The Supreme Court of Justice of the Nation resolved that the National Institute of Transparency, Access to Information and Protection of Personal Data (Inai) is the competent authority to resolve the appeals for review filed against the denial of information by any government body, including autonomous entities such as the National Human Rights Commission (CNDH).
This was determined by the First Chamber of the country’s highest constitutional court when analyzing as part of the constitutional controversy 97/2022 filed by the CNDH against the resolution that the Inai issued on April 20, 2022 in the review appeal RRA 3726/ 22.
Through said resolution, the Inai ordered the CNDH to provide the full version of a file related to the discovery, in 2010, of clandestine graves in the municipality of San Fernando, Tamaulipas, for corresponding to an investigation that deals with serious violations of human rights or crimes against humanity.
The CNDH argued in its lawsuit that, when issuing its resolution, the INAI incorrectly attributed to itself powers to determine if the request was involved in events allegedly related to serious human rights violations, a power that corresponds to it.
The ruling establishes that although it is the responsibility of the CNDH to analyze, at first, requests for access to files, such as the one requested, in order to decide whether the information contained is related to serious human rights violations, given the refusal to provide the information and in accordance with the Constitution, the INAI is competent to hear appeals for review filed against determinations to decide whether they were correct or not.
It is within the powers of the Inai, he specifies, to establish, in a preliminary way, what is called prima facie, if the facts contained in the requested file constituted serious violations of human rights in order to give access to its content.
According to the ruling, to claim that the CNDH is the only instance at the federal level that can rule on whether certain facts constitute serious violations of human rights and that only in the face of such a decision can access to information be granted by obligated subjects, would imply transfer the constitutional obligation that the Inai has to determine in a preliminary way, and for strict purposes of access to information, the existence or not of these violations.
This, he concludes, would make the administrative mechanism created by the Constituent power in favor of citizens to go before the INAI to dispute the refusal of information by any authority, illusory.
