Introduction

In this article, the authors analyse the right to access to information as an aspect of the broad concept of epistemic rights by focusing on the development of legal frameworks in two Latin American countries: Brazil and Mexico. Both countries have similarities in their colonisation processes which bequeathed a public administration marked by patrimonialism and states that were born closed and distant from the population.

Chronologically, the right to access to information was constitutionally consolidated in similar periods in both countries: in Mexico in 1977 and in Brazil in 1988. However, such constitutional guarantees lacked regulation. Thus, in 2002, Mexico’s first Access to Information (ATI) law was passed nine years earlier than the Brazilian law, serving as a parameter (along with other international experiences) for the latter’s elaboration. The Mexican law is considered an international reference (Michener & Bersch, 2011) for, among other reasons, creating an autonomous body that acts as an appeal and supervisory body of the application of the rule and other issues related to public transparency and protection of personal data. This autonomous body in Mexico is known as the Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales (INAI).

Civil society organisations strongly participated in the process of passing the Mexican ATI law. This mobilisation also served as a reference for Brazilian groups that defended the creation of an ATI law. Finally, it is worth noting that Brazil and Mexico were part of the group of countries that started the Open Government Partnership (OGP) in 2011.Footnote 1

In this introduction section, some important historical events that contributed to the consolidation of the right to access to information in the region are listed. The first event was the approval of the Universal Declaration of Human Rights (UDHR) by the United Nations General Assembly in September 1948. Among the 30 articles listed, Article 19 states 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 frontiers. (UN, 1948)

This does not mean that the right to access to information arose only at this time. Centuries earlier, in 1766, Sweden passed a law guaranteeing freedom of access to public information on the initiative of the Lutheran clergyman and congressman Anders Chydenius, who was inspired by the Chinese doctrine (Lamble, 2002). In 1794, in the wake of the French Revolution, the Law 7 de Messidor guaranteed French citizens access to all public documents. In Latin America, Colombia was the pioneer country in this regard. Colombia enacted the Code of Political and Municipal Organisation of 1888, which established the right to citizens to receive information from government agencies. Thus, although the UDHR is used as a historical normative framework at the international level, previous experiences of different countries are not disregarded.

After the adoption of the UDHR, countries began to regulate the right by enacting laws concerning access to public information: Finland (1951), the United States (1966), and Denmark (1970). During this period, many Latin American countries lived under dictatorial regimes, in which freedom of information was restricted. The 1980s and 1990s were marked by processes of democratic transition in countries in the region, such as Argentina in 1983, Brazil and Uruguay in 1985, Paraguay in 1989, and Chile in 1990, periods that coincided with the development of information and communication technologies that provided opportunities for individuals to seek more information.

Thus, driven by changes in political dynamics, technological advances, and financial issues in the face of an increasingly globalised economy, the process of passing ATI laws began to gain strength in the region in the 2000s. This includes the ATI laws of Mexico and Peru (2002), Ecuador and Uruguay (2004), Chile (2008), El Salvador (2010), Brazil (2011), Guyana (2013), Colombia and Paraguay (2014), and Argentina (2016). There are still countries in the region that do not have access laws, such as Venezuela and Cuba.

Mendel (2009), after analysing the legislations of 11 countries in the region, verifies that the norms generally have a comprehensive scope and include basic information to be made available and updated by public agencies in a proactive manner. Developing countries adopt a different approach when dealing with the regulation of the right to information, which they see as a human rights issue, not a governance issue as in developed countries (Mendel & Dutra, 2020).

Michener (2015) highlights other innovations that characterise access laws in Latin American countries, such as the prohibition on restricting access to information about fundamental rights or investigations related to human rights violations. Thus, the right to access to information has risen to the category of a fundamental right and has been regulated through laws with a greater or lesser degree of opacity. The cases of Mexico and Brazil are analysed below.

Key Historical Events in the Introduction of the Right to Access to Information: A Comparative View Between Mexico and Brazil

Mexico’s first ATI law was passed in 2002 as a result of civil society mobilisation and a change in the government coalition after more than 70 years of hegemony of a single party, the PRI (Luna Pla, 2009). The civil society that mobilised consisted mainly of academics and journalists, who specifically aimed to advocate for the approval of an ATI law, such as the Oaxaca group created in 2001. The alliance between journalists and academics guaranteed visibility of the group’s agenda. They devised a discursive strategy to disassociate the idea of access to information as something related to legislation aimed at media outlets. The goal was to avoid associating information with journalistic information but rather with government information.

According to Issa Luna Pla (2009), during the campaign for the approval of the law, the expression ‘right to know’ was used because of its easy understanding by the public and quick insertion in the content of the engaged printed newspapers. The message suffered some adaptations depending on the audience for which it was intended. It could take on a more administrative discourse (with arguments focused on accountability, anti-corruption agenda, and transparency) or focus on a democratic government axis, with greater citizen participation; human rights; and finally, media benefits.

After the negotiations between government and activists, the text was approved by the House of Representatives on April 24, 2002, and passed by the Senate a week later. Thus, the Federal Law of Transparency and Access to Public Government Information was sanctioned on June 10 by Vicente Fox. One of the most important points of the law was the creation of the Federal Institute of Access to Information (IFAI), which acts as a supervisory body and an appeals court within the federal executive branch and promotes training for public servants to act in accordance with the precepts of the new rule as well as the enforcement of the rule. After the passage, the law underwent reforms. In 2015, it was replaced by the General Law of Transparency and Access to Public Information, which increased the amount of information that must be compulsorily published through active transparency by all public bodies in the country, including political parties and unions. Finally, the IFAI was transformed into the INAI, and its powers were expanded to include all three branches of government.

Brazil passed its ATI law in 2011, in a process that took longer to negotiate and move in the National Congress than in Mexico. The right to access to information is guaranteed by the Federal Constitution, enacted in 1988. The first bill aiming to regulate the topic was presented in 2003. However, before that, other norms related to access to information were approved, such as the Habeas Data Law and the Fiscal Responsibility Law. In addition, the creation of the Office of the Comptroller General and of the Council for Public Transparency and Combating Corruption, which played an active role in the debates that preceded the creation of a proposed law for access to information, is noteworthy.

The mobilisation of civil society was led by the organisations that formed the Forum on the right to Access to Public Information in 2003, inspired by the experience of the Oaxaca group (Costa et al., 2021). Unlike the Oaxaca group, the Forum on the right to Access to Public Information did not draft a bill but worked on monitoring the texts that were being processed in Congress and advocacy actions with the presidential candidates in the 2006 election and other government representatives. An example of this was the organisation of the International Seminar on the right to Access to Public Information in 2009. On that occasion, the then Minister of the Civil House Dilma Rousseff committed to send in the following weeks an ATI bill to the Congress, which in fact occurred (Dutra, 2021). To move the bill forward, a group of organisations that made up the Forum for the right to Access to Public Information adopted a discursive strategy focused on the rights to memory and truth. While the initiative was in the Senate, Brazil was condemned by the Inter-American Court of Human Rights in the Gomes Lund case, known as Guerrilha do Araguaia,Footnote 2 which gave more impetus to the discursive strategy. Not coincidentally, Brazil’s ATI law was sanctioned by President Dilma Rousseff on the same day that the National Truth Commission was created, and its members appointed.

These events show the participation of civil society groups, to a greater or lesser extent, in the defence of the approval of a legal framework that would ensure the right to access to information. The Mexican experience inspired the mobilisation in Brazil, mainly uniting representatives of the press, academics, and organisations focused on social control in the case of Brazil. In terms of the discursive strategy adopted by these groups to defend the passage of the law, the Mexican experience adapted the narrative according to the interests of the target audience, seeking to detach the norm as something that would exclusively benefit press professionals. In the case of Brazil, there was a link with the rights to memory and truth based on the unknown information about the practices of public agents during the military dictatorship. Common to the two experiences was the support of media professionals who sought to keep the topic on the public agenda.

Challenges in the Right to Access to Information in Mexico and Brazil

Even though Mexico has a two-decade history of regulating the right to access to information, some challenges persist. This work focuses on two challenges: popularisation and political obstacles.

According to the 2019 National Survey on Access to Public Information and Personal Data Protection (ENAID, acronym in Spanish), 77.8% of individuals who have no experience in filing a request said that they had no interest in doing so, while 21.1% expressed interest. The numbers reflect this insight: it is not only a matter of clarifying or simplifying the process of requesting public information but of raising awareness about the objective of giving people access to public information, a much more challenging task.

Regarding the profile of the requesters, according to INAI’s 2019 activity report, users are mostly young (those under 18 years old corresponded to 18% of the requesters, followed by the age group 25–29 years old with 14%, and 35–39 years old with 13.7%) and males (63.4%). As for education, 51.5% received higher education, and 31.2% have a postgraduate degree. Finally, in relation to occupation, most work in the academic field, followed by private companies, public administration, and in fourth place, the media. This means that the argumentative strategy used during the mobilisation for the approval of the ATI law was successful not only because the law was passed, but because journalists are not the main users of this mechanism. The ATI law did not only benefit journalists.

As to responses, when analysing more than one million requests for access to information filed between 2004 and 2015, Berliner et al. (2022) verified that the quality of the response received varies according to the language used in the request. As of 2008, an increase in requests with formal, specialised language and legal references was observed. These requests took less time to be answered, which was not the case before. This scenario shows the growing importance of mastering knowledge about state bureaucracy and specific terms of the legislation to enforce the right to access to public information.

In addition, the phenomenon of discrimination in answering information requests according to the identification of the requester is also observed in the country (as well as in Brazil), especially when it comes to journalists (Fox & Haight, 2011).

The second challenge is political in nature and influences the maintenance of the country’s access to information structures and, consequently, the guarantee of this right. Elected in 2018, Andrés Manuel López Obrador from the Morena party has already questioned the effectiveness of the INAI in several press conferences. ‘It costs a billion pesos to maintain this body. It was created, but what has it contributed to reducing corruption? On the contrary, corruption has grown like never before at the same time this body was created’ (Redacción AN / GV, 2018), he said in December 2018. Two years later, in December 2020, he restated the argument in another press conference: ‘What are these bodies for? They are decorative’ (Caña, 2020). In addition, the number of appeals questioning denials of access to information that have reached INAI has increased considerably since the beginning of the new president’s administration (Langner, 2020).

The increase of corruption scandals is precisely due to the fact that effective access to information increases the chances of bringing irregularities into light. For example, journalistic investigations used transparency tools that revealed the scandal known as La Casa BlancaFootnote 3 in 2014 under President Enrique Peña Nieto. Another example is the discovery of thousands of clandestine cesspools around the country,Footnote 4 resulting from the policy of war against drug trafficking between 2006 and 2016.

As an effect of this political context, INAI’s budget faced reductions, a consequence of the government’s perspective on the importance of access to public information policies (Table below 9.1).

Table 9.1 Evolution of INAI’s budget between 2017 and 2020
Full size table

The numbers represent the challenge of preventing setbacks in guaranteeing the right to access to information even after 20 years of regulation and with a trajectory strongly marked by the actions of civil society. In addition, they show the importance of spreading the mechanisms of access to information provided by the law, so that different audiences can appropriate the tools and value and defend its maintenance.

The challenges faced in Brazil resemble those of Mexico, as they also go through popularisation and political obstacles. Before going into the details, it is necessary to say that there is an assessment by journalists who dedicate themselves to write about topics related to the period of military dictatorship in the country (Dutra, 2015) that the law represented little progress in clarifying historical facts. In other words, the discursive strategy based on the rights to memory and truth was successful in boosting the approval of the norm, but it had little practical effect in revealing new information.

Furthermore, a fundamental challenge is to ensure that the Access Law is regulated at the municipal level. A survey conducted by the Forum on the Right to Access to Public Information based on data from the CGU found that 86% of the country’s municipalities have not yet regulated the law, which generates several limitations on its application. The diffusion of the tools for access to information can only occur after the public administration has fully adapted to the norms established by the legislation.

Regarding the popularisation of the norm, data from the Access Law PanelFootnote 5 allow for profile tracing of LAI users in the federal government: men between 31 and 40 years old, employed in the private sector and living in the Southeast region. Thus, the challenge is to diversify the profile of users and democratise the tools for access to public information.

Among the political obstacles are the attempts by the Executive to change the norm. In January 2019, the first month of Jair Bolsonaro’s government, the vice president, General Hamilton Mourão, issued a decree that increased the number of servers with the power to classify public information in the highest degree of secrecy. The text was overturned in a first vote in the Chamber of Deputies and then revoked by the government. In March 2020, almost two weeks after the World Health Organisation declared the new COVID-19 pandemic, the federal government issued a Provisional MeasureFootnote 6 which suspended the deadlines for requests made via the ATI law. The measure was suspended by the Federal Supreme Court.

The restrictions on access to public information during Jair Bolsonaro’s government were also identified in a report by NGO Transparência Brasil, released in August 2020. A survey based on data made available by e-SIC between January 2016 and June 2020, covering the end of Dilma Rousseff’s government and the entire term of Michel Temer, revealed that Bolsonaro’s administration used the most controversial justifications to reject requests for access to information (Dantas, 2020).

During the COVID-19 pandemic, several episodes of opacity were recorded in the disclosure of public information essential to adopt individual or collective prevention measures (Dutra, 2020). This opacity caused civil society organisations to file a complaint on July 15 with the Inter-American Commission on Human Rights. In the document, the organisations accused Jair Bolsonaro’s administration for ‘repeated violations of the rights of access to information and freedom of expression’, which has ‘severely damaged the actions to combat COVID-19’ (Berti, 2020).

Conclusion

Given this scenario, it is necessary to be cautious to attempts to restrict access to public information and to defend the legislation that regulates this constitutional right.

In the case of Mexico, there was an effort to detach the theme from the journalistic sphere with the goal of showing its importance to different audiences. In Brazil, there was a link to the rights to memory and truth. In both countries, the difficulties that arise concern the protection of the norm and its enforcement bodies in the face of different political scenarios.

Years after the approval of the laws, it is essential to permanently monitor the rules and procedures derived from the access laws in these countries. In addition, there has been an understanding of the need for more research on the use of the law, public policies arising from the norms, and informational and communication literacy actions so that an even more diversified public, especially composed of vulnerable people, educators, children, and adolescents, can request and receive information to gather better conditions to participate in decisions that affect society.