and Kathleen Bruhn, art. cit., p. 521-523. 114 Jonathan Fox, "The Difficult Transition from Clientelism to Citizenship: Lesssons from Mexico", in World Politics 46(2), 1994, pp. 154; Chappell Lawson, "Mexico's Unfinished Transition: Democratization and Authoritarian Enclaves in Mexico", in Mexican Studies/Estudios Mexicanos 16(2), 2000, p. 268. In the "Stabilizing Development" (Desarrollo Estabilizador) period (1950-1970), that was tolerated by the population. The government was committed to the provision of numerous public goods and broad health services to huge segments of the society; and sustained economic growth which helped to support the regime. Alan Knight, "Populism and Neo-Populism in Latin America, Especially Mexico", in Journal of Latin American Studies 30(2), 1998, pp. 223-248. 115 Luis Javier Garrido, "The Crisis of Presidencialismo". in Wayne Cornelius, Judith Gentleman, and Peter Smith (eds.), Mexico's Alternative Political Futures, LaJolla, California, Center for US.-Mexican Studies-University of California-San Diego, 1989, pp. 417-434; Cfr. Jorge Carpizo McGregor, El Presidencialismo Mexicano, Mexico, Porrua, 1994. See supra note 110.

38 consequence, the public administration and the party worked much without taking into account the citizens' will.116 The regime showed signs of weakening during the late 1960s, reaching a peak in the 1970s. The Mexican political system began to be unable to attend to the demands of a modern, open and more critical society.117 The government faced a strong opposition of social groups that criticized the closed nature of the regime, demonstrating that "the government was losing its ability to resolve conflicts within the Mexican society".118 For that reason, President Jose Lopez Portillo (1976-1982)119 launched many reforms in the political, economic and social fields.120 But those reforms sought principally to reconfigure the relationship of 191 the authoritarian system with society, and to maintain control of the country. That is to say, the federal government was not prone to open up to the citizenry, allow it to participate in the definition of public policies, or make effective the mechanisms of accountability in the law. In this sense, the Mexican political system was characterized by the extensive use of "secrecy", a pillar of the PRI-regime and a key element used both in the designation of public officials and in the elaboration of policies: "the secrecy of presidential politics in a closed elite system such as Mexico's removes from the public realm the possibility of knowing how the next president has been chosen or

Eduardo Torres Espinosa, op. cit, p. 25. 117 The social movements of 1964-1973 speak to the unwillingness of the system to hear and satisfy the needs of specific organized groups and, particularly, of the middle-class; and also explain the emergence of guerrilla movements in the country. Manuel Alejandro Guerrero, Mexico: La Paradoja de su Democracia, Mexico, Universidad Iberoamericana, 2004, pp. 42-43; and Ricardo Pozas Horcasitas, La Democracia en Blanco: El Movimiento Medico en Mexico, 1964-1965, Mexico, Siglo XXI Editores, 1993, pp. 210-225. 118 Stephen Fidler, "Mexico: What Kind of Transition?", in International Affairs 72(4), 1996, pp.714. 119 He ran alone for the presidency in 1976, the opposition parties did not present candidates for that position, giving less legitimacy to the federal electoral process of that year. Steven E. Sanderson, "Presidential Succession and Political Rationality in Mexico", in World Politics 25(3), 1983, pp. 315-334. 120 Jose" Mejia Lira, La Evaluacion como Herramienta para una Gestion Publica Orientada a Resultados. La Prdctica de la Evaluacion en el Ambito Publico Mexicano, Caracas, Centro Latinoamericano para la Administraci6n del Desarrollo, 2005, p. 2. With the political reform, the regime tried to give voice and participation to a wide range of opposition groups within the political system, to demonstrate that the authoritarian regime was somehow opening its door to the critics. 121 See supra note 117. Joseph Klesner, "Electoral Competition and the New Party System in Mexico", in Latin American Politics and Society 47(2), 2005, pp. 103-142.

39 to whom he is beholden". And secrecy is inherently tied to the discretional procedures used by the authoritarian regime to cover its corruption.123 The divorce between society and government implied that the bureaucracy and the political class have an asymmetric relationship in the information field: the government has in its hands the key information about Mexicans; but Mexicans know nothing about their government's work. "Information is power", the phrase says; however the power was not in the people, but in the political and administrative structures. The autonomy of the political power vis-a-vis society helps to explain how corruption became widespread, which explicates why the regime during the PRI- era was extremely reluctant to release information about the functioning of the political and administrative structures. In this sense, the political system decided randomly what should be known by the citizens and in which areas society's participation would be tolerable. In other words, the government released or made public the data and documents that would help to strengthen or recover credibility for the system.124 "Opacity",125 then, became the term used to describe the design and implementation of discretionary programs and policies under the PRI,126 most with clear clientelistic purposes.127 The political and economic breakdown of the 1970s and 1980s forced the restructuring of the government, and reduced the capacity of the regime to secure control, cooptation and coordination in the country to guarantee the loyalty of the

Steven E. Sanderson, art. cit, p. 315. 123 Miguel Angel Valverde, La Corruption en Mexico y el Entorno International, Lisboa, Portugal, VII Congreso Internacional del CLAD sobre la Reforma del Estado y de la Administraci6n Piiblica, 8-11 Oct. 2002, pp. 1-2. In this context, it is possible to inscribe the "moral renovation of society" undertaken by Miguel de la Madrid (1982-1988). 124 "De la Ley Federal de Acceso a la Informaci6n, Presentada por Diputados y Diputadas de Diversos Grupos Parlamentarios Representados en la C&mara de Diputados", in Gaceta Parlamentaria de la Cdmara de Diputados 895, December 7,2001. 125 Cfr. Jos6 Sosa, "Gobierno y Administraci6n Piiblica en Mexico. Apuntes para una Discusi6n Abierta", en Foro Internacional 40(3), 2000, pp. 522-551. 126 Irma Sandoval, Rentismo y Opacidad en Procesos de Privatization y Rescates, Mexico, Institute de Investigaciones Sociales [Laboratorio de Documentaci6n y Analisis de la Corrupci6n y la Transparencia], 2006. 127 The National Solidarity Program developed by Carlos Salinas in 1991-1992 constitutes an example of how the federal government designed and implemented programs which also had clientelist objectives. See Juan Molinar and Jeffrey Weldon, "Electoral Determinants and Effects of PRONASOL", in Wayne Cornelius, Ann Craig and Jonathan Fox (eds.), Transforming State- Society Relations in Mexico. San Diego, California, Center for US-Mexican Studies, pp. 123-141.

40 social, economic and political elites. Moreover, the "people gain access to whatever material resources the state has to offer without having to forfeit their right to articulate their interests autonomously". The inability of the system to satisfy the demands of society and its organized groups explains why the former ruling party began to lose important spaces in the electoral grounds. In the federal election of 1988, and for the first time in its history, the PRI would not have the two-thirds majority in the Chamber of Deputies needed to make constitutional reforms and advance the reformist agenda of the new president, Carlos Salinas (1988-1994). For that reason, Salinas himself agreed to pact with the leadership of the PAN, and a year later the president recognized the victory of the candidate of this party to the government of Baja California. The initial political liberalization experienced by the country emerged from a pact between the elites, but the reforms of this period, like the preceding one, were intended to legitimate PRI dominance, not actually to promote democratization. The political132 and administrative reforms133 continued during the 1990s. And the political map was transformed radically, since opposition parties conquered different positions at the subnational and national level. And, when President

Many businessmen, for example, broke their alliance with the PRI and became part of the PAN, and some of them "inaugurated a more radical and defiant political" attitude. Peter S. Cleaves and Charles J. Stephens, "Review: Businessmen and Economic Policy in Mexico", in Latin American Research Review 26(2), 1991, p. 191. And trade unions rebelled against the workers' confederation; and citizens began to demand from the three levels of government respect for their civil and political rights. Bertha Lerner de Sheinbaum, "El Estado Mexicano y el 6 de Julio de 1988", in Revista Mexicana de Sociologia 51(4), 1989, pp. 199-200. 129 Jonathan Fox, art. cit, p. 153. 130 The best account of the evolution of the National Action Party in Mexico can be found in Soledad Loaeza, El Partido Action National: la Larga Marcha, 1939-1944. Oposicion Leal y Partido de Protesta, Mexico, Fondo de Culture Economica [Colecci6n Politica y Derecho], 1999. Salinas allied with PAN in Congress not only to pursue his reformist agenda, but to gain the legitimacy that he did not get in the 1988 election. 131 Nevertheless, once the electoral door was opened, the regime was forced to accept some degree of free, fair and competitive elections. See Stephen D. Morris, "Mexico's Long-Awaited Surprise", in Latin American Research Review 40(3), 2005, p. 418; and Joseph L. Klesner, "Review: An Electoral Route to Democracy? Mexico's Transition in Comparative Perspective", in Comparative Politics 30(4), 1998, pp. 477-497. 132 Caroline C. Beer, "Review. Institutional Change in Mexico: Politics after One-Party Rule", in Latin American Research Review 37(3), 2002, pp. 149-161; Chappell Lawson, "Mexico's Unfinished Transition: Democratization and Authoritarian Enclaves in Mexico, art. cit., pp. 267- 274. 133 Jose" Mejia Lira, op. cit., pp. 1-11; Maria del Carmen Pardo, "La Modernizaci6n Administrativa Zedillista, £Mas de lo Mismo?, in Foro International 43(1), 2003, pp. 192-214.

41 Ernesto Zedillo (1994-2000) took office, the opposition parties governed only three states out of 32. But in 2000, they controlled 13, and an increasing number of municipal governments -from 222 in 1994 (9% of the total), to 687 at the beginning of 2001 (28%).134 The political panorama was changing dramatically, but there were no reforms to improve the accountability of the political structure to the citizens. In the long run, the reforms conducted by president Zedillo not only made a democratic transition possible, but helped to regain legitimacy for the regime, betting that this would help the PRI to continue in power.135 In this context, Mexico's long political transition can be explained in the efforts of the PRI to revive clientelist networks136 tied to the president and the PRI. But the economic setback of the 1990s broke with the aspirations of the regime to establish new mechanisms that would help it to perpetuate in power; and the regime had to give political spaces to the opposition as part of the pact to support its policies.137 The authoritarian period under the PRI was marked by the lack of transparency and accountability. The regime sought to operate independently from the citizenry, making possible the extensive use of corporatist schemes and

Cfr. Vicente Fox, Anexo Estadistico. Sexto Informe de Gobierno, Mexico, Poder Ejecutivo Federal, 2006, pp. 559-564; Steven Barracca, "Gubernatorial Politics and the Evolution toward Democratic Federalism in Mexico", in Regional and Federal Studies 17(2), 2007, pp. 184; and Jonathan T. Hiskey and Shaun Bowler, "Local Context and Democratization in Mexico", in American Journal of Political Science 49(1), 2005, pp. 57-71. As Hiskey and Bowler argues, the Mexican "transition to democracy" began at the local level, since the PRI regime allowed the participation of opposition parties mainly at the municipal level. 135 The presidential elections of 1994 have been seen as a threshold in the political transition of Mexico. The election of that year was relatively clean, in contrast with the one of 1988. In 1994, the PRI, thus, showed its ability to win elections under somewhat free, fair and competitive elections. In that sense, the regime sees in this reform the possibility of to maintain the control of the federal government in 2000. See Beatriz Magaloni, "Transition Games from Single-party Authoritarianism: The case of Mexico", paper prepared for delivery at the conference Advances and Setbacks in the Third Wave Democratization in Latin America", Notre Dame, Indiana, Helen Kellogg Institute of International Studies at the University ofNotre Dame, April 23-24, 2001. 136 Like the ones linked to the National Solidarity Program (PRONASOL, Programa Nacional de Solidaridad). 137 However, they give them access to position that would not affect the interests of the party and the political system. See M6nica Serrano, "The Legacy of Gradual Change: Rules and Institutions under Salinas", in M6nica Serrano and Victor Buhner-Thomas (eds.), Rebuilding the State: Mexico after Salinas, London, London University (Institute of Latin American Studies), 1996, pp. 3-23.

42 clientelist networks to maintain the PRI in power, and secrecy constituted one of the basic elements of the political system in reducing political conflicts among the elite and its supporters -that institutionalized in a sort of "bribery" system designed to promote the cooptation of groups and individuals. For that reason, it is unthinkable that the regime would have promoted policies that would lead to the implementation of policies that make transparent (public, open to the citizenry) the governmental work and public servants accountable for their actions to society. Mexican public institutions enjoyed a great degree of autonomy in their operation.140 And since the Mexican democracy existed only on paper -in the Constitution-, accountability, transparency and access to information had to wait for the liberalization of the regime to become effective. In sum, the particularities of the Mexican political structure under the PRI made it less prone to assume a commitment toward accountability, transparency and access to information, since those elements would have limited the secrecy associated to the post-revolutionary structures of government; one in which democracy existed only on paper, and the rule of law was applied randomly. Accountability, transparency and access to information cannot survive in an authoritarian system, and are antagonists to the mechanisms of cooptation and control used by the Mexican regime, such as clientelism, patrimonlism and corporatism. In that sense, the liberalization of the regime during the 1990s and the gradual consolidation of a democratic system in the country made possible the introduction of systems of accountability and transparency. As was mentioned in section 1.3, those can only survive and be exercised in a political system where government officials are effectively responsible to the citizens for their actions while in office. The political transition and the arrival of a more democratic rule to the country, in this context, represent the catalysts that led to the

138 James G. Samstad, "Corporatism and Democratic Transition: State and Labor during the Salinas and Zedillo Administrations", in Latin American Politics and Society 44(4), 2002, pp. 1- 28. 139 See, for example, the argument and conclusions of Dan A. Cothran, "Budgetary Secrecy and Policy Strategy: Mexico under C&rdenas", in Mexican Studies/Estudios Mexicanos 2(1), 1986, pp. 35-58. 140 Eduardo Torres Espinosa, op. cit., pp. 24-51.

43 implementation of schemes seeking to promote transparency and access to information, as will be explained in section 3.2.

3.2 Recent Antecedents of Transparency and Access to Information in Mexico The Mexican government under the PRI was, as explained, very reluctant to release information about its daily work. At the federal level, the information provided by public structures consisted mainly of the reports that they were obliged to present by law: basically, the Annual Government Report of the president, and the socioeconomic data provided by the National Institute of Geography and Information Technology (INEGI, Instituto Nacional de Estadistica, Geogrqfia e Informaticd). The federal government closed the channels of communication with society.141 The regime under the PRI developed and evolved without taking into account the voice of society: during many decades, individuals were treated as '"subjects' rather than 'citizens'".142 The first important change in the report process occurred in 1974, when the Congress of the Union approved a reform to Article 93 of the federal Constitution.143 By this reform, the heads of the secretariats and administrative departments were obliged give account to Congress about the situation of their respective offices. In 1976 the same article of the Constitution was reformed again, adding a paragraph that obliges the secretaries and public servants in charge of administrative departments to respond to the information requirements of the Congress.144 But the reforms and the information provided by the federal

Ernesto Zedillo, Plan Nacional de Desarrollo 1995-2000, Mexico, Poder Ejecutivo Federal, 1995, p. 39. 142 James A. McCann and Chappell Lawson, "Presidential Campaigns and the Knowledge Gap in Three Transitional Democracies", in Political Research Quarterly 59(1), 2006, pp. 13-22. 143 "Decreto que Reforma el Articulo 93 de la Constituci6n Politica de los Estados Unidos Mexicanos", published in the Diario Oficial de la Federacion, June 31, 1974. 144 "Decreto mediante el cual se declaran reformados los articulos 21, 55, 73, 76, 79, 89, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 110, 111, 116, 122 y 123 de la Constituci6n Politica de los Estados Unidos Mexicanos", published in the Diario Oficial de la Federacion, December 31, 1994. The reform of the Article 93 determined also the draft of the 1976 Organic Law of the Federal Public Administration (LOAPF, Ley Orgdnica de la Administracion Publica Federal, 2007). The Article 23 of the LOAPF reinforced this argument. The Planning Law (Ley de Planeacion), which was approved later, reinforced those arguments. Planning Law, published in the Diario Oficial de la Federacion, January 5, 1983.

44 public administration, as will be seen latter, was insufficient to explain the operation of the federal government.145 Moreover, since the same party controlled the executive and dominated the legislative branch, these mechanisms of horizontal accountability were ineffective in practice. In the field of access to information, and as part of the "reform of the state" project undertaken by the Lopez Portillo administration, the major change occurred when the federal Charter was modified adding a phrase to its Article 6,146 introducing the concept of "right to information" and obliging the state to guarantee it.147 But, this disposition quickly became a dead letter, since there was no specific regulation for that right; and the Supreme Court of Mexico insisted on that point in a judicial thesis of 1992, by making a restricted interpretation of Article 6 of the Constitution: "The addition to Article 6 of the Constitution [in 1976], which established that the right to information will be guaranteed by the State [...] cannot be seen as a right that allows every ruled, in the moment that she or he deems appropriate, to ask and obtain [...] any information from the State. But this does not imply that authorities are exempted of their constitutional obligation to inform, but this obligation has to be framed and determined by a secondary regulation; and [Mexican] citizens are not able to obtain information if there is not an explicit mechanism in the legal framework. In other words, the right to information does not create, in favor of any individual, the capacity to select on his or her own how to request any specific data on the actions of authorities".148

This position of the Supreme Court changed in the following years, but its first argument clearly exemplified the reluctance of the political elite and the federal authorities to make effective the right to information, which also meant

145 Infra note 158. 146 "Decreto que reforma y adiciona los articulos 6o., 41, 51, 52, 53, 54, 55, 60, 61, 65, 70, 73, 74, 76, 93, 97 y 115 de la Constituci6n Politica de los Estados Unidos Mexicanos", published in the Diario Oficial de la Federation, December 6, 1977. 147 Idem. 148 Cited in Ernesto Villanueva, art. tit., p. 60. See also David Vega Vera, "Derecho a la Informaci6n en Mexico: La Experiencia Federal", in Secretaria de Relaciones Exteriores, Memorias del Seminario International "Los Derechos Humanos y la Libertad de Expresion", Mexico, Secretaria de Relaciones Exteriores, 2006, p. 889-93.

45 restricting the citizens' access to governmental data, arguing the absence of secondary regulation.149 This argument shows why the federal government was able to ignore its own legislation on access to information without fearing any punishment from society. In the field of reporting information, a major change was introduced in 1982 when President Miguel de la Madrid (1982-1988) developed the National Democratic Planning System (SPD, Sistema de Planeacion Democrdtica), which derived in the enactment of the Planning Law.150 This norm forced every federal public administration to develop a National Development Plan (PLANADE, Plan Nacional de Desarrollo).151 PLANADE, according to law, has to be elaborated taking society into account by using a process of "popular consultation":152 the law, at least formally, obliged the federal institutions to establish mechanisms to relate more closely to society, and to involve it in the design of programs and plans of the national government; and permitted citizens, theoretically, to participate in the definition of the public policies of the federation. Nevertheless, those actions were again part of the political rhetoric of the authoritarian regime, since the De la Madrid administration followed the formal procedures and made public consultations about the projects and programs that would give support to his PLANADE, but indeed, this Plan was basically elaborated in the Programming and Budget Secretariat and on its final configuration, this document reflected very little the desires and views of Mexican society.154 The participatory scheme introduced by De la Madrid was a mere facade of the regime to gain credibility and trust from key socioeconomic groups in society.

But the gradual liberalization experienced by the regime in the electoral arena during the 1990s, transformed the relationship between the political elite and the

149 Ibid., p. 61. 150 Planning Law, 1983. 151 From that moment, every administration has had to elaborate and present this document to the Federal Congress in the year that follows its inauguration. 152 Miguel de la Madrid, Planeacion Democrdtica, Mexico, Institute Nacional de Administraci6n Piiblica, 1983, pp. 21-34. 153 Jose" Mejia Lira, op. cit, p. 5; Eduardo Torres Espinosa, op. cit, p. 136. 154 Eduardo Torres, op. cit, p. 115 and 136.

46 ruled. The partisan competition became "more" real, allowing, to some extent, a process of differentiation of the opposition parties vis-a-vis the PRI. That is to say, the opposition parties that won positions sought to establish a strong link with the citizens to override the corporatist links of the PRI with the labor, peasant and popular organizations. But this was not an easy task, since the PRI counted on the clientelist and corporatist nets developed in the authoritarian era, and still continued developing strategies in the effort to retain power.155 However, the division between the ruling structures and the citizenry was maintained, and the government only sought to get close to society when the system faced problems of legitimacy. The government of President Ernesto Zedillo (1994-2000), however, accepted that the links between the ruled and the rulers should be reinforced; and emphasized the necessity of establishing systems of information in the federal government in an effort to strengthen accountability, a prime element of his National Development Plan 1995-2000.156 Zedillo developed a formal strategy to open the government to public scrutiny, framed within the Public Administration Modernization Program 1995-2000 (PROMAP, Programa de Modernization de 1 en la Administration Publico). In this document, the federal government agreed that the data the government had released had not satisfied the informative needs of society, limiting the construction of a strong and effective system of accountability in the country: "The accountability process [in Mexico] has not satisfied the expectations of public information that is required by public opinion in order to formulate objective judgments about governmental activities. The opinions of the public have derived, at best, from the documents that

155 As the National Solidarity Program (PRONASOL, Programa Nacional de Solidaridad). See Juan Molinar and Jeffrey Weldon, art. cit. Moreover, for example, the federal government during the Salinas era was accused for giving fringe benefits to its allies, and because of the lack of transparency in the adjudging processes. See Sandro Garcia Rojas Castillo, "La lucha Contra la Corrupci6n en Mexico: La Reforma Integral en Materia de Justicia en el Marco Juridico Mexicano Frente al Reto de la Lucha Anticorrupci6n", paper prepared for delivery at the IX Congreso Internacional del CLAD sobre la Reforma del Estado y de la Administraci6n Publica, Madrid, Espafla, November 2-5, 2004. 156 Supra note 141. 157 Maria de Lourdes Flores Alonso, Reforma del Estado y Reforma Administrativa, Mexico, Centro de Estudios Sociales y de Opini6n Publica de la Camara de Diputados, 2001, p. 8.

47 are presented to other structures of government, or to higher administrative offices. Those documents can even be restricted to some, specific groups of people. What is more, some of those structures of government could not have the tools that would help them to verify the information provided... [However,] there has been no direct interaction between the government and the citizens to evaluate and openly discuss the outcomes of the objectives and duties of public institutions".158

The Zedillo administration recognized that the reports produced by the federal structures were useless to explain the policy outcomes, the degree to which the governmental projects and programs were fulfilled, and the obstacles that had been faced in their implementation, for example. Furthermore, it was recognized that the information produced by public institutions was not public at all, since it was restricted to key decision makers. In other words, the principle of publicity of governmental information was indeed denied. Thus, accountability emerged as the key concept in Zedillo's PLANADE and PROMAP,159 and was linked to the mechanisms to fight corruption in the structures of government,160 to inform about the services provided by the federal public administration and to promote a more "intense" social participation in the definition of governmental policies, projects and programs.161 But the notion of accountability used by the Zedillo administration is a restricted one, since it implies no more than only giving information about services, and encouraging social participation in the design of

"Programa de Modernizaci6n de la Administraci6n Piiblica 1995-2000", published in the Diario Oficial de la Federation, May 28, 2006. pp. 27-28. 159 See, for example, Ernesto Zedillo, Sexto Informe de Gobierno, Mexico, Poder Ejecutivo Federal, 2000, pp. 117-133. 160 That means, at least in the documents checked, supervising the "Delivery and Receipt Certification Record" that every public servant has to elaborate when she or he is leaving a position in any governmental office. The chapter of "Accountability of the Public Servant" in the last Report of President Zedillo emphasizes the importance of these mechanisms in the fight against corruption, and the outcomes of the corrective systems developed by the Comptrollers General and Administrative Modernization Secretary (SECODAM, Secretaria de la Contraloria y Desatrollo Administrativo), and civil and penal sanctions imposed to those who violate the Public Servants Responsibilities Federal Law (LFRSP, Ley Federal de Responsabilidades de los Servidores Publicos). 161 Ernesto Zedillo, Plan National de Desarrollo 1995-2000, op. tit., p. 56. Participation generally refers to the mechanisms by which citizens can make their complaints and accusation of the misconduct of public servants.

48 public policies. Accountability also implies that public servants need to inform about their actions and decisions while in office,163 elements absent in Zedillo's notion of accountability. Moreover, in the same line of reasoning, it is possible to say that Zedillo used also a limited notion of access to information, restricting it to knowledge about services provided by the federal government. Furthermore, transparency was also an element present in the discourse of those programs, but used only to speak for the clarity that should prevail in public offices about the services provided, as well as the legal and administrative procedures that should guide governmental work. Transparency, as referred in section 1.2, also implies a public exposure of the policies and the decisions of the government, and the establishment of a set of rules that allow for the exchange of information between public officials and the citizenry. Those elements, however, are not present in Zedillo's conception of accountability. Zedillo embarked in this project pressed for actions that would promote "transparency, honesty, efficiency and effectiveness in the administration of public resources", and to reduce the levels of corruption within the bureaucratic structures of the government.164 But, as Maria del Carmen Pardo demonstrates, these strategies had a limited scope,165 since they were developed with the purpose of regaining credibility for the regime. The PROMAP did not fulfill all its promises, and it remained as one more of the "good-intentions" documents of the Mexican government. As such, the political openness or liberalization of the Mexican regime passed through the electoral arena. But once free, fair and competitive elections were relatively secured, it was necessary to turn to other factors that affect the process of democratization. When the PRI departed from office the new government sought to differentiate itself from the structures of the ancien regime.

162 Paul G. Thomas, art. cit, p. 352. 163 Andreas Schedler, "Conceptualizing Accountability", art. cit., p. 14-16. 164 Maria del Carmen Pardo, "De la Administraci6n Publica Tradicional a la Gobernanza: los Servicios Civiles de Carrera", paper prepared for the XI Congreso Internacional del CLAD sobre la Reforma del Estado y de la Administration Publica, Guatemala, Guatemala, November 7-10, 2006, p. 17. 165 Maria del Carmen Pardo, "La Modernizacion Administrativa Zedillista...", art. cit., p. 214.

49 3.3 Transparency and Access to information in the Governmental Transition of 2000-2001 Scholars agree about the "gradual", "slow" and somehow "smooth" transition to democracy that Mexico experienced during the last two decades of the twentieth century. The Mexican authoritarian regime, "the world's oldest [political system] and the only remaining product of the social revolutions" that inaugurated in the 1910s,166 was victim of the modernization process initiated during the "Stabilizing Development" period.l 67 During the last half of the Zedillo administration, it was clear that the electoral competition for the presidency in 2000 would be definitely the most important challenge of the PRI since its foundation: the PRI not only lost the control of the Chamber of Deputies in the mid-term elections of 1997, but many important municipalities and state governments were in the hands of the opposition parties. Moreover, Vicente Fox Quesada, the governor of Guanajuato,168 a central state of Mexico, was the frontrunner within the National Action Party (a Christian Democratic Party founded in 1939, in the period where the presidential leadership at the national level was probably not more contested).169 At the end of 1999, the other main parties selected their presidential candidates: Francisco Labastida, former Interior Minister {Secretario de Gobernaciori) was the contender of the PRI; the Party of the Democratic Revolution (PRD, Partido de la Revolution Democrdtica) nominated Cuauhtemoc Cardenas as its candidate, for a third-time opportunity. Both Fox and Cardenas sought to take advantage of the erosion of the social bases of the

166 Alberto J. Olvera, art. cit, p. 105. 167 Supra note 117. 168 Victor Manuel Reynoso, "El Partido Acci6n Nacional: i,La Oposici6n Hara Gobierno?", in RevistaMexicana de Sociologia 55(2), 1993, pp. 133-136. 169 Fox, lately, superimposed to the PAN obtained its presidential candidacy without many problems. Andreas Schedler, "Mexico's Victory. The Democratic Revelation", in Journal of Democracy 11(4), 2000, pp. 9-10. 170 Cardenas is the son of one of the most remembered and respected president of the modern history of Mexico, Lazaro Cardenas (see supra note 111). He and other prominent members of the PRI separated from it in 1987 due to the election of Carlos Salinas as the presidential candidate of the party. Cardenas became in 1988 the candidate of this former PRI group and of a whole leftist movement which included former communists, socialists, and social democrats, among others.

50 171 PRI, and used an anti-PRI strategy seeking to attract the "hesitant voters". The promise of "change", in this sense, was probably the most salient issue of Fox's presidential campaign, and the one with which the voters clearly identified. In the end, both the concept and the candidate generated an evident symbiosis: "Fox was 1T} change. Change was Fox". Moreover, Vicente Fox and his teammates designed and implemented an effective advertising strategy that "helped to favor the electoral setting by giving much greater visibility -and, in all probability, legitimacy- to the concept of change".173 But what exactly did Fox and the PAN mean by "change"? It is true that none of them made an explicit definition of the term "change", but it was somehow clear that this notion, as well as its associated arguments, were nourished from "an unremitting portrayal of the PRI era as one disaster after another".174 Change meant both to "throw out the PRI from Los Pinos" (echar al PRI de Los Pinos) and to introduce "a change without rupture and violence". In other words, it implied developing a new way of making politics with no place for all the negative elements associated to the ancien regime.11 The strategy followed by Fox in his campaign, in this context, emphasized the failures of the political system and the evils that it originated, promoted and used to retain power. In other words, his campaign was one against the corruption, clientelism, patronage and corporatism of the PRI, while using accountability, transparency and access to information, among other elements, as antidotes to those evils. On May 30, 2000, in the midst of the presidential campaigns, Fox presented his "Ten Commitments to Ensure the Transition to Democracy". In that 171 Ibid., pp. 11-12; Joseph L. Klesner, "The Structure of the Mexican Electorate: Social, Attitudinal, and Partisan Bases of Vicente Fox's Victory", in Jorge I. Dominguez and Chappel Lawson (eds.), Mexico's Pivotal Democratic Election, Stanford (California), Stanford University Press, 2004, pp. 97-101. 172 Kathleen Bruhn, "The Making of the Mexican President, 2000: Parties, Candidates and Campaing Strategy", in Jorge I. Dominguez and Chappel Lawson (eds.), op. cit., p. 142. 173 Roderic Ai Camp, "Citizen Attitudes toward Democracy and Vicente Fox's Victory in 2000", in Jorge I. Dominguez and Chappel Lawson (eds.), op. cit., p. 31. 114 Idem. 175 Vicente Fox, "Diez Compromisos de Campana", May 30, 2000. http://www.vicentefox.org.mx 176 Joseph L. Klesner, art. cit., p. 115. 177 Supra note 175. 178 Idem.

51 document, he promised to "democratize" the exercise of power in Mexico by encouraging an effective distribution of powers within the structures of the state, which meant, in his words, "promoting legal and constitutional reforms that establish clear limits to the faculties of the president of the Republic; guaranteeing the equilibrium and autonomy between the legislative, executive and judicial branches of government; and making effective both federalism and free municipality" (Commitment two).179 He promised that, if he became president, he would "put an end to the system of complicity and privileges [of the current regime], and fight against corruption without exceptions" but in a strict compliance with the law -not using the government as a weapon to take political and partisan revenge.180 He promised not only to reactivate the checks and balances that the Constitutional chart spoke about, but also to (re)construct the relationship between government and society; which means, in terms of the theoretical framework of this thesis, to promote vertical and horizontal accountability. Fox won the presidency on July 6 2000, and generated many social, political and economic expectations in the citizenry about the possibility of introducing an effective change in the regime.181 Precisely in this context, the Fox administration found in transparency and access to information a way not only to emphasise a break with the "past", but also as mode to gain legitimacy and credibility from society. They new administration considered probably, in the words of Flores- Macias and Lawson, that the "electoral competition has proven to be an inadequate instrument for holding government officials accountable to popular demands".182 For that reason the first PAN administration adopted a strategy that

179 Idem. "Promover reformas legales y constitucionales que acoten las facultades del Presidente de la Repiiblica; garanticen la autonomfa y el equilibrio entre los poderes legislative), ejecutivo y judicial; y hagan realidad el federalismo y el municipio libre". A definitive electoral reform will guarantee a fair and transparent electoral competence (Commitment ten). Moreover, he affirmed that Mexico needed a more inclusive society and a tolerant and respectful government that would not be involved in the private life of individuals, but instead it would be devoted to attend to the social and economic remnants of some sectors of the Mexican society. mIdem. 181 See, for example, the argument of Soledad Loaeza, "Vicente Fox's Presidential Style and the New Mexican Presidency", in Mexican Studies/Estudios Mexicanos 22(1), 2006, pp. 1-32. 182 Francisco Flores-Macias and Chappel Lawson, "Mexican Democracy and Its Discontents", in Review of Policy Research 23(2), 2006, pp. 287-293.

52 could effectively bridge the gap between government and citizens, using the concepts of accountability, transparency and access to information. It is possible to think that Fox had a conviction toward the necessity of implementing schemes that could promote accountability, transparency and access to information, framed within the ideology of the PAN. Democracy for Fox, in this context, did not mean only free, fair and competitive elections, but an expanded notion which entails governmental structures that attend effectively and efficiently, within the rule of law, to the citizens' needs. But the commitment of the Fox administration in those fields, in the establishment of mechanisms that could operationalize transparency and access to information, can also be seen as a way to gain legitimacy for the "government of change" -the nickname that Fox gave to his administration. In fact, transparency was a concept that permeated the discourse of Fox about establishing a "good and effective government": that would show a real commitment to solving the "lack of transparency and control over the public expending decisions"; that would constantly inform "the citizens [of] where the [public] resources are invested"; and that would give society other relevant information that could help it to evaluate the performance of the public administration.183 Transparency and access to information, in Fox's proposals, went hand in hand with the fight against corruption and with the promotion of accountability, and all of them were seen as necessary in the construction of both an efficient and democratic government.184 For Fox, transparency and access to information were seen both in procedural and substantive terms. On the one hand, he and his administration considered that the corruption of the political system and the lack of honesty of the public servants remained as the main diseases of the national administration, to which transparency and access to information would constitute the way to instill the values of efficiency and "morality" in the governmental work.185 On the other hand, the full and effective

http://www.vicentefox.org.mx/propuesta/de_gobiemo/poder.htm 184 "Decreto por el que se aprueba el programa sectorial denominado Programa Nacional de Combate a la Corrupci6n y Fomento a la Transparencia y el Desarrollo Administrative 2001- 2006", in Diario Oficial de la Federation, April 22,2002. 185 Idem. Fox linked the necessity of establishing moral values in the exercise of government. But which values will be taken into account for this purpose? He did not advance more this

53 institutionalization of those elements in a policy is itself the necessary aspiration of every democratic government.186 In his inauguration speech to the Congress of the Union in December 1, 2000, Fox promised to quickly send a legislative bill that would "guarantee transparency and accountability in the exercise of government, as mechanisms to deter corruption and fraud from the public structures".187 Developing changes in the institutional framework that promote transparency and accountability in the public structures not only has political and social connotations, it also affects the perceptions that citizens have of the government, particularly, at the federal level. In addition, according to Fox's National Development Plan 2001-2006,m transparency not only supposed generating trust among the population toward the public sector, its institutions and policies; it also implied promoting efficiency in the use of public resources, since citizens would have the capacity and the information to evaluate the performance of the governmental structures. There, Fox spoke about designing and implementing homogenous rules which would give access to the Federal Public Administration's information. All government actions should be, in this sense, known by the citizenry, sharing responsibility in the supervision of the government actions.189 What is more, Fox delineated in his PLANADE 2001-2006 elements about accountability, transparency and access to information that later materialized in the Transparency and Access to Information Federal bill of 2001.

Hence, the political liberalization experienced by the regime during the 1990s -which included the Carlos Salinas (1988-1994) and Ernesto Zedillo (1994-2000) governments- and the necessity of differentiating itself from the PRI

argument; but from what I have described in previous pages, this is not the first time that a government sought to "moralize" the public administration. Supra note 123. 186 "Dossier de la Instalaci6n de la Comisi6n Intersecretarial para la Transparencia y el combate a la Corrupci6n", Mexico, Presidencia de la Repiiblica, January 30th, 2001, http://fox.presidencia.gob.mx/actividades/?contenido=v421&imprimir==true. 187 Vicente Fox, Version Estenogrdfica del Mensaje del Licenciado Vicente Fox Quesada, durante la Sesion Solemne del H. Congreso de la Union, luego de Rendir la Protesta de Ley como Presidente Constitucional de los Estados Unidos Mexicanos, Mexico, Presidencia de la Repiiblica, 2000. 188 Vicente Fox, Plan Nacional de Desarrollo 2001-2006, Mexico, Poder Ejecutivo Federal, 2001. 189 AW., p. 30.

54 administrations and showing signs of this, pressed the Fox government to develop a clear strategy to develop a strategy to improve transparency and access to information in public institutions. The emphasis that the Fox administration and his National Action Party gave to the concept of "change" reflected precisely this view, and aimed to build its legitimacy and credibility on the basis of "constructing" a new relationship of the government with society and in the promotion of accountability across the political system and, principally, in the federal public administration.190

3.4 Final Considerations Transparency and access to information are relatively new topics in the Mexican politics that emerged as part of the governmental discourse of controlling, fighting and eliminating corruption in the 1970s. But the discourse and the factual objectives were not the same: the federal government embarked in the implementation of such policies basically to recover credibility for ruling elite from the citizenry.191 That is to say, the regime under the PRI promoted those policies seeking to retain power, and to avoid the political transition by employing its corporatist strategies. However, in the long run the policies created a gradual and increasing demand for accountability, and therefore, for transparency and access to governmental information. The lack of response from the regime not only increased the skepticism of the citizenry about the commitment of politicians to address these issues, but helped to maintain in the collective imaginary the idea of extensive corruption in government. Fox's presidential campaign was clearly fought against the evils of the former authoritarian system. His initial discourse seemed to be not very different from the argumentative lines presented by those that preceded him in the presidency. The context of the Fox administration was, however, radically different from the one that faced Miguel de la Madrid: the PRI was not now in Los Pinos and the

The approval of Transparency and Access to Information Act in June 2002 reflects, to some extent, its compromise toward the establishment a more accountable system. 191 Cfr. Stephen D. Morris, art. cit, pp. 623-628. 192 Stephen D. Morris, "Corruption and the Mexican Political Culture", art. cit., p. 671-672.

55 new government needed urgently to establish clear differences toward the ancien regime. These two elements constituted the decisive variables that explain why the Fox administration sought to develop a comprehensive strategy to deal with corruption, while, at the same time, transparency and access to information were used as the instruments that would help the new government in this journey. Moreover, the anticorruption policies implemented by Fox were intended to differentiate the PAN government from the PRI-regime, in other words, to create a "new Federal Administration" based on the values of "honesty, transparency, effectiveness and accountability". The Fox administration, in this context, was aware of a constant critique of Mexican politics -the lack of mechanisms to enforce effective systems accountability and promote checks and balances within the government- and tried take advantage of the transitional moment.194 Therefore, the democratization process is clearly linked not only to the establishment of free, fair and competitive elections, but the consolidation of this form of government passes through the eradication of those elements that challenge it: "in principle, democratization should enhance the transparency of policy making and the accountability of politicians and bureaucrats, thereby limiting the spread of corruption".195 In other words, deepening democracy in a country requires strengthening the institutions of the state and establishing a commitment toward the rule of law. "The fate of democracy depends heavily on issues of democratic accountability and on the prospects for deepening democracy in the face of such fundamental problems as state weakness, the ineffective rule of law, and socioeconomic inequality".196

Vicente Fox, "Palabras del Presidente Vicente Fox Quesada durante la Ceremonia Conmemorativa del 30 Aniversario del Fondo de Fomento y Garantia para el Consumo de los Trabajadores, que Tuvo Lugar en el Edificio Corporativo del Propio FONACOT, en esta ciudad", Mexico, Sistema Internet de Presidencia, April 24, 2004. http://fox.presidencia.gob.mx/actividades/?contenido=8020 194 See Guillermo O'Donnell, "Horizontal Accountability in New Democracies", art. cit; and Catalina Smulovitz and Enrique Peruzzotti, art. cit. 195 Kurt Weyland, "The Politics of Corruption in Latin America", in Journal of Democracy 9(2), 1998, p. 108. 196 Mathurin C. Houngnikpo, "Holding Democracy Accountable in Latin America", in International Studies Review 6(3), 2004, p. 489. The challenges of democracy and the obstacles that have faced in the region has been summarized by Guillermo O'Donnell, "Illusions about Consolidation", in Journal of Democracy 7(2), 1996, pp. 34-51; and Andreas Schedler, "What is Democratic Consolidation", in Journal of Democracy 9(2), 1998, pp. 91-107.

56 In a democracy it is not only necessary to guarantee access to governmental information -information that is public in its origin- by embracing it as Constitutional right, but also to have clarity on the procedures that will allow individuals to access that information. Indeed, a normative structure is required to specify the steps that any government has to follow in order to attend to information requests. What is more, making transparency and access to governmental information effective in any place requires a clear set of rules that explain how it will be released, and what will be the limits of access to information and transparency. Nevertheless, the norms that regulate access to public information need to be clear enough to prevent the abuse of those exemptions in an effort to override the right to information of the citizens. In this context, Mexico adopted a norm on transparency and access to information in 2002. The purpose of the next section is precisely to analyze how Mexico arrived to the adoption of a law on transparency and access to information by analyzing the key aspects of the bills that were presented in Congress on those subject-matters.

4. BUILDING TRANSPARENCY AND ACCESS TO INFORMATION IN MEXICO The end of PRI-regime at the federal level pressed for a change in the relationship between governmental structures and society. The new party in power -the PAN- and president Fox felt it was necessary to build bridges between society and governmental structures, and to promote mechanisms that allow citizens to examine the way in which public policies have been developed, designed and implemented. These elements, in fact, were part of the critiques made by the opposition during the PRI era: the opacity of the mechanisms of decision-making

These limits can be first, the dignity and private life of individuals -its personal data- is at stake; and second, the integrity of the political institutions, the national or public security in a territory, and the rule of law. However, the analysis of limits of access to information are beyond the scope of this research. See the "Introduction" and "Comparative Analysis" chapters of Herke Kranenborg and Wim Voermans, op. cit., pp. 3-8 and 9-30.

57 of policies, the employment of public resources and the effectiveness of government s actions. The concept of change emerged as a critical concept during the political transition at the federal level in 2000 and was operationalized in many concrete policies, as explained before. In the accountability field, the Fox administration and its discourse materialized in the enactment of anticorruption policies that sought to promote accountability, transparency, access to information in the federal public sector.199 The objective of the new federal administration was to transform the public sector, as Fox argued, in "glass case, in which absolutely everything officials do would be laid open to public view".200 Fox promised during his presidential campaign to promote in the federal Congress a law which makes effective the right to information of Article 6 of the Constitution. He and other members of the Chamber of Deputies sent bills on that matter. In 2002, it was approved the Transparency and Access to Governmental Information Federal Law (LFTAIPG, Ley Federal de Transparencia y Acceso a la Informacion Publica Gubernamental), a law that have changed the relationship between the government and the citizens. To understand the role, characteristics and functions of Mexico's it is necessary first to comprehend its origins. This chapter will analyze chronologically the bills presented in 2001 on transparency and access to information. In the last section of this chapter, I will explain how those three bills influenced the final configuration of LFTAIPG.201 In this context, the objective of the last chapter of this research will be to analyze key aspects of

Cfr. Ana Bellver and Daniel Kaufmann, Transparenting Transparency: Initial Empirics and Policy Applications, Washington, D.C., World Bank (Policy Research Working Paper), 2005, p. 14. 199 See Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age, Cambridge, Cambridge University Press, 2006, p. 6. Indeed, But many actors also get in the train of those topics and sought to take advantage of the political juncture. 200 Vicente Fox, "Entrevista que concedi6 el Presidente Vicente Fox Quesada a Grupo MG Radio de San Luis Potosi", October 4, 2005, http://fox.presidencia.gob.mx/actividades/?contenido=21271. The texts of the three bills were obtained fromth e Internet page federal Chamber of Deputies (Cdmara de Diputados del Honorable Congreso de la Union, http://www.cddhcu.gob.mx/). Since the on-line links are not paginated, I will only make division between the "statement of motives" and the "normative section" of the proposal. The information of the first will be referred to the paragraphs; but in the normative section, I will precise the article of the proposal from which the argument will be taken.

58 the three bills on transparency and access to information presented between July and December 2001 in the Chamber of Deputies. It is impossible to analyze thoroughly here the whole content of the three bills presented. For that reason, I will focus only in those elements that I consider helpful to understand the logic and main characteristics of those legal proposals: 1. What are the main objectives of those bills and their diagnoses about the Mexican political system and its bureaucratic structure? 2. In which terms the concepts of transparency and access to information are defined?202 3. How comprehensive are the bills in terms of the institutions covered by the principles of transparency and access to information? 4. Which are the main contradictions in the bills that would have prevented the exercise of the right to information and the promotion of transparency?

4.1 The PRD's Alternative: Transparency in the Federal Public Administration Even though this had been central to Fox's campaign, the first proposal on transparency and access to information actually was presented to the legislature on July 11, 2001, by the PRD-congressmen Luis Miguel Barbosa Huerta. This document constitutes the personal views of the deputy, that is to say, it does not represent the position of the party that he belongs to -the Democratic Revolution Party. The Barbosa's bill, as well as the other two documents that will be analyzed in the next pages, is organized in a traditional way: first, the statement of motives; and secondly, the legal proposal. In the statement of motives he presents the eight principles that guide his bill: A) "maximum disclosure" of the governmental information; B) "publication obligation", by which the public structures are forced to inform about its actions; C) "clearly-defined and limited

In other words, how did they frame their proposals if we link them to the theoretical framework of the first part of this project? 203 «pr0yect0 (je Ley de Acceso a la Informaci6n Relacionada con los Actos Administrativos y de Gobierno del Poder Ejecutivo de la Union", in Gaceta Parlamentaria de la Cdmara de Diputados 792, July 16, 2001. Henceforth, I will refer this document as the "Barbosa's Proposal", following also the parameter established in note 201.

59 exceptions" to restrict access to information; D) "no-cost access and minimum formality", the government has provide the information without asking the citizens to pay for it, and should enhance the adoption of simple mechanisms to give access to governmental data and documents; E) "easy access", clarity in the access to information procedures established by the public institutions; F) "prevailing of the notion of publicity of governmental information" over the exceptions; G) "free-flow of the information disclosed", and no sanction when individuals or the media reveal illicit conducts of public servants.204

4.1.1 Objective and Main Arguments of the Proposal The Barbosa's bill recognizes that the absence of a norm that regulates the right of information of the Article 6 of the Constitution has allowed the "arbitrary" and "discretional" attitudes of the "public authorities in the management of the governmental information".205 For Barbosa, the Mexican normative framework - as was explained in section 2.2-206, developed some rules that oblige the government to inform about its activities; but those norms lack of coherence and organization, since they are dispersed and were applied casuistically. According to the PRD deputy, the "right to petition" -the right to ask information to the government- was limited because it was inexistent and there was no regulation that could make it effective, and no mechanisms to sanction public officials that refused or ignored citizens' information requests, even in the presence of a constitutional privilege. For Barbosa, free, fair and competitive elections are important in the establishment of a democracy (one where citizens can elect freely their representatives -those individuals in charge of the governmental duties), but it also implies "a system of accountability, where the immediate objective should be to enhance the capacity of civil society to control the acts of government through the right to information". 07 In this sense, by giving citizens full access to the

Statement of Motives, Barbosa's Proposal, supra note 203, paragraphs 32-48. Ibid., paragraph 7. See the arguments presented in section 2.3 of this research. Ibid., paragraph 2.

60 governmental data, government structures became more "transparent"; in other words, transparency became a no more than a consequence of enforcing the right to information. The element of transparency is a secondary element in this bill, and a positive aspiration of a democratic system or rule. In the view of the author, the introduction of procedures to give citizens access to government's information will promote accountability in the public sector since it will allow indirectly the participation of the citizenry in the processes of design, implementation and evaluation of governmental policies. In sum, the objective of this proposal was "to institutionalize the right to [access] information in hands of the public entities of the Executive branch as one of bases of our representative democracy"; second, "to provoke the openness, making transparent, the state's activities"; and third, "to correct the hiding schemes used by the regime to hide the deviations that have occurred in the exercise of political power".208 That is to say, this bill constitutes both an end and a mean: in a teleological sense, it materializes the right to information at the federal level in Mexico; and instrumentally, it helps to operationalize access to governmental information, giving citizens tools to control public servants and to improve transparency in the structures of rule. In his words, "to develop civil society and citizenship's right to access and participate in governmental management to generate, then, transparency in the public structures".209 At the end, giving access to public information should help to recover the confidence and credibility of the citizenry toward the government.210 This would help in the consolidation of the Mexican democracy.

4.1.2 Definitions of Transparency and Access to Information As it was referred above, transparency is a subsidiary element of the Barbosa's text, present only in the statement of motives, and completely absent from the normative section. Transparency is presented as a consequence of making

208 Ibid., paragraph 11. 209 Ibid., paragraph 12. 210 Ibid., paragraph 25.

61 effective the right to information, and more concrete, by giving access to governmental information; that is to say, a quality by which it is possible to measure the readiness of the public structures toward the instrumentation of that civil entitlement. The core elements that guide his proposal are the concept of information and the notion of publicity of the governmental documents and data. However, in this field it is possible to find a gap between the statement of motives and the legal propositions of the document. He explains in the justification section what he understands by information: "all the registers in power of the public institutions, regardless the form in which it is archived (in paper, magnetic or electronic instruments, etc.), its origin (produced by public offices or others), and the time in 911 which it was created". However, this view is not fully developed in the legal structure of the bill. Moreover, there is no article devoted to explain what will be understood as "information". Along the text, there are only isolated references about this notion. By doing this, Barbosa concedes that information is indeed a multifaceted concept, which comprises: first, the data used by the federal government to develop policies, what Barbosa refers as "the official sources of information" (Article l)212; second, the "acts and files of the public administration" (Article 2); third, the norms that give origin to its functions (Article 11); fourth, the services provided to the citizenry and the inner procedures of public structures on its day-to-day work (Article 12); fifth, the norms that the government pretend to adopt before its expedition, in order to be previously analyzed and commented by citizens (Article 14); and sixth, a "succinct report" about the "development of its functions" that includes, among other aspects, the fulfillment of its annual objectives and goals, the problems faced in its work during the previous year, the economic resources assigned and the way in which they were used, and the contracts signed to acquire object or services by specifying some aspects of these agreements (Article 13).

211 Ibid., paragraph 32. 212 Normative Section, Barbosa's Proposal, supra note 203. In the next pages, I will put in text the articles of the proposal that support my argument.

62 For Barbosa the federal public administration not only has to make public its archives, but also has to create other documents that could explain to the citizenry how the public structures are functioning. In other words, aside from ambiguity of the concept of information, the scheme suggested by congressman makes a clear distinction between the information that should be made available to citizens without any request -which is basically that one mentioned in the "chapter three" 91 ^ of this proposal -, and the one that it is specifically asked by citizens.

4.1.3 Comprehensiveness: Structures Covered by the Bill The objective of the Barbosa's proposal was to regulate the mechanisms by which individuals and organizations could access the information in the Executive branch of the government at the federal level (Article 1). As will be shown in the next pages, this proposal constitutes by itself the most restrictive of the three bills in this aspect. There is no explicit reference of why Barbosa restricted the influence of his proposal only to one of the branches of government. It is possible to infer that because the federal public administration had been the main protagonist in the Mexican political system due its hyper presidentialism.214 As I have explained in chapter 2, the federal public administration is the one that has concentrated most of the functions and resources of the State, and, consequently, the one in which corruption spread extensively.215 But focusing only in the role of the Executive branch left behind two key structures that were also part of the discretionary circle of the governmental structures and in which corruption has

91 ft proved to be extremely critical: the Congress and the Judiciary. If politicians have to be closer to citizens, why, in this context, does the proposal not include the Legislative branch? If corruption needs to be attacked and the rule of law enforced, why was the right to information not expanded to the Judiciary?

213Articleslltol5./te£ 214 Chappell Lawson, "Mexico's Unfinished Transition: Democratization and Authoritarian Enclaves in Mexico, art. cit, pp. 268. 215 Cfr. Stephen D. Morris, "Corruption and the Mexican Political Culture", art. cit., pp. 697- 699. 216 See Anne Deysine, "Political Corruption: A Review of Literature", in European Journal of Political Research 8 (4), 1980, pp. 447-462.

63 Moreover, the bill left in the limbo a number of important companies in which the State is the principal shareholder. Strictly speaking, they do not belong to the federal public administration, since they have certain degree of autonomy and are both in public and private hands, but the principle of publicity entails that citizens have the right to be informed not only of the way in which the governmental structures spend the public resources, but also how they access to those resources. What is more, the three federal autonomous organisms of the state (the Bank of Mexico (Banco de Mexico), the Federal Electoral Institute (Instituto Federal Electoral), and the National Commission of Human Rights (Comision Nacional de Derechos Humanos) were also excluded, limiting the capacity of citizens to evaluate its performance by means of accessing to their information.

4.1.4 Contradictions in the Bill Some of the contradictions and problems of this bill were already explained. Firstly, it is clear that the absence of clarity in some of definitions employed in this legal initiative, run against the right to information. Secondly, circumscribing this right to only one area of the government limits the capacity of the citizenry to evaluate the functioning of the political system as a whole. Nevertheless, a contradictory argument can be found in Article 10 of this proposal. Here, Barbosa appeals to the logic of division of powers by giving to the Congress of the Union the capacity to oversee work of the federal public administration in the exact application of the mechanisms in the law to reserve information. The chambers of the Congress will do this, in Barbosa's scheme, in "secret sessions". Seems contradictory, in this sense, the inclusion -in a norm that will promote access to information and, consequently, transparency and accountability in the federal government- of a procedure based on secrecy, an element that, in his words, have promoted "the abuses of power, the violation of human rights and illegality". If the objective is to deter arbitrary actions from the day-to-day operation of the public institutions, it is necessary to promote the

Statement of Motives, Barbosa's Proposal, paragraph 3.

64 implementation of mechanisms that also make transparent the decisions that involve the exceptions to the right of information. A somewhat problematic aspect in the Barbosa's proposal is the role of the institution that will supervise the correct application of this right and the duties assigned. According to the congressmen, the National Commission of Human Rights (CNHD, Comision Nacional de los Derechos Humanos) will be the institution that will guarantee this right.218 The logic behind this proposition is that the right to access governmental information is itself a "human right".219 In this context, this right must be protected by the institution that has the responsibility of watching for respecting and defending the dignity of all individuals vis-a-vis the State and under the rule of the federal chart. The CNDH perfectly fits in this argument, but two elements speak against the capacity of this structure to protect effectively the right to information: on the one hand, the decisions adopted by the CNDH have a non-binding character; that is to say, the Commission only emits opinions and recommendations when human rights are violated by public entities. On the other hand, CNDH does not have the capacity to make any commentary about jurisdictional process. That is to say, the CNDH is not allowed to complain about the way in which a judicial process was carried out. In sum, the CNDH cannot fully protect the right to information since it does not have the legal means to fulfill the duties and responsibilities assigned in the bill of the PRD congressmen.

This autonomous entity was created by a reform to the Article 102 of the federal Constitution in 1992. "The Congress of the Union and the legislatures of the States in the areas of their respective jurisdictions will establish organisms of Human Rights that will help the Mexican judicial order, that will become familiar with complaints against the acts or omissions of administrative nature provided by any authority or public servant, with the exception of those of the Judicial Power of the Federation, that violate these rights... The organism that the Congress of the Union establishes will be known as the National Commission of Human Rights, and will have autonomy of management and budgeting, juridical personality, and its own property... The organism will make independent public recommendations which are non-binding, and denunciations and complaints to respective authorities. This organism will not have jurisdiction in areas of electoral, labor, and legal affairs". "Decreto que Reforma el Articulo 102 de la Constituci6n Politica de los Estados Unidos Mexicanos", published in the Diario Oficial de la Federation, January 28, 1992. 219 Although there is no explicit reference in this proposal to the Universal Declaration of Human Rights, most of the arguments developed in the statement of motives are founded in that document. See the section 1.2 of this research.

65 4.2 Fox's Proposal: Formalizing Transparency and Access to Information On November 30, 2001, Vicente Fox sent to the Chamber of Deputies his Transparency and Access to Information bill, trying to fulfill the promised that he made months before during his presidential campaign.220 This proposal is more ambitious than one of Barbosa, in the sense it is more comprehensive in terms of institutions covered, and clearer in the definitions used to operationalize the notions of both access to information and transparency. Moreover, the Fox administration give much more weight to the issue of transparency in its bill in contrast to the Barbosa's document.

4.2.1 Objective and Tools of the Proposal For President Fox the bill that he submitted to the national Congress not only constituted a "fundamental component of the Reform of the State project", but also the result of a "historical] process that call for promoting out the necessary legislative reforms directed to strengthen" the institutions of the State. The necessity of promoting access to information and transparency in the government results from the process of democratization experienced by the country, a process in which citizens demand openness from the political authorities and the 999 regime. Transparency and access to information, in this sense, merge as two mechanisms, that could help to develop effective schemes that enhance accountability within public servants, efficiency in the government, and, consequently, to deter corruption and illegality In the statement of motives of his bill, Fox calls for making effective (operationalized) the provisions of Articles 6 and 8 of the federal Constitution, which established the obligation of the State to guarantee the right of citizens to accede governmental information and the right of petition.223 In this sense, the

"Del Ejecutivo Federal, de la Ley Federal de Transparencia y Acceso a la Informaci6n", in Gaceta Parlamentaria de la Cdmara de Diputados 892, December 4, 2001. From now on, this document will be referred as the "Fox Proposal", and will be followed the distinction commented in note 4. 221 Statement of Motives, Fox Proposal, supra note 220, paragraph 5. 222 Ibid., paragraph, 7. 223 Ibid., paragraph, 12. The Fox administration agreed that the absence of regulatory mechanisms in this field constitutes a key element that explains why the right of information

66 Fox's administration apparently sought both to attend a legal mandate that the previous administrations have dismissed, and at the same time to frame this demand as part of the juncture of the "political transition" that he led at the 2000. Aside from being a mechanism to control over the actions of public servants and the economic, material and human resources assigned to the government, transparency and access to information are also necessary elements for the promotion of confidence in the governmental activities and, therefore, to generate trust within the ruled. For that reason, the bill itself is seen as part of a gradual process of change and liberalization in the political system in the accountability field.224 A free and confident flow of information has not only positive consequences in the political and social arena since it will help to bridge the gap between government and citizens, but also, according to the Fox administration, to generate confidence (certainty) in those that seek to invest economic resources in the country. In its view, transparency and access to information help both in the consolidation of democracy -which is seen not only as free, fair and competitive elections, but in an expanded notion as was discussed in section 2.3-, but as elements that strengthen and reinforce the rule of law.

4.2.2 Definitions of Transparency and Access to Information The bill of Vicente Fox assumes the principle of publicity at its forefront by arguing that all the information in power of the governmental offices is inherently public (Articles 2 and 6), with the restrictions that are offered in chapter III of the normative section of the proposal.225 Information, in this sense, is defined as "the one contained in the administrative documents that the obliged subjects22 generate, obtain, acquire, transform or conserve by means of any title" (Article 3,

established in the Constitution was actually ineffective. In this context, the Transparency and Access to Information bill that Fox sent to Congress sought to correct this vacuum in the Mexican normative framework. Ibid., paragraph 13-16. 224 Ibid., paragraph, 13. 225 Normative Section, Fox Proposal, supra note 220. Article 6 establishes that "In the interpretation of this Law, it will prevail the principle of publicity of the information". The term refers to all the governmental structures that are obliged because of the law to make public its information; in Spanish, sujetos obligados.

67 Fraction VII). And the term "documents" comprises a vast number of electronic and paper-based systems to archive data, as well as the sources of this information, and the time in which was processed (this argument is widely developed in Fraction V of Article 3). The argument developed by the Fox administration in this field has three components: first, it is necessary to determine which governmental institutions will be covered by the law. Second, the notion of information that is applied in this document is a temporal, in the sense that all the information in hands of the government (past, present and future) is subject to the law. It constitutes a relevant aspect because during his presidential campaign Fox repeatedly insisted in opening the archives of the "dirty war" against the guerrillas and the political persecutions of the PRI-regime. And third, the proposal distinguishes between documents and their content. The content itself is what the Fox administration understands as "the public information". The next pages will concentrate precisely in the last point, in understanding the strengths and weaknesses of the notions of public information used by the Fox administration and the processes that the bill developed to make effective the access to governmental documents and data. "Access to information", according to this document, is a right in itself. But the normative section of the proposal makes no-explicit link to the Constitution, despite the fact that the statement of motives conceives the law in this bill as one that regulates the right of governmental information and the right of petition contained in the Charter. Those that can use this law to access the "public information" are private individuals or moral persons are allowed: individuals

227 "Files, reports, studies, acts, resolutions, memos, correspondence, agreements, directives, orders, communica-tions, contracts, accords, treaties, settlements, informative texts, notes, statistics or any other register that support the exercise of the faculties or activities" of the institutions covered by the proposal, and regardless "the date of elaboration" or "its source", or the format (electronic, written, printed, sonorous, visual, holographic or any other information technology). Normative Section, Fox Proposal, Article 3, Fraction V. 228 During the 1960s and 1970s the federal government was involved in a low-profile war against many guerrilla movements in the country. But the strategy followed by the federation to combat guerrilla implied the constant violation of civil and human rights. This constitutes the "dirty war" ("la guerra sucia"). Moreover, the political system was characterized by persecuting those who were considered the "enemies" of the political system. Christophe Leroy, "Mexican Intelligence at Crossroads", in SAIS Review 24(1), 2004, p. 107-108.

68 must have Mexican citizenship and moral persons -a permanent residence in the country- to use this law. Access to information is therefore not universal right itself but one that can be exercised only by those that contribute to the public treasury. Transparency, by its part, has different connotations in both the statement of motives and the normative section. In the former, it is conceptualized as a "quality" of the government linked to the openness shown by the government in proving access to its archives. Transparency means also knowledge in the sense that makes individuals capable of understanding whether and how the public structures are fulfilling their duties. In the normative section, however, the notion was operationalized in a different way. Chapter II of the proposal was named "Transparency Obligations", and it refers to seventeen subject-matters that the

99Q whole obliged institutions have to make public and its content updated. In this sense, transparency means giving the very basic information about the structures, role and characteristics of the public institutions; that is to say, this section of the document uses a diminished notion of the term. The catalog left aside, for example, a listing of the programs and projects of the federal government, as well as its objectives and inner functioning. This is a critical element that was dismissed, in this notion of transparency. Finally, -it is also associated to the free circulation of information. In this sense, it is clear that transparency, in contrast to access to information, has different meanings and connotations, depending on the context and to the notions used in the proposal. Transparency and access to information can have

1. Structure; 2. Faculties; 3. Directory; 4. Public servants salaries (base-payment and extraordinary compensations); 5. Address of transparency offices that all institutions have to create; 6. Goals and objectives of the administrative units of the institutions; 7. Services offered; 8. Procedures, requisites and formats of the institutions; 9. Assigned budget per year and execution; 10. Auditing procedures; 11. Design, execution and resources assigned and access criteria to subsidy programs; 12. Concessions, permissions or authorizations granted to private persons; 13. Contracts signed by the public institutions with other private or public institutions or individuals; 14. Normative framework of the organizations; 15. Reports generated according to the law; 16. Mechanisms that allow the participation of citizens; 17. Other information considered important, based on frequently asked questions. Normative Section, Fox Proposal, Article 8, Fractions I- XVII.

69 procedural and substantive sides that not necessarily converge. Procedural in the sense it was associated to the diffusion of certain data of the government's functioning and organization (such as the transparency obligations). In procedural terms, transparency is also an aspiration of an "honest" and "responsible" administration; a sort of dependent variable of giving access to governmental information, since one of the objectives of the law is "to make transparent public management by means of the diffusion of the information generated" by public institutions.

4.2.3 Comprehensiveness: Structures Covered by the Bill Article 1 of the normative section determines the institutions that will be subject to this law: "The present Law if of public application. It has the finality to guarantee the access of all persons to the information possessed by the Powers of the Union, the autonomous constitutional organs or those with legal autonomy, and every other federal entity [...] as well as those organizations of public interest and every person that receive public federal resources" (Article 1). First of all, it is clear that the bill of Vicente Fox expanded the number of institutions that will be subject of this law -as opposed to the Barbosa's proposal-, to all those organizations that receive and use resources from the federal government, political parties included (Article 12). But this bill regulates primarily the access to the information of the federal public administration, while leaving to the other structures of the federal government (legislative, judiciary, autonomous organizations and institutions of public interest) the capacity to determine their own schemes in this matter. This aspect could create disparities in the quality and quantity of the information provided by the branches and institutions that compose the federal government, since the rules to give access to governmental information will not be homogenous. Fox, in this context, did not want to impose on the other branches of

230 However, since there is no federal norm that regulates the organization and protection of personal data in the governmental archives, the Fox's bill devotes a whole section to this issue (Chapter IV, Articles 22-28), but the proposal recognizes the necessity to improving this section or enlarging the "habeas data" norms by enacting a more comprehensive legal framework in this matter. Statement of Motives, Fox Proposal, paragraph 30.

70 government, autonomous institutions and others a unique formula; probably, as a way to respect the division of powers and because of the strength and importance acquired by that structures in the political system within the political liberalization experienced by the country.

4.2.4 Contradictions in the Bill A critical aspect that runs against the principle of publicity defended in this bill is the content of Article 29, where the federal government delimits the "costs" that citizens have to pay to get the information they requested. This article establishes: "the costs to obtain the information [requested] will not be more than the sum of: the value of the search, which means the time employed by the personal in the administrative unit where the information requested can be found (salaries per hour); the cost of the materials used to reproduce the information asked; and the cost of sending the information to the requester. If the law, as established in its Article 1, seeks to give "access to all individuals" of the information of whole structure of the federal government, it would be necessary to develop mechanisms that would effectively guarantee this principle. It is possible to think that the introduction of this argument has probably the objective of deterring frivolous requests of information. Nevertheless, it is true than under those circumstances, only people that are better off can afford the costs of making use of this right, limiting the notion of Article 29 of the bill about the "democratization"231 of the right, and nullifying the principle of publicity of governmental information.232 Moreover, the contradiction here bases in the fact that the governmental information is produced with resources that are inherently public, such as taxes and the profits from the sell of petroleum. Why then should individuals pay twice for information requested, firstly, by means of taxes; and secondly, when the data is requested by the citizenry following the procedures established in the proposal? The bill of Fox has no answer in this field, since an explanation about this topic is completely absent in the statement of motives.

1 Statement of Motives, Fox Proposal, paragraph 11. 2 Bernard I. Finel and Kristin M. Lord, art. cit, p. 316.

71 The second aspect that limits the effective application of right to access governmental information resides in the institution that this bill creates in order to supervise the execution of the law: the Commission of Information Guarantees (Comision de Garantias de la Information). This organization would have jurisdiction in the federal public administration. But, moreover, this Commission was conceived as a structure of the public sector headed by a council of three persons named by the president of the Republic. This place the Commission in a contradictory position, since it would to be both judge and jury in the process of securing the right of citizens to access governmental information, and questions the independence of the institution in guaranteeing effective the right to access governmental data and documents. On the one hand, the members of the Commission would be responsible basically to the president and prone to support the decisions of the federal public institutions; that is to say, the impartiality of the members of the Commission will always be in doubt and contested by the lack of support of other political actors. On the other hand, reducing the authority of the Commission to the Executive branch also limits the capacity of promoting homogenously access to information and transparency in the whole federal government: citizens will face different procedures to access governmental information not only within branches of government and autonomous organs, but also the mechanisms to defend their right against public institutions.

4.3 Building Bridges in the Opposition: PRI, PRD, PT and Convergencia's Proposal On December 6, 2001, deputies from the opposition parties presented to Congress a Federal bill designed to provide greater access to public information. This project was probably the most comprehensive of the three proposals presented which addressed transparency and access to information. Of the twelve deputies that signed the bill, nine belonged to the PRI, one to the PRD, one to the PT and

233 "De la Ley Federal de Acceso a la Informaci6n, Presentada por Diputados y Diputadas de Diversos Grupos Parlamentarios Representados en la Camara de Diputados", in Gaceta Parlamentaria de la Camara de Diputados 895, December 7, 2001. From now on, this document will be referred as the "Opposition's Proposal", and will be followed the distinction commented in note 4.

72 one to Convergencia. The bill, according to the statement of motives, not only received the support of the deputies that signed it, but it was also backed by the parliamentary groups to which they belonged to, that is to say, by 270 deputies (54% of the total members of the Lower Chamber).234 This meant that the third legislative initiative on transparency and access to information submitted to the legislative assembly was actually the result of a consensus reached by five of the seven opposition parties in the Chamber of Deputies.

4.3.1 Objective and Tools of the Proposal Why did the proposal gain the consensus of four parliamentary groups? As was stated in section 2.3, this legislative proposal did not emerge from the Congress seats; on the contrary, the document was primarily developed by the Grupo Oaxaca.236 This explains why this bill is probably the most comprehensive and "ambitious" of all the three initiatives: it openly reflects the positions of civil society, since Grupo Oaxaca represented wide sectors of the latter. The opposition parties assumed the compromise of supporting the bill in Congress, probably in an effort to (re)gain credibility with these civil organized groups, and to assume a common standing toward the subject-matters of transparency and access to information. The proposal has the support of four parliamentary groups in the lower Chamber, which creates a complicated panorama for the analysis of the

The data was obtained from the deputies' attendance list on the day that the bill was presented in the Chamber of Deputies. The PRI had by that day 209 seats; the PRD, 52; the PT, 8; and Convergencia, 1. Gaceta Parlamentaria de la Cdmara de Diputados 892, December 6, 2001. 235 In addition to the parties in the Congress referred in the previous footnote, are the National Action Party, the Social Alliance Party, and the Nationalist Society Party. 236 Juan Francisco Escobedo, "Movilizaci6n de Opini6ri Publica en M6xico: El Caso del Grupo Oaxaca y la Ley Federal de Acceso a la Informaci6n", in Revista de Derecho Comparado de la Information Num. 2, 2003, p. 71. In May of 2000, in the city of Oaxaca, was held the national seminar "Right to Information and Democratic Reform", which was organized by several actors, including universities, national associations of newspapers and journalists, and national and international foundations. After that meeting, according to Juan Francisco Escobedo, most of the organizers and participants of that event agreed to influence the public opinion toward the necessity of adopting a bill that guarantee the right to access governmental (public) information As a result, they constitute what lately was called Grupo Oaxaca (Oaxaca's Group), and whose first and principal objective was developing a bill on transparency and access to information at the federal level. 237 Statement of Motives, Opposition proposal, supra note 233, paragraph 4. 238 Ibid., paragraph 6.

73 document: since it would be possible to examine the text examining to the arguments presented by each party in Congress toward the transparency and access to information law. Nevertheless, I believe that it is necessary to transcend the partisan argument in order to concentrate on the overarching elements that characterize the proposal. The Opposition's proposal sought to regulate the right of information included in Article 6 of the federal Constitution (Article 1). The bill is seen -as is Fox's proposal- as the product of a long process of political reform.239 This was a process/that started in 1977,240 but in which the topic of access to information was clearly dismissed. The bill recognized that a regulation in this field should have been submitted immediately after the constitutional reform to Article 6 of that year, and should not have waited until the political transition at the federal level.241 Moreover, the proposal assumed that the political institutions need to attend the "new institutional scenario where the ruled acquire new liberties, more rights and juridical certainties toward the authority", as well as the end of the "informative gifts" of the public authorities, which make public only what they consider was necessary to notify -what they consider "information".242 Thus, the proposal sought to address a legislative vacuum, to promote responsiveness and to deter secrecy, discretionality, arbitrariness, and corruption in the federal government243 by using access to information as its prime mechanism. What is more, access to information constitutes the cornerstone of accountability, the base of a democratic system. Information is a necessary tool to give citizens the capacity to evaluate the performance of all public institutions and to fully exercise other civil, social and political rights.

"After 24 years, and seizing the opportunity the set of legal reforms and political changes experienced by the country during the last years". Ibid., paragraph 2. For the deputies that signed the document, this law is part of the reform process initiated in 1977 during the administration of Jose" L6pez Portillo (1976-1982), which, as was explained in section 2.1, sought to modernize and democratize the political organizations and governmental institutions in the aim to legitimate the regime. See Stephen Fidler, art. cit, p. 714. 241 Statement of Motives, Opposition proposal, paragraph 4. 242 Ibid:, paragraph 5. 243 Ibid, paragraph 17.

74 4.3.2 Definitions of Transparency and Access to Information The bill, as its name indicates, is about access to information, defined as a constitutional right that should be guaranteed by the State. But transparency in this text, as in Barbosa's proposal, remains marginal element: transparency is understood as a product of giving access to governmental information. That is to say, transparency is a characteristic of the ruling institutions that derive from the implementation of access to information, a by-product of enhancing this right - but also a secondary objective at least in this proposal.244 The locus of this document is, for that reason, in the notions of information and the procedures that have to be established to make effective the right to accede to governmental documents and registries. The Opposition proposal's starting point is the publicity of the whole data and archives of the government: "All the information created, administrated or in possession of the organisms mentioned by this Law will be considered a public good, accessible to every person in the terms determined by the present Law" (Article 3). And later, this notion is expanded, arguing that information is also "the documentation generated and elaborated, partially or totally charged to the treasury, which has been used for both governmental discussions and during the decision-taking process in the exercise of the public function" (Article 9, paragraph 4). Three aspects should be highlighted from these phrases: first, in contrast with the Fox's bill, the Opposition's proposal makes no distinction between the content of the documents and the documents themselves (regardless its format). Second, the data and documents in power of the government, independently of the place and date in which was produced, will be made public with this law. And third, the law makes a link between governmental information and public funds, arguing that if at any point of time any decision involve resources from the federal government that makes this decision subject of public or citizens scrutiny. A final and important aspect is that this proposal also obliges all the institutions that will be covered by this law to draw a minute of every meeting organized to discuss and adopt "public decisions" (Article 9, paragraph

75 3). Here, it is possible to say that this argument converges in a symbiosis the notion of accountability and the one of access to information: the government has the obligation to explain to the citizenry its arguments in the adoption of any decision. In sum, it is clear that access to information is seen both as an end (fulfilling a constitutional mandate) and as a means (to gain legitimacy, to recover credibility in the public institutions, to combat the abuse of power, and to consolidate a pluralistic system);245 while transparency is seen as a residual element product of the degree of access to information in the country.

4.3.3 Comprehensiveness: Structures Covered by the Bill Barbosa's bill concentrates in regulating access to information in the federal public administration. The bill presented by the Fox administration contains a broad set of rules that will guide access to information in the federal public administration, but will leave to the judiciary, the legislative branches, the autonomous organizations and other organizations, the capacity to develop their own rules in this matter. By contrast, the Opposition's document provides a general set of laws regarding access to information, whose objective is to be applied to the whole federal structures of government: it does not make any distinction between branches of government, autonomous structures, or institutions of public interest, such as political parties. As I argued in section 3.3.2, following the argument that links public resources and information, this proposal includes as subjects of the law -without distinction- all those institutions that receive public resources (material or monetary) or are in contact with the public federal treasury -that receive or manage funds from it (Article 5). In this sense, it is possible to say that the purpose of this law is not only to promote homogeneity in the provision of information to the citizenry, but also to be as inclusive as possible in terms of the institutions that will be subject to public examination. "The intention is that all the activities, resolutions or measures realized with public money are [consequently]

245 Statement of Motives, Opposition's proposal, paragraphs 1-2, 5, 17-18.

76 of public domain", regardless if the resources are received directly or indirectly, using money or commodities.246

4.3.4 Contradictions in the Bill More than contradictory, an ambiguous element that is not clearly defined in this proposal is the argument developed in Article 2 which establishes that the proposal's objective is to "guarantee the right to get complete, real, adequate and timely information for all the persons of the Mexican United States". Strictly speaking, the right applies only to those individuals that inhabit the national territory, independently from their status (citizens, residents, tourists), but limiting the capacity of those Mexicans that live abroad to request information from its government. This factor is particularly relevant since at least 20 million nationals live out of the country, most of them in North America. Why it was designed in this way? The purpose of this section is not to speculate about this, but two alternatives arise: first, as an effort to hold on to sovereignty, and second, simply as a way to deny external organizations or individuals to interfere with government. The proposal is also ambiguous when it explains the functioning and characteristics of the organism that will be in charge of supervising the promotion, diffusion and study of the right to access information. First of all, the National Institute of Access to Public Information (NIAPI) will be part of the federal public administration as a non-sectored structure, with budgetary, patrimonial, operational and decisional autonomy (Article 24). An institution with these characteristics will definitely help to guarantee and enforce the right to information. However, the design suggested was controversial since it violates the principle of division of powers of the Constitution: an institution of the Executive branch will be the one responsible to guarantee the

246 Statement of Motives, Opposition proposal, paragraph 4. 247 Arturo Zarate Vite, "Hay 20 Millones de Mexicanos en el Exterior: SER", in El Universal Online, August 14, 2005, http://www2.eluniversal.com.mx/pls/impreso/noticia.html?id_nota=128355&tabla==nacion. This information corresponds to an analysis made for 2002, and was elaborated by the Secretary of International Relations of the federal government. It is possible to argue that the number of Mexicans living abroad could have grown at least in half a million more.

77 protection and promotion of the right to information in the whole federal government (executive, legislative and judicial branches), the autonomous organisms, and institutions of public interest (Article 27, paragraph 1). In view of the fact that only an organism with constitutional autonomy can have this status in the Mexican legal framework, if this law had been approved by Congress, it would have been easily contested for being unconstitutional; that is to say, an institution like the one suggested by this bill requires necessarily an explicit referent in the Charter, an element that was not considered in the proposal. Nonetheless, and in comparison with the other proposals, the one presented by the opposition parties in the Chamber of Deputies is the one that shows the strongest commitment to guarantee impartiality in the procedure to access governmental information and documents. However, the proposal obviates a number of important procedural elements that run against the right to information -elements that somehow are also present in the other two bills. For example, if the totality of the information in the hands of the government under this legislative proposal should be made public, it would firstly be necessary to organize all these documents and data. The right to access information would be ineffective unless the archives of the institutions that have to provide information are first organized and harmonized. Again, this is an aspect commonly dismissed in the three initiatives. Both Fox's and the Opposition's proposals talk about this fact, only considering it as a marginal aspect both in the statement of motives and in the normative section. But it is not: it is a key variable that can determine the success or failure of these types of rules.

4.4 Generating Consensus in Congress? The Final Configuration of LFTAIPG The three initiatives were sent to the Commission of Governance and Public Security (CGSP, Comision de Gobernacion y Seguridad Publico) of the Chamber of Deputies to be analyzed. The CGSP, after receiving the three bills, decided to create a "technical group" whose objective was to develop a legislative project about transparency and access to information in order to create a document of

78 "consensus" that would incorporate the principal elements and objectives of the three proposals.248 This "technical group" was composed of federal deputies and members of the social and civil "organizations, universities", and experts in the fields of transparency and access to information.249 According to the federal deputies, the three bills "coincide in the integrative elements of a regulation in the subject-matter discussed",250 such as the institutions that will be covered by the law, the necessity of establishing exceptions to the right of information linked to the preservation of the national and public security, and the private life of individuals. However, this argument is somehow inaccurate: on the one hand, the three bills agree that the principle of publicity is inherent to all governmental data and documents; but on the other hand, the bills clearly differ in the organizations that they cover. A common element to all the three documents is the notion of democracy that they use. Democracy not only means free, fair and competitive elections - although they constitute the first step in the construction of a system of accountability- but also the respect of the rule of law, human, civil, social and political rights. In this sense, there was a consensus within those that initiated the bills and the CGSP in terms of the correlation between access to information and the type of regime: first, the "increase in the access to [governmental] information is proportionately inverse to the authoritarism"; and second, a decision in favor of transparency and access to information modifies the "concept and the logic about the use of the public power in Mexico". Both elements are seen as indispensable in the consolidation of a democratic system of rule and in the construction of an effective system of accountability, element that is possible and only possible in a democracy. Moreover, the implementation of procedures that

248 "Intervention of Deputy Victor Manuel Gandarilla Carrasco to the plenary of the Chamber of Deputies", in Diario de los Debates. Organo Oficial de la Cdmara de Diputados del Congreso de los Estados Unidos Mexicanos 2(15), April 24,2002. 249 "Intervention of Deputy Luis Miguel Ger6nimo Barbosa Huerta to the plenary of the Chamber of Deputies", in Diario de los Debates. Organo Oficial de la Cdmara de Diputados del Congreso de los Estados Unidos Mexicanos 2(15), April 24, 2002. 250 Supra note 248. 251 "Intervention of Deputy Armando Salinas Torre to the plenary of the Chamber of Deputies", in Diario de los Debates. Organo Oficial de la Cdmara de Diputados del Congreso de los Estados Unidos Mexicanos 2(15), April 24, 2002.

79 promote transparency and access to governmental information constitute mechanisms that will modify substantially, according to the president of the CGSP, the relation between the government and the ruled. For years, the Mexican citizenry was seen as subordinate of the political system; but this notion began to change in the late years of the twentieth century.252 The Transparency and Access to Public Government Information Federal Law (LFTAIPG, Ley Federal de Transparencia y Acceso a la Information Publica Gubernamental) project was discussed on April 24, 2002,253 and presented by the president of the CGSP, Deputy Armando Salinas Torre (PAN), and two of the secretaries of the Commission, deputies Victor Manuel Gandarilla Carrasco (PRI) and Luis Miguel Geronimo Barbosa Huerta (PRD). All of them spoke in favor of the document and highlighted the influence that this bill would have in the promotion of accountability in all federal governmental structures, in the combat against corruption and abuses of power, in bridging the gap between the ruled and the rulers and to generate trust and confidence in the government, and in consolidating the democratic regime.254 Later, five other deputies spoke in favor - but in some aspects with reservation- to the initiative.255

a2 Supra note 249. 253 "De la Comisi6n de Gobernaci6n y Seguridad Publica, con Proyecto de Ley Federal de Transparencia y Acceso a la Informaci6n Publica Gubernamental", in Diario de los Debates. Organo Oficial de la Cdmara de Diputados del Congreso de los Estados Unidos Mexicanos 2(15), April 24, 2002. 254 Supra note 251. 255 Nevertheless, the PRD congressmen reserved, during his intervention, Article 1 of the project for discussion and subject to a particular vote. The other orators were: Jose" Manuel del Rio Virgen (Convergencia), Beatriz Lorenzo Juarez (Social Alliance Party), Gustavo Riojas Santana (Nationalist Society Party), Jaime Cervantes Rivera (Labor Party), and Arturo Escobar y Vega (Green Ecologist Party of Mexico). Deputy Riojas criticized, in name of his party, that the proposal LFTAIPG did not contemplate the application of the transparency and access to information procedures of the federal public administration to the Federal Electoral Institute. Moreover, he argues that the bill does not specify which public servants will be considered in the directory that the obliged subjects have to be published in Internet. Deputy Cervantes questioned two aspects of the project: first, the partial autonomy of the Federal Institute for Access to Public Information (IFAI, Instituto Federal de Acceso a la Information Publico), arguing that the formula adopted circumscribe this organism to the federal public administration. In this sense, the congressman argues, that the IFAI will be at the same time judge and jury in the process of guaranteeing access to information of the federal public administration and the promotion of transparency in the Executive federal branch. For that reason, he speaks for the creation of an institution with jurisdiction over the whole institutions of the federal government (executive, legislative, etc.). Finally, Deputy Escobar and Green Party disagree with the mechanism selected to appoint the commissioners that will be heading IFAI, aspect that is linked to the point discussed

80 As a first step, the bill was approved by unanimity in general terms (the totality of the 411 deputies present in the session of that day). The law received very few objections from the political parties represented in Congress, which reflected the high level of consensus regarding the document. In this sense, very few articles of the LFTAIPG were reserved for particular discussion, and just one of the additions suggested was accepted by the assembly: the addition of a phrase to Fraction XI of Article 7, establishing that all censuses of beneficiaries of social programs determined in the Federal Budget have to be public without request. This aspect is particularly relevant since those programs have been traditionally used as mechanisms of political cooptation. For that reason, making public all the censuses will help to avoid the use of social policies with clientelist objectives. The approved law begins with the delimitation of its objective: "provide whatever [such as resources, tools that are] necessary to guarantee to all persons the access to information in possession of the obliged subjects" (Article 1). Moreover, this argument is reinforced by Article 6 of the LFTAIPG where it is established that in the interpretation of this law the principle of publicity of the governmental information will always prevail.257 The LFTAIPG used the arguments of Vicente Fox's bill in the sense that the law develops extensively (32 articles of the law) the procedures that the federal public administration will use to operationalize the right access to governmental information and promote transparency within the public sector. However, the law provides very general principles (two articles) that will guide access to information and transparency in the other branches of government and in the autonomous organisms of the state, leaving to them the capacity of determining

by the Labor Party: the degree of autonomy of the new institute. However, they agreed that this constitute the first effort developed in this subject-matter, and subsequent reforms would have to strengthen the independence of this institution. Diario de los Debates. Organo Oficial de la Cdmara de Diputados del Congreso de los Estados Unidos Mexicanos 2(15), April 24,2002. 256 Which was in fact presented by the president of the CGSP of the Chamber of Deputies due to an agreement reached after the law was submitted to be discussed and approved by the plenary of the deputies. Idem. 257 Generally speaking, the three proposals coincide in these elements, but differ in the institutions that will be subject to this law. 258 Title Second (Articles 28 to 60) of this statutory act determines the mechanisms of "Access to Information in the Federal Executive Branch". Ley Federal de Transparencia y Acceso a la Information Publico Gubernamental, 2006.

81 the time and mechanisms by which their data and documents will be released. There is, in this sense, a quantitative difference -in terms of the number of rules- that will guide the transparency and access to information subject-matters in the federal public administration and the rest of the federal governmental structures. In the long run, this difference could manifest itself not only in the periods in which the information is provided, but also in the mechanisms to appeal a negation of the information requested, complain about the treatment received by any of the obliged subjects or even the nonattendance of any request of documents and/or data presented by individuals or organizations. This is in clear contrast with the Opposition bill, which suggests the provision of general guidelines for the entire federal government and its autonomous structures when it comes to the promotion of access to information. Although this will be preferable -not only in contrast to the Fox proposal, but also to Barbosa's document- the legislators opted for a moderate alternative. The moderate route avoided the need for constitutional reform which would have delayed the approval of a bill on those fields, and would have not taken advantage of the context of the political transition. The definitions used to conceptualize both transparency and access to information have been discussed in depth in the preceding pages, but how do these elements present themselves in the LFTAIPG? On the one hand, access to information was understood as a right in itself that belonged to an expanded notion of democracy and was also interlinked to the concept of accountability. Thus, access to information, and concretely access to governmental information, constituted both a means and an end: on the one hand, it is a mechanism that can help to prevent the abuses of power delegated to public servants and political authorities, to fight against corruption, and to bridge the gap between the society

Title Third (Articles 61 and 62) establishes the procedures that will guide this function in "the other obliged subjects". Idem. This provisions are contained in the Title First "General Dispositions for the Obliged Subjects", covering from Article 1 to Article 27. Ley Federal de Transparencia y Acceso a la Information Publico Gubernamental, 2006. Henceforth, all the articles referred in text are to this law,

82 and the governmental structures. This result is particularly relevant, since the Mexican political system was perceived as one that has traditionally operated autonomously, just appealing to society when the regime felt that its stability was in risk. On the other hand, transparency is seen both as an end and as a mean. On the whole, the deputies consider that transparency can be use to deter corruption and illegality within the public sector, but also, it constitutes an aspiration of a democratic political system - transparency helps to enforce accountability in the political and administrative structures. The approach to access to information adopted by the LFTAIPG does not differ significantly from the general positions of the three bills previously discussed, in the sense that all of the documents conceive of transparency and access to information as both ends and means in the reconstitution of the relationship of citizens and government. However, transparency has different connotations in both the LFTAIPG's statement of motives and in its normative section. In the latter, this subject-matter is operationalized using a narrow notion influenced by the proposal of Fox. Transparency, then, means the publication on the Internet of the basic information of the administrative structures of the government, those related to the day-to-day functioning of the public apparatus. This has a dual objective: first, the statement of motives argues that the diffusion by electronic means of that information will reduce "the costs of operation of this law" since a permanent mechanism of query will be established. And second, the CGSP considered that by enacting this procedure, they will not overload the functioning of this law by requests dealing with prime elements of the governmental work. However, for transparency to be effective, it must encompass a two way relationship between the government and the citizenry -the simple publication of selected data and documents is a good start, but it does little to provide the benefits that full transparency offers. In this sense, transparency is seen more as the "passive" exchange of information

See the first and second stipulation of the project presented by the CGPS. "De la Comisi6n de Gobernaci6n y Seguridad Publica, con Proyecto de Ley Federal de Transparencia y Acceso a la Informaci6n Publica Gubernamental", in Diario de los Debates. Organo Oficial de la Cdmara de Diputados del Congreso de los Estados Unidos Mexicanos 2(15), April 24,2002. 261 Stephen Fidler, art. cit., p. 713-715. 262 See the fourth stipulation of the project, subsection C. Supra note 260.

83 between the government and the citizens, leaving aside the "active" part of the equation -that is to say, a dynamic citizenry interested in how the government is operating.263 The day in which the LFTAIPG was discussed, the federal deputies mentioned that one procedural aspect of the mechanics of access to governmental information caused many controversies: when the authority in charge of attending the request of information gave no answer in the outlined period established by law, would this "silence" be considered a positive or negative response by the public officials? The proposals of Barbosa (its Article 27) and the Fox administration (Article 52 of its proposal) used the second option -known as negativa flcta- but the Opposition document used the first one -referred to as positivaflcta (Article 22 of the proposal).264 In the end, the formula that prevailed was the latter one, since the legislators considered that it obliges public institutions to attend all the requests of information in an effort to prevent the release of reserved or classified information.265 The choice of the positiva ficta alternative, although there is no public explanation about it, is grounded on practical facts: it will avoid the mechanisms that will overtax the inner structures that deal with the requests of information in the government as well as the IFAI, and force the public institutions to attend to all of the requests for information in an effort to prevent the release of information that could endanger the integrity of the state, that could compromise and undermine judicial investigations or negotiations, or that could put in danger the safety and health of individuals, among others -that is to say, the assumptions in Articles 13 and 14 of the law.

Comparing the positions put forth in the three bills, one can argue that the actual adopted position follows to the letter the structure and general design of

263 Cfr. Deidre Curtin, art. cit. 445^56. 264 This document also consider the absence of an answer as an act of negligence by the public servants and though subject to administrative sanction. 265 Article 53 of the later approved LFTAIPG establishes: "The absence of reply to a request for access to information within the term set forth in Article 44 shall be deemed as a positive one, and the department or entity shall be obliged to grant access to the information within 10 workdays, and shall pay for all the expenses resulting from the reproduction of the material, unless the Institute determines that the documents are privileged or confidential". Transparency and Access to Public Government Information Federal Law, in Federal Institute for Access to Public Information, Transparency, Access to Information and Personal Data. Regulatory Framework, Mexico, Federal Institute for Access to Public Information, 2004, p. 42; and see supra note 248.

84 Fox's proposal. That is to say, only a few elements from the proposals of Barbosa and the opposition parties were introduced in the final draft of this law. The principal elements added are: 1) number of commissioners of the Council that will head the IFAI and mechanisms adopted to designate them; 2) consequently, the LFTAIPG give the Institute more autonomy from the federal Congress and Executive and expand its faculties; 3) as was mentioned before, the substitution of the negativa ficta for positiva flcta, when the requester of information does not receive an answer from the authority in the periods determined by the law; 4) and finally, the inclusion of a chapter of sanctions to those public servants that violate this law. Most of these elements were basically developed in the bill presented by the Opposition, which was, in this sense, the second "source of inspiration" for the representatives in the CGSP while drafting this law. Despite this, the influence of the Opposition's bill must be considered limited. Again, more that 90% of the paragraphs and elements of the LFTAIPG are based on the one developed by the Fox administration. Fox's was the bill which could be positioned best between the arguments of Barbosa and the Opposition parties in Congress. The Fox alternative is a moderated one, and can be seen as first step in the implementation of transparency and access to information mechanisms in the federal government. This is why the deputies used his proposal as the basis of the LFTAIPG.

The arguments developed by Barbosa in his proposal were somehow more restrictive in terms in terms of its objectives and the institutions that it sought to cover. The other two bills were more comprehensive than Barbosa's. For that reason, the particularities of the Barbosa's document, although reduced, were relevant in the final configuration of the bill, since it considered elements that the other two bills did not: first (last paragraph of Article 14), the influence of his proposal can be seen in the anticipation of the misuse of "reserve criteria" to hide

266 Fractions XIV to XIX of Article 37, which were basically ideas that originated from the Opposition's proposal, such as elaboration and publication of studies and researches about transparency and access to information, help the legislative and judicial bodies, as well as the autonomous organisms of the State in the implementation of the mechanisms to guarantee access to public information and the promotion of transparency systems; the capacity to issue its internal regulations and norms; designation of their public servants; and the development of its budget. Basically, this attributes derive from the further autonomy granted by to the Institute by the TAPGIFL. Ley Federal de Transparencia y Acceso a la Information Publico Gubernamental, 2006.

85 information that can prove violations of human rights and crimes against humanity; and second, Article 52 establishes that the institute is required to help the requesters of information to rectify or correct the deficiencies in the notices of appeals when information is denied by the federal public administration. The other section where it is possible to find many of Barbosa's propositions, as well as those presented by the Opposition parties in Congress, is in the Title Fourth of the law (Articles 63 and 64), which determines the "responsibilities and sanctions" -basically administrative- that will apply to those public servants that violate the law. The LFTAIPG created the Federal Institute for Access to Public Information (IFAI, Instituto Federal de Acceso a la Information Publico), as the agency that will be in charge of supervising the federal public administration in fulfilling all of the rules and procedures on transparency and access to information; and they will also provide advice to "the other obliged subjects" in how to implement their own measures in this field. The IFAI is, to some extent, the by-product of the Fox and the Opposition bills: its faculties concerning transparency and access to information will be restricted to the federal public administration (as in the scheme presented of Fox), but will have more autonomy in its operation (as suggested by the Opposition). On the one hand, the IFAI will be a non-sectorized entity of the federal public administration that will be headed by five individuals that will be appointed by the president, but that will require the approval of the Senate (Article 34) -since this legislative chamber has the constitutional capacity to approve or reject the appointments of the president in the federal public administration. In other words, the Council of the IFAI will be not be politically or administratively dependent on the Executive branch (as was considered by Fox), but they will also not have constitutional autonomy (as in the Opposition bill). However, the autonomy granted will be enough at the very least to promote effective transparency and access to information in the federal public administration, although it would be preferable to adopt a strategy that covers the whole federal government, with

267 See Articles 33 and 34 of the LFTAIPG. Supra note 253.

86 homogenous procedures of accessing governmental information and a common mechanism to defend against the tendency of the public institutions to delay or obstruct the releasing of data and documents. On the other hand, as a result of the greater degree of the autonomy that was bestowed on the IFAI, the scope of this law expanded into fields that were not considered by the Fox administration. The proposals of the President of the Republic and of the Opposition parties in Congress both agreed in restricting the jurisdiction of that institution only to the federal public administration. However, the duties assigned to this organization become wider than the ones suggested by the federal Executive's bill. The "new" faculties assigned to the Institute refer mostly to the elaboration and publication of research concerning transparency and access to information; to make public officials more aware of the importance of adequately administrating governmental information and documents; to help other obliged subjects at the federal level, as well as state and municipal governments, to improve transparency and access to information in their offices; to designate the public servants that will head the institution; and finally prepare and present its annual budget to the federal Executive. Again, the solution adopted by the deputies was an intermediate one, situated between the scheme proposed by the Fox administration and the one of the Opposition in Congress. As stated before, the federal deputies assumed that moderate posture, conscious that promoting transparency and access to information requires the adoption of a norm that reflects consensus among all of the political actors. In that sense, the legislative work reflects the necessity of satisfying different groups and organizations that have pushed for the adoption of a law on transparency and access to information. But it is also possible to argue that the federal legislators considered it indispensable to cover this law with a cloak of legitimacy by giving the IFAI the autonomy required to give viability to the implementation of procedures that promote transparency and access to governmental information in Mexico.

Article 37, Fractions XIV to XIX, Ley Federal de Transparencia y Acceso a la Information Publico Gubernamental, 2006.

87 A final and critical aspect about the LFTAIPG is that the federal legislators denied to this law the capacity of being a statutory act of a constitutional article. During the discussions held in the Chamber of Deputies the day in which this law was approved, the PRD suggested that a phrase be included in Article 1 to make an explicit link to the constitutional right of access to information. Nevertheless it was rejected by the plenary of the Congress by 348 votes of the deputies (and the opposition of the 39 PRD representatives).269 The defender of the reform project - Deputy Barbosa- considered that by introducing this reference in LFTAIPG it would have more strength and would give to the law a regulatory status within the Mexican normative framework. However, the rejection of this proposal probably reflects that the CGSP arrived at a very specific consensus about the final configuration of the law. In other words, the parliamentary groups -which in Mexico are much disciplined-270 vote according to the agreements reached by all the political parties in the CGPS, where the proposal of LTAIPG was discussed. If the reform has been approved, it would have given more strength to the law by establishing a linkage to the main Charter. The LFTAIPG attended some of the problematic elements of the three proposed bills. First of all, it is true that the work of the IFAI was only confined to supervise the enactment of the transparency and access to information in federal public administration. But this structuring does not violate the division of powers of the Opposition bill, neither creates an organization completely dependant on the will of the president of the Republic (as was in the Fox's proposal). The law states precisely that only Mexican citizens and organizations registered in the country can request governmental information, correcting the flaw that in this was presented by the Opposition's bill. The law approved also dismissed the proposal of the Fox administration to apply a charge for searching the information requested. As in the other two bills, the citizen has only to pay for the costs of reproduction of the materials that she or

269 Supra note 260. 270 Cfr. Daniel C. Levy and Kathleen Bruhn, art. cit, pp. 539-547; Daniel C. Levy and Kathleen Bruhn, with Emilio Zebadiia, Mexico. The Struggle for Democratic Development, Berkeley, University of California Press, 2006, pp. 104-105; and Roderic Ai Camp, Politics in Mexico. The Democratic Consolidation, New York, Oxford University Press, 2006, pp. 183-189.

88 he asked for. That is to say, the principle of publicity of the governmental data and documents prevailed over economic considerations. The LFTAIPG constitutes an adequate framework to improve transparency and access to information in the federal government. As with any other human creation, the law is not perfect in many areas, but nevertheless it represents the most important step in recent decades for Mexico to make public the information generated by the federal public institutions. In retrospect, however, some sections of the law remain weak. For example, the issue of data and archive organization was somewhat dismissed by the legislators; although it is a critical aspect that could determine the degree of success or failure of the transparency and access to information project. On the other hand -and although it was not discussed in this research- it is necessary to say that the LFTAIPG seeks also to protect the personal data of individuals by stating in that document some general principles that will guide the work of the federal government in this field.

4.5 Final Remarks In sum, what has been previously discussed sheds some light on the elements that were taken into account in the construction of the LFTAIPG and the definitions that have been used by its authors to develop this standard, as well as to explain the legislative process that led to the approval of the project presented by the CGPS. First, the three bills discussed here share the same definitions about democracy and accountability. The first one is an expanded notion and the second one is seen as an element that can speak for the quality of the democratic system of rule. Transparency and access to information are seen as means to achieve accountability, to deter corruption from the public sector, and to promote democracy; but also they are conceived as an end, in the sense that making effective the right to access government information and to upgrade the transparency of the government, are seen as inherent elements of a liberal system of rule. Secondly, as I have shown, the legislative process behind the "elaboration" of this law is somehow minimal. The basis of the actual LFTAIPG is Fox's proposal,

89 and the changes introduced by the CGSP are relevant, but at the same time minimal, when the whole document is taken into account. However, the changes introduced by the federal deputies to the Fox's bill were critical in the sense that gave to the IFAI more autonomy from the Executive branch. This, in the long run, will promote better performance of the institute -as the IFAI will operate independently from the structures of the federal public administration. In this context, it is possible to argue that the federal legislators used the bill that presented a more moderate vision of how to improve transparency and access to information at the federal level of government: the Fox proposal. Then, the deputies polished that document by introducing some elements of the other two proposals. And thirdly, it is undeniable that the implementation of this law at the federal level has completely changed the relationship between citizens and their government. It pressed many structures of government at the state and municipal level to introduce norms that seek to promote transparency and access to information in their own jurisdiction.

5. CONCLUSIONS Transparency and access to information in government are both subject-matters that belong to the overarching topic of accountability. They have different meanings, but, at the same time, coexist in a symbiotic way. On the one hand, transparency plays a role in determining how and when public structures release their information. On the other hand, access to information has been conceptualized basically as an individual's right, since citizens or individuals can take better decisions when they have more information about the alternatives within their reach. But improving governmental transparency and access to public information is only possible under a democratic regime, since it can establish a two-way relationship between the ruling structures and the citizens. A democracy means that public servants, both elected and non-elected, are responsible for their acts in public offices to the citizenry; but at the same time, democracy means that

90 citizens can dispose of mechanisms to call for account those servants. However, this process is only possible when the government releases data and documents that explain its actual functioning and historical performance. In other words, accountability in government is only possible through effective systems that promote transparency in public offices by means of giving access to its information. Transparency and access to information are therefore powerful components in the democratic process, since both allow individuals to supervise the government's work. In this context, both have become relevant issues in Mexican politics once the political transition at the federal level took place. As it has been explained, the authoritarian regime under PRI rule inhibited the application of accountability, transparency and access to governmental information and its later development, since those constituted elements that could break the corporatist and clientelist structures in which the post-revolutionary system has relied. It implied giving tools to citizens so that they can evaluate the government and, therefore, that public servants will not be able any more to operate autonomously from the society, without taking the will of common individuals into account. Nevertheless, the government introduced programs and strategies that on paper have sought to improve accountability, transparency and access to information at the federal level. That is to say, the policies developed on those topics were only a facade which had the ultimate objective of gaining legitimacy for the authoritarian system and, consequently, maintaining the PRI's political power. But once the PRI was thrown out of Los Pinos in 2000, the new and first non- PRI federal administration since the 1930s, used the subject-matters of accountability, transparency and access to information to differentiate themselves from the authoritarian regime. The permanence and viability of a National Action Party's government required a set of policies whose objective was to create in the Mexican imagination the sense that the Fox administration was in fact the "government of change". "Change" that implied, at least in discursive grounds, the reorientation of the governmental practices toward schemes that responded to the necessity of making a more responsible and accountable government.

91 In this sense, the government headed by Vicente Fox approached those elements more in a procedural than in a substantive way, as a bargaining chip to strengthen and (again) legitimate the "administration of change" in the midst of the political transition. This research has suggested that transparency and access to information are elements that, in the Mexican case, became de facto effective when the political transition occurred. This study runs against those views in Mexico defended by some analysts271 that insist that the enactment of the LFTAIPG is the result both of the social pressure that governmental structures have faced to open their archives to public scrutiny and a real commitment of Fox toward democracy, accountability, transparency and access to information. Further comprehensive analyses on these subject-matters are obliged to test the explanatory power of those variables in the implementation of systems that improve transparency and access to information in the country. However, this research has proved that besides those factors, it is possible to see elements that support the argument that transparency and access to information were also elements with an 'instrumental' value for the Fox project and that helped it to fulfill the campaign promises, which were constructed upon the evils of the PRI regime. But the political transition was also used by all political actors in different ways. The opposition parties in Congress presented two legislative bills that sought on paper to contribute to the debate on transparency and access to information. Parties were imbued in the political transition, and wanted to exploit the possibilities of this new scenario. On the one hand, the proposal of the PRD- eongressmen Luis Miguel Barbosa has to be framed as part of the long-standing efforts of the Mexican opposition to limit the "discretional powers" and "arbitrary actions" that has been associated to the all-mighty president of the Republic.272

See, for example, Juan Francisco Escobedo, art. cit, and Ernesto Villanueva, "Participaci6n Social y Acceso a la informacion Piiblica en America Latina", in Derecho Comparado de la Information 2, 2003, pp. 145-158. 272 Rogelio Hernandez Rodriguez, "Inestabilidad Politica y el Presidencialismo en Mexico", in Mexican Studies/Estudios Mexicanos 10(1), 1994, pp. 187-216; and Alonso Lujambio, "Adi6s a la excepcionalidad: r6gimen presidencial y gobierno dividido en M6xico", in Jorge Lanzaro (comp.), Tipos de Presidencialismo y Coaliciones Politicas en America Latina, Buenos Aires, Consejo

92 On the other hand, the Opposition bill, by contrast, is the result of a consensus between civil, social and media organizations. The LFTAIPG closely followed the guidelines of Fox's bill, but the federal deputies introduce elements present in the other two documents to improve the content of the proposal to the Executive branch. The result was a watered-down law, a somewhat "moderate" law that denied the possibility to apply the same procedures to the whole federal government (to all of its branches and autonomous organisms), but a law that nonetheless remains the most important step in the recent history of the country to increase the accountability of the political elite. This law has helped to move the center of power towards the citizens, by helping them to access data and documents that explain governmental performance. It is true that the federal deputies used the bill of Fox as the basis of the LFTAIPG. But the changes introduced, although minimal in terms of the extension of the text, were critical. The elements borrowed from the other two bills and included in the final draft of the law gave to necessary autonomy of the oversight body, the IFAI, to improve transparency and access to information in the federal public administration. It is possible to say that, at least in this specific case, the legislative process in Mexico at the federal level functioned to improve the normative framework on transparency and access to information. Ultimately, the most interesting and important data that will emerge will come from the actual impact of the law -not just its proposed role on paper. But it is necessary to investigate this using a comprehensive analysis that takes into account not only the legal framework and the qualitative and quantitative results of the requests of information. The study of transparency and access to information in Mexico at the federal level requires focusing more on how the law has impacted the development of civic engagement in governmental affairs. In other words, it is necessary to ask if the law has managed to arouse in the Mexican citizenry the idea that only through the active supervising of society of the public institutions will be possible the consolidation of a democratic system:

Latinoamericano de Ciencias Sociales-Agenda Sueca de Desarrollo International, 2003, pp. 251- 282.

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112 7. ANNEX

TABLE 1. CHRONOLOGY OF THE MEXICAN PRESIDENTS: 1934-2006

PRESIDENT PERIOD PARTY

Lazaro Cardenas del Rio 1934-1940 PNR

Manuel Avila Camacho 1940 -1946 PRM

Miguel Aleman Valdes 1946-1952 PRI

Adolfo Ruiz Cortines 1952-1958 PRI

Adolfo Lopez Mateos 1958-1964 PRI

Gustavo Diaz Ordaz 1964-1970 PRI

Luis Echeverria Alvarez 1970-1976 PRI

Jose Lopez Portillo y Pacheco 1976-1982 PRI

Miguel de la Madrid Hurtado 1982-1988 PRI

Carlos Salinas de Gortari 1988 - 1994 PRI

Ernesto Zedillo Ponce de Leon 1994-2000 PRI

Vicente Fox Quesada 2000-2006 PAN

* Note: The first name of the PRI was Partido National Revolucionario (PNR, National Revolutionary Party), holding that name from 1929 to 1938. In that year, President Cardenas changed the name to Partido de la Revolution Mexicana (PRM, Mexican Revolution Party). In 1946, President Avila Camacho promoted its actual name.

Source: Rogelio Hernandez, "La Historia Moderna del PRI: Entre la Autonomia y el Sometimiento", in Foro International 40(2), 2000, pp. 278-306.