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Access to Public Information in Brazil: What Will Change With Law No. 12.527/2011?

Source: freedominfo.org

Date: 16 May 2012

By Marcelo Sarkis

Sarkis is a lawyer, Institutional and Governmental Affairs at ALCÂNTARA&HOLSTAD International Consultancy, Brasília – Brazil. www.alcantaraholstad.com

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. (Art. 19 The Universal Declaration of Human Rights)

In Brazil, the right to access information, besides being protected by the Universal Declaration of Human Rights, was the object of commitment in various international treaties and conventions, including the UN Convention against Corruption (Articles 10 and 13), the American Declaration of Principles on Freedom of Expression (item 4) and the International Covenant on Civil and Political Rights (Article 19).

Internationally, it should be noted that Brazil participates in the Open Government Partnership, an initiative aiming to secure commitments from governments in the areas of transparency promoting, combating corruption, social involvement and development of new technologies.

In turn, in terms of law, as in other democratic countries, the Constitution of the Federative Republic of Brazil, promulgated in 1988, establishes a comprehensive legal framework of rights and guarantees, ensuring by the heading of art. 5, that all are equal before the law, without distinction whatsoever, guaranteeing Brazilians and foreigners residing in the country the inviolable right to life, liberty, equality, safety and property.

However, for foreigners to better understand the Brazilian legal context, it is necessary to remember that before democratization, Brazilians lived for 21 years under a military dictatorship. The country is therefore still working to remove the last vestiges of secrecy from this period of exception.

In this sense, the major regulatory framework will come into force on May 16 2012: Law 12.527/2011, available in Portuguese at: http://bit.ly/JS437F.

Implementing Three Rights

The key point of the law is the regulation of the three rights already provided by the Constitution of1988 that have not yet been exercised because of their dependence on its instrumentalization. In free translation, they are:

1 Everyone shall have the right to receive information of own interest or of public interest from public entities, which shall be given within the time prescribed by law, subject to liability [...]; (See item XXXIII of Art. 5).

2 The law shall regulate the forms of direct or indirect user participation in public administration, especially regulating: The users’ access to administrative records and information about acts of government [...]; (See section II, § 3 of art. 37).

3 Public administration also refers to, as provided by law, the management of governmental information and arrangements to make available documents of the Brazilian Cultural Patrimony (See wording of § 2 c / c heading of art. 216).

As we see in the explanatory material below, despite problems of implementation, it is a well-received innovation. There is hope that it will create a new culture in which public data is available to all society. In other words, citizens will have the opportunity to know about government decisions and high politics.

In the present context of prosperity, the best trademark for the country that the Brazilian Government can leave for its people is the hard work in combating corruption, and transparency is an important mechanism to achieve this goal.

Get to Know Law No. 12.527/2011

The Act aims to ensure access to public information, providing objective measures, being agile, clear and easy to understand.

End of eternal secrecy: It is the end of the so called eternal secrecy, in which public documents had an indefinite period of confidentiality.

Who must comply? The Union, the 26 states, the Federal District, the 5,565 cities, all Brazilian public bodies under direct administration of the Executive, Legislative and Judiciary, and even prosecutors, the Courts of Accounts, local authorities, trusts, public enterprises, societies of mixed economy and entities that receive public money.

General Law: The law applies to the Union (Federal Executive Power). The 26 states, the FederalDistrict and the Cities, in their own legislation, under the general rules set forth in this Law, should define specific rules adapted to their regional realities.

Guidelines: Publicity is now the rule and secrecy the exception. The culture is active transparency, in which information should be published regardless of request. The administration uses the internet and IT resources, promoting the culture of transparency and developing the social control over their activities.

Minimum information: Web sites should contain: a) a record of competence and organizational structure, addresses and telephone numbers of the respective units and working hours for the public; b) records of any passing or transfers of financial resources; c) records of expenses; d) information concerning bidding procedures, including the respective notices and results, as well as all contracts; e) general data for the monitoring of programs, actions, projects and works of agencies and entities; and f) answers to frequently asked questions from the society.

About the application: The application must contain information identifying the applicant and specifying the required information.

Lack of motivation: It shall not be necessary to justify the reason for the requested information.

Management Response: The administration should provide the information immediately if it is available. If it is not available, the information must be provided within a period of twenty days, renewable for another ten days.

Right to Appeal: When information is not granted, the reason for the refusal of access may be appealed against within ten days.

Appeal Response: The superior authority of the entity that denied information must also respond within five days.

Restrictions on access of information: The law will continue to preserve the secrecy of taxation, banking and industry arising from direct economic activity by the state, a private person or entity that has ties with the government.

Human Rights: Information or documents dealing with behaviors that involve human rights violations committed by public officials or under the orders of a public authority may not be subject to restricted access.

Society and the State Safety: The law continues to protect data and documents crucial for the security of society and the State.

Risk to the society’s security: Life, health and safety for the population.

Risk to national security: Defense; sovereignty; integrity of national territory; the conduct of negotiations or the country’s international relations, or those that have been provided on a confidential basis by other states and international organizations; strategic plans and operations of the Armed Forces; financial stability, the country’s economic and monetary policy; intelligence activities; inspections and investigations, ongoing research projects and scientific or technological development; information that may endanger the safety of an institution or senior officials of national or foreign origin and their families.

Levels of confidentiality: The information held by public bodies and agencies, subject to its nature and its importance to the safety of society or the state, may be classified as top secret, secret or Reserved.

Time limits of confidentiality: (i) reserved documents can be kept confidential for 5 years, (ii) secret documents can be kept confidential for 15 years, and (iii) top secret documents can be kept confidential for 25 years.

Published: After these deadlines, the information must be “automatically” published, with the exception of top secret documents, which may have the secrecy extended once more. Therewith, the maximum confidentiality of documents is 50 years.

Note: The law indicates how the classification of information should be done, points out the competent authorities and provides liability for breaches of the law.

Critical Point: The critical point is its regulation, i.e., let the good intentions leave the paper and transparency become the practice! The preparations took six months, a period considered too short for most public managers because even though the information already existed it must be organized and selected, which requires time, training of personnel and investment in resources.

Serviço de Informações ao Cidadão (SIC): From day 16, in addition to its own rules in the limit of jurisdiction, each agency must create their proper Citizens Information Service.

Conclusion: It is to be expected  that the law will be implemented gradually, with some specific resistance, up to the moment when transparency has become a permanent culture!

There is a strong commitment by the government for Brazil to be recognized as an example of democratic maturity, willing for development and capable to provide a safe business environment.

Discover the work of some organizations:

• http://www.opengovpartnership.org;

• http://www.cgu.gov.br;

• http://www.informacaopublica.org.br;

• http://www.acessobrasil.org.br;

• http://www.portaldatransparencia.gov.br;

• http://www.transparencia.org.br;

• http://www.access-info.org;

• www.globalintegrity.org;

• www.iwatchnews.org;

• www.transparency.org

Historical data: “The first nation in the world to develop a legal framework on access was Sweden in 1766. The United States approved its Freedom of Information Act, known as FOIA (Freedom of Information Act), in 1966, and has received since then different amendments aimed at its adaption to the passing of time. In Latin America, Colombia was a pioneer in 1888 establishing the Code that gave access to governmental documents. Today the law in Mexico, from 2002, is considered a reference having foreseen the establishment of fast systems for access, monitored by an independent organ. Chile and Uruguay, among others, have also approved laws for the access of information”.

Source: Controladoria Geral da União.