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03 February 2015
3 February 2015
The Committee on Enforced Disappearances today concluded its consideration of the initial report of Mexico on how that country is implementing the provisions of the International Convention for the Protection of All Persons from Enforced Disappearance.
Presenting the report, Juan Manuel Gomez Robledo, Undersecretary for Multilateral Affairs and Human Rights at the Ministry of Foreign Affairs, said that Mexico continued to face challenges which it needed to overcome. The enforced disappearance of the students in Ayotzinapa had only highlighted the fact that Mexico had to continue to address issues related to corruption, poverty and exclusion. Ten measures, announced by the President of Mexico in November 2014, would be implemented to improve security, justice and the rule of law in Mexico. A nation-wide database system for the identification of missing persons, Ante Mortem–Post Mortem, was now in place and was being continuously strengthened.
During the dialogue, Experts asked questions about the hierarchy and applicability of laws at federal, state and local levels, current statistics on missing persons in the whole of Mexico, enforced disappearances of migrants and children, procedures in cases where military personnel were involved, reparations for victims and resolving the issue of victims of the “Dirty War”, informing relatives of a person’s detention, and the system of preventive detention known as arraigo. More details were also requested on the applicability of the Convention in Mexican courts, bilateral extradition treaties, and the status of the draft general law on enforced disappearances.
In concluding remarks, Rainer Huhle, Committee Expert and Rapporteur for the report of Mexico, said that the meeting had generated unprecedented interest, and hoped that the interest into this very serious problem in Mexico would continue. Follow-up recommendations would be forward-looking, and the Committee stood ready to provide further support to the State party and assistance to the victims.
Mr. Gomez Robledo, in concluding remarks, said the State party stood convinced that every interaction with international treaty bodies had a positive effect on the domestic agenda. It was hoped that the discussion would help Mexico improve its domestic standards. The presence of the Chair of the National Human Rights Commission with the delegation was important and unprecedented.
The delegation of Mexico included representatives from the Ministry of Foreign Affairs, Government Secretariat, Office of the Attorney General, State of Coahuila, Chamber of Deputies, Executive Commission for the Care of Victims, Ministry of National Defence, Maritime Ministry, National Human Rights Commission and the Permanent Mission of Mexico to the United Nations Office at Geneva.
When the Committee reconvenes at 3 p.m. this afternoon, it will start its consideration of the initial report of Armenia (CED/C/ARM/1).
The initial report of Mexico (CED/C/MEX/1) can be read here.
Presentation of the Report
JUAN MANUEL GOMEZ ROBLEDO, Undersecretary for Multilateral Affairs and Human Rights at the Ministry of Foreign Affairs of Mexico, said the delegation was convinced that this dialogue would help clarify many issues and include new actions that Mexico would take in coming years. Mexico recognized that it continued to face challenges which it needed to overcome. The enforced disappearance of the students in Ayotzinapa highlighted the fact that Mexico had to continue to address issues related to corruption, poverty and exclusion. Only when all the perpetrators had been punished and the whereabouts of disappeared persons established could the process of reknitting the social fabric commence. The Government expressed full solidarity with the families of the missing persons.
The authorities had carried out an unprecedented criminal investigation in the history of Mexico. Help had been requested from the Inter-American Commission on Human Rights, which had subsequently designated a group of independent experts, who would make recommendations on structural issues. Mexico welcomed an external view of what had happened in the country and constructive criticism, but a true dialogue should take place instead of mere condemnation.
Mexico was working on reinforcing the comprehensive system of prevention, which considered criminality in different areas. Ten further measures would be implemented to improve security, justice and the rule of law in Mexico, as announced by the President in November 2014. All those changes had been the subject of discussions amongst experts, academics and civil society. An objective analysis of the human rights situation in Mexico would need to bear in mind the fact of where Mexico had come from and what had been achieved over barely three decades. Mexico’s voluntary adherence to the Convention represented a new crucial stage.
ELIANA GARCIA LAGUNA, in charge of the Deputy Attorney General’s Office for Human Rights, Crime Prevention and Community Services at the Office of the Attorney-General, recognized that the Government had still not done enough considering the scope of the issue with which the country was dealing. Since September, the Office had been using the database system for the identification of missing persons, Ante Mortem- Post Mortem, after having signed a protocol with the International Committee of the Red Cross. The system had been installed in numerous local offices across the country, along with 95 mobile laboratories, which were meant to help identify victims. The aim was to create a blueprint for the search of persons through direct complaints. Mexico had adopted a wide range of policies to help improve the search for missing persons and undertaken various actions to consolidate a unified, current register for the search and localization of missing persons. The Government was cognizant of the fact that behind the figures there were real persons and destroyed lives of many families.
RUBEN IGNACIO MOREIRA VALDEZ, Governor of Coahuila and Coordinator of the National Conference of Governors, said that this body would help with the setup of the national Ante Mortem-Post Mortem database and strengthen forensic and investigative capacities. Institutions across different states were committed to supporting the nation-wide search units. The States were lending their support to the Attorney General by acquiring information on genetic profiles, which would be included in the National Genetic Database, known as “CODIS”. As the Governor of Coahulia, Mr. Moreira Valdez had set up a state-wide search plan, and was working closely with the families of missing persons. An autonomous working group had submitted a number of proposals, which had led to some amendments in the State Constitution and the adoption of relevant legislation. A comprehensive missing persons programme had already helped over 200 families, and aimed at preventing double victimization.
Questions from Committee Experts
LUCIANO HAZAN, Committee Member serving as the Rapporteur for the report of Mexico, thanked the families of missing persons and non-governmental organizations for providing the Committee with valuable input. The Committee had thus far been working with Mexico through the procedures provided for urgent measures and was glad to have a chance to review the initial report. The current review would not be the end of the conversation and would be followed by recommendations to the State party.
While the case of Ayotzinapa had brought the attention of the entire world to the problem in Mexico, the Committee was looking at the issue at large. The Committee welcomed the in-depth report by the State party, but had identified a number of outstanding questions. The discrepancy between words and deeds was prominent, and it was necessary to identify ways to secure a future without enforced disappearances.
What exactly happened when proceedings were taking place at the local level, and was the State party considering cutting the response time?
Was the State party planning to accept the competencies of the Committee under articles 31 and 32 of the Convention?
RAINER HUHLE, Committee Member also serving as the Rapporteur for the report of Mexico, raised the issue of special laws applied in some States and asked about the hierarchy of laws in Mexico. Did the State party expect that it would be able to soon bring its legislation in line with the Convention? Translating the federal laws into state laws might be time-consuming. When could the results of such legislation be expected? The Expert also wanted to know if there was already a draft of the national law on enforced disappearances that the Committee could see.
Could it be expected that enforced disappearances be treated as a crime against humanity, in line with international standards?
A question was asked on the criminal responsibility of the hierarchical superior and its incorporation in future legislation. Was the offence of omission acknowledged as such?
Regarding the national registry of missing and disappeared persons, an Expert asked what the level of implementation was at the moment. Was there distinction between various categories of disappearances in the database? Were the persons who were found simply deleted from the database? The fact that they were found did not delete the crime of enforced disappearances as such.
Problems seemed to exist with the methodology, the Expert noted, and asked whether the delegation could provide a clear answer on how many enforced disappearances there were in the country as a whole.
The issue of disappeared migrants was brought up, as it represented a significant problem. Could specific examples be given of immediate actions taken to assist migrants at risk of disappearance? Was the DNA of disappeared migrants or their family members included in the Ante Mortem-Post Mortem database? That would admittedly be a challenge given the trans-boundary nature of the issue.
What guarantees did detained migrants have to ensure they could communicate with their families?
The delegation was asked to provide more details on the number of prosecutions for cases of enforced disappearances.
What happened if a member of the armed forces was disappeared by another military staff member? Was the issue dealt with by military courts or the Office of the Attorney General?
While the importance of the first 72 hours following a disappearance was stressed in the police and Attorney General’s protocols, the opposite seemed to have been happened in the case of the Ayotzinapa students. Local authorities had refused to take necessary action in the first days. When would those protocols be applied throughout the country?
How many investigations had been carried out on enforced disappearances across Mexico and what were the outcomes of such investigations, an Expert asked. Clarifications were sought on possible duplications and overlap between local, state and federal levels of responsibility.
A question was asked about looking into the cases of disappeared persons during Mexico’s so-called “Dirty War” in the 1960s and the 1970s.
Another Expert asked about the inclusion of civil society in the preparation of the initial report. She also raised the question of the direct applicability of the Convention to Mexico’s legal system. In how many cases, at the federal or local level, had the Convention been invoked by judges?
An Expert asked about the number of persons currently covered by the mechanisms designed for the protection of witnesses.
Could more concrete details be provided on granting interim protection measures by suspending public officials? How many public officials had been suspended thus far?
How many investigations into enforced disappearances had been carried out, and how many open investigations were there at the moment?
Another Expert wondered what efforts the State party was planning to undertake to improve consultations with civil society.
An Expert asked about the organization of the judiciary in Mexico’s federal system. Were there matters which fell under the federal level while others were under the jurisdiction of the 32 states? Was federal law applicable in all states? How was it ensured that national laws were in line with international treaties and the Convention in particular?
Responses from the Delegation
Responding to questions and comments, the delegation said that based on the 2014 constitutional reform, the Office of the Attorney General was being transformed into a constitutional autonomous body independent of the Federal Government. The new office would include a special unit for enforced disappearances, which would look into all human rights violations in that particular area. The Government was aware that there was a need for a special investigative unit to look into enforced disappearances. Torture would also be given further attention.
There were efforts underway to have a national training programme on dealing with enforced disappearances.
On the question related to the “Dirty War”, it was explained that the authorities were still in contact with families of persons who had disappeared from the 1960s to the 1980s.
It was explained that in December 2014, the National Security Council, bringing together representatives of all 32 states, had approved the creation of a systematic homogenous protocol for the investigation of enforced disappearances and torture. The protocol would be mandatory for all security, judicial and forensic offices working in that area. Contributions to the protocol had been received from family groups of missing persons.
The delegation stated that any governmental body aware of a disappearance had to start an immediate search, without undue delay.
Currently, there were 29 witnesses protected by the Office of the Attorney General. There had been 313 federal functionaries prosecuted and 13 sentences had been passed.
The delegation explained that the information provided by State prosecutors on enforced disappearances was not updated, based on the standardized procedures developed in 2014. The existing database was an instrument which still ought to be perfected. All attorneys and prosecutors needed to feed it with data and update it regularly.
Answering questions on migrants, the delegation said that the authorities had made moves to identify persons from abroad who had probably died in Mexico. The databases of Guatemala, El Salvador and Honduras had been pulled together with Mexico’s own database, and it had been decided to create a cross-border search mechanism.
On the issues related to legislation, it was said that there were three levels of government in Mexico: municipal, state and federal. Special laws governing specific areas could be both at state and federal levels. At the moment, enforced disappearances were an offence which could be dealt with at both levels. There were currently six states which did not cover enforced disappearances as a crime in their legislation. The general law on enforced disappearances needed to be applied in all parts of the country, and there would be a single listing and unified definition of the crime across the country. That constitutional reform had been presented by the President to the Senate, and it was hoped it would pass in the current session.
Providing further details on the future general law, the delegation said when the new definition was available, it would be possible to standardize various offences. The views of civil society would be taken into consideration in the standardization process.
It was explained that the Executive Commission for the Care of Victims had a very high level of autonomy, bringing together three levels of government, surpassed only by the Human Rights Commission. The Commission had immediate contact powers providing for multi-disciplinary care and held a register of victims which was complimentary with the national register. It had a fund for comprehensive reparation, in line with international standards. The Commission was cooperating closely with a number of civil society organizations.
When victims of enforced disappearances were military personnel, their cases had recourse to civil criminal jurisdiction. Military courts did not have prerogatives over enforced disappearances, but the investigation was guaranteed in the courts of a civilian judge and outside of military courts.
Regarding the Iguala case, where the start of the investigation had been delayed, the Office of the Prosecutor General had been informed in a timely manner of what was happening.
There was institutional practice to hold a prior dialogue with civil society before submitting State party reports, which was applicable to reporting to various human rights treaty bodies. The relationship between the State and civil sector was mature. The current report had been shared with non-governmental organizations somewhat late, but they would certainly play a more active role in the future, including through a working group.
The delegation said that all the jurisprudence of the Inter-American court was binding for Mexico.
The possibility for individual complaints to be submitted individually to the Committee was currently being seriously assessed at the federal level.
Questions from Committee Experts
An Expert returned to the issue of the “Dirty War”, asking what was happening with criminal prosecutions in such cases. What impact had the declassification of files had on investigations? Could the State do more to declassify further material?
The Committee would like to know whether there was a register of threats and violence perpetrated against families of the missing persons and human rights defenders. Was there a specialized body for the protection of relatives and witnesses? Were there different categories of protection?
Did those who pressed charges and security forces receive any kind of training with the view of ensuring that re-victimization did not occur?
Another Expert asked what would happen to state laws if they were not in line with the Convention.
While crimes of enforced disappearances were excluded from military courts, the Expert asked if there could still be crimes against humanity committed in military service.
An Expert asked where exactly in the report were the figures on enforced disappearances.
Responses from the Delegation
The delegation said that Mexico was assessing the whole issue of jurisdiction and individual complaints, but that did not mean that the State party was not providing protection measures for individual cases. The delegation reiterated that Mexico had decided to give full force to measures prescribed by the Inter-American Court of Human Rights.
The “fiscalia” office – Office of the Attorney General had been created in 2000, but had yielded results which were limited when it came to dealing with enforced disappearances. Because of that, reforms had been implemented, with the view of ensuring greater efficiency and better coordination.
A number of guidelines had been shared with the staff working with victims and witnesses. They included the obligation not to re-victimize and to protect those who had already suffered.
It was clarified that the Federal Law on the Protection of Victims was in place and in line with the current adversarial system. Measures for the protection of human rights defenders and journalists were also in place; 191 such persons and civil society organizations had been granted protection in 2014. It was hoped that the system would be further strengthened in 2015 through the publication of a number of handbooks, in cooperation with Freedom House.
Responding to a question on military jurisdiction over crimes against humanity, the delegation said that those could not be tried by military courts due to their seriousness.
On potential clash between federal and state laws, the delegation stated that the general federal law was applicable in all States, including the Federal District of Mexico City. The Federation could only do what the Constitution empowered it to do; all the general laws affecting human rights thus needed to go through Congress.
The delegation explained that the transition of Mexico to the adversarial judicial system should expedite the implementation of justice from 2016 onwards.
Should Mexico accept the Committee’s prerogatives under article 31, individual cases could be heard by the Committee in closed, private sessions? Could the Chairperson clarify whether the delegation’s understanding was correct?
Questions from Committee Experts
The Chairperson stated that State parties could optionally sign up to article 31, but the Committee believed that it was for the best if States accepted it. It was very important not to mix article 29 and article 31.
An Expert asked why investigations were not conducted into connections between organized crime and enforced disappearances.
The Expert noted that there were very few convictions connected to the “Dirty War” in Guerrero, so the question remained on the legal follow-up. Was this not a time to get to the bottom of that long-lasting issue?
What was currently being done with regard to relatives of missing migrants?
What was the time frame for the implementation of the investigation protocol? When was it likely to be implemented, the Expert inquired.
Responses from the Delegation
The delegation said that out of 44 States parties to the Convention, 19 had recognized the competences of the Committee under article 32, while others had not. It was a new human rights regime, still in the making, so more time should be given to the process. There was a hierarchy to various bodies to which Mexico belonged, with the Inter-American Court’s decisions being binding for Mexico. Individual complaints from Mexico were sent to the Inter-American Court after domestic measures were exhausted.
Regarding the Iguala case, the delegation explained that the representatives of the Attorney General were present when the first 28 bodies had been found. So far, 12 bodies had been identified through DNA samples. Five Iguala municipal police officers had been arrested, and six more cases were pending. The State was doing everything possible to ensure that all involved would be prosecuted. The Office of the Attorney General had been acting responsibly throughout the case, and the investigation was still underway.
Answering the question on the standard protocol, it was said that the National Security Council would be meeting in the coming six months. Once it was adopted, it would be applied throughout the State party.
With regard to migrants, the delegation said taking of samples in Honduras and other areas would be organized. Information on disappeared migrants would be included in the Ante Mortem-Post Mortem database.
Much of the protection granted to families of missing persons was going through the protection of human rights defenders, as they often became defenders in the process.
The delegation explained that the involvement of the armed forces was temporary in nature, and was going hand in hand with the strengthening of police forces. Five thousand officers had joined the Gendarmerie recently; there were currently 45,000 law enforcement officers nationally, which was still not enough for the country of 120 million inhabitants.
Questions by Experts
An Expert asked whether Mexico could provide information on some legal aid treaties that it had with other States.
More information was sought on registers at the state and local levels, and if they were any different from the one at the federal level. How about records in migrant-holding centres?
Was holding somebody in pre-trial detention exposing them to being at a larger risk of enforced disappearance? What was the state of play when it came to reforms related to decreasing the duration of pre-trial detention, known as arraigo?
Another Expert raised the issue of the rights of victims, asking what happened to those who had disappeared before the passage of the Victims Act. On immediate assistance and first contact, what would victims without access to the Internet do in case of emergency? How did the victims themselves participate in those processes – was their role more active or more passive?
Returning to the issue of the victims from the 1960s and 1970s, what kind of remedy did they receive? What was preventing the State party from providing remedies to the remaining victims from that period?
Would the national genetic system mentioned by the delegation coexist with the Ante Mortem-Post Mortem system, or would it be one and the same thing?
Why were copies of the relevant documents not given to the victims and their relatives, given that they were entitled to have access to them?
An Expert brought up the issue of the Iguala event again, and asked what the authorities were doing with the remains found in graves on a weekly basis. What was the State party doing to support victims’ relatives in their search there?
Was the Government ready to take on board pertinent recommendations by the national Human Rights Commission?
A question was asked on the draft general law on enforced disappearances – would it require further legislation to make it operational? What was the current status of the Search Protocol?
Turning to enforced disappearances of children, an Expert expressed concern over the vulnerabilities of migrant children, who could fall victim to trafficking and sexual exploitation. What was being done in that regard? Would enforced disappearances of children be included in the general law?
Another Expert asked for details about non-refoulement.
What provisions were there in place for informing relatives of detained persons of their detention? Was there a defined timeframe? If a person was transferred, how was that communicated to the relatives?
An Expert wanted to know if there were any specific training courses on the Convention and how it could be ensured that such training would be held at all levels of government.
A question was asked about the distinction between victims of crimes and victims of violations of human rights, especially when it came to reparations.
How many victims of enforced disappearances had been assisted, an Expert asked.
How many of the 33 bilateral extradition treaties included enforced disappearance as an offence leading to extradition, another Expert inquired.
With regard to the “Amber Alert” procedures, what were the exact criteria necessary to activate the procedures?
Responses from the Delegation
Regarding extraditions, a delegate said that they were carried out in line with international treaties signed by Mexico. Over the previous two decades, Mexico had seen significant changes between international commitments made by Mexico and respect for human rights. Extradition treaties were not limited to a particular crime.
On international legal assistance, it was explained that Mexico had legal treaties with a number of countries, and was closely cooperating with both Latin and Central American countries on identifying persons.
Arraigowas used only for organized crime, for the duration of 40 days to the maximum of 80 days. The rationale was to ensure the suspect’s presence during the investigation and to protect the victims. In practice, the number of days somebody was held was significantly less than 40 days, and the overall number of persons held in pre-trial detention had decreased. There was currently only one arraigo centre. A new criminal justice system would be in force in 2016.
The Office of the Attorney General had a sub-office dealing with missing children and thus with the “Amber Alert” project. That alert was immediately activated by the Office whenever needed and social networks were actively used in the search-and-rescue system. Migrant children themselves were not criminalized. Training was provided to staff so that they could help unaccompanied migrant children.
With regard to Search Protocols, it was said that searches were carried out in hospitals, forensic centres, hostels, etc., with information provided by telecommunications and banking companies, while geolocations were also provided. It was hoped that the National Security Council would approve a unified Protocol within six months.
Answering questions on graves in Iguala, the delegation explained that DNA samples had been taken from some 500 families who had approached them. Thus far, some 42 sets of bodily remains had been recovered. The authorities were committed to a comprehensive visit plan.
A delegate said that thousands of public officials had been provided with training on rehabilitation programmes.
The general act on victims assistance had a provision that the employer had to keep the work place of a missing employee until he was found.
A person who was detained should not necessarily be considered a missing person, the delegation stressed. National law enforcement agencies kept an updated registry of detained persons.
The delegation explained that not all States had a declaration on missing persons, which was why the federal general law would include such a provision.
The Ministry of the Interior was responsible for the coordination of health, education, social development and other issues related to reparations of victims. The aim was to have the lives of victims put back on track. All necessary medical assistance was provided to those victims who needed it. In judicial proceedings, all victims had the same rights as the accused, including the right to a lawyer.
Answering questions on reparations for victims of the “Dirty Wars”, it was explained that delays were due to the passage of time and difficulties in establishing the whereabouts of the families.
The definition of a victim had been adopted by 20 states, while 12 states had yet to do so. All states should bring their legislation in line with the national standards. The Law on Victims was retroactive and meant to apply to victims of past acts; there was no time limit. The same treatment was granted to the victims of enforced disappearances and human rights violations; there was no upper limit of the amount of money which could be paid to victims of human rights violations.
Federal laws were applicable to military personnel, it was clarified. There was no privilege involved in being held in military prisons. A human rights education programme 2014-2018 was in place for members of the armed forces.
The delegation stated that provisions from international and regional conventions were directly applicable and did not need to be placed into federal or local legislation. Judges were becoming gradually familiar with the sphere of international law, and a new generation of judges were being trained on being familiar with and understanding treaties.
A delegate said that the Federal Criminal Code and local criminal codes did not provide for statute of limitations when it came to serious crimes – war crimes and crimes against humanity.
Questions by Experts
An Expert asked about restrictions on access to information. What were the exceptions in allowing access to information when it came to the crimes of enforced disappearances?
Would arraigo be fully suspended with the reform in 2016, the Expert wondered.
A question was asked on how a person’s identity was ascertained, given that citizens were not obliged to carry an identification document.
Were there two different protocols – one for search and one for investigation - or were those one and the same protocol?
Another Expert asked for an estimate of the number of not yet exhumed graves in Iguala.
Would it not be better if victims had one single centre to go to, after which their issues could be followed by respective agencies?
A question was asked on the participation of victims in care-and-support mechanisms. There seemed to be many formal requirements for documentation, especially for the migrant population. Could some of those requirements not be dispensed with, having in mind the real needs of victims?
Responses from the Delegation
The delegation clarified that arraigo would not disappear when the new criminal justice system entered into force.
The protocol was one and the same and it would contain a whole range of activities, including search and investigation.
The work on the Iguala graves was recent, with 135 cases being cleared up and 44 bodies found.
Regarding transparency, the delegation said that there was an autonomous transparency body. It was not allowed to withhold information in cases of serious crimes and crimes against humanity. Public interest prevailed, and information had to be made available.
The administrative registry of detainees was immediately updated with details by respective municipal authorities. Due to numerous local subdivisions, there was a need for cooperation between various levels of government. Efforts were being made to connect various police subdivisions, which was yet to be fully rolled out.
RAINER HUHLE, Committee Member and Rapporteur for the report of Mexico, noted that the meeting had generated unprecedented interest, and hoped that the interest into this very serious problem in Mexico would be continuous. He thanked the delegation of Mexico, as well as representatives of civil sector and families of missing persons. Follow-up recommendations would be forward-looking, and the Committee stood ready to provide further support to the State party and assistance to the victims.
ELIANA GARCIA LAGUNA, in charge of the Deputy Attorney General’s Office for Human Rights, Crime Prevention and Community Services at the Office of the Attorney-General, stated that the meeting was part of the ongoing process of strengthening institutional capacities and dealing with the problem which was fully acknowledged by the Office of the Attorney General. She thanked all Committee Members for contributing to the fruitful discussion.
JUAN MANUEL GOMEZ ROBLEDO, Undersecretary for Multilateral Affairs and Human Rights at the Ministry of Foreign Affairs, said that the delegation would not be able to leave Geneva happy about the job well-done, because the job was not done yet, but it was aware of the challenges lying ahead and was fully committed to take them on. The State party stood convinced that every interaction with international treaty bodies had a positive effect on the domestic agenda. It was hoped that the discussion would help Mexico improve its domestic standards. The fact that the Chair of the National Human Rights Commission was present with the delegation was important and unprecedented. He thanked the civil sector for their active participation.
EMMANUEL DECAUX, Committee Chairperson, said that the dialogue had been substantive and fruitful. The Committee was deeply touched by the presence of the families of the victims, whose presence had rendered the meeting more relevant. The meeting was only a part of a joint journey.
For use of the information media; not an official record