To ensure greater transparency on public accounts and public services in general, especially after initiatives such as the Transparency Portal, Law 12,527 of November 18, 2011, the Brazilian Freedom of Information Act, was sanctioned. This Act aims to provide access to even the greater public to information regarding Public Administration, regulating Article 5, Item XXXIII, Article 37, Paragraph 3, II and Article 216, Paragraph 2, from Brazilian Constitution of 1988.
This Act covers all entities of the Federal Government, States, Municipalities, and the Federal District, as well as the respective public bodies. It also extends to entities of the Federal Agencies, that is, autonomous agencies, public foundations, public companies, mixed-capital companies, and other entities directly or indirectly controlled by the Federal Government as above.
By granting access to information, this law ensures the following rights to interested parties:
I – guidance on the procedures for obtaining access, as well as on the location in which the desired information can be found or obtained;
II – information contained in records or documents, either produced or accumulated by its bodies or entities, collected from public archives or otherwise;
III – information produced or held by an individual or private entity resulting from any relationship with its bodies or entities, even if this relationship has already ended;
IV – primary, complete, authentic, and updated information;
V – information on activities carried out by bodies and entities, including those relating to their policy, organization, and services;
VI – information pertaining to the administration of public assets, use of public resources, bidding, administrative contracts; and
VII – related information:
a) the implementation, monitoring, and results of programs, projects, and actions by public bodies and entities, as well as targets and indicators thereof;
b) the results of inspections, audits, renderings, and accountability carried out by both internal and external control bodies, including rendering of accounts for previous years.
Although access to information occurs, as a rule, by means of a request from interested parties, the law provides that the Federal Government has the obligation to disclose, in an accessible manner and within the scope of its competences, information of collective or general interest produced or held thereby. This must be done within the following requirements:
7. records ofcompetences and organizational structure, including addresses and telephone numbers of the respective units and opening hours;
8. records of any transfers of financial resources;
9. records on expenses;
10. information concerning bidding procedures, including the respective notices and results, as well as all contracts entered into;
11. general data for monitoring programs, actions, projects, and works by bodies and entities; and
12. answers to society's most frequently asked questions.
Access to public information will be made possible through the following measures:
(v) service and guidance regarding access to information to the public;
(vi) information on the processing of documents in their respective units;
(vii) protocoling of documents and requests for access to information;
(viii) holding hearings or public consultations, encouraging popular participation or other forms of disclosure.
It is important to highlight that the service is free and immediate. When an interested party requests access to information, the authorization or granting of such access must be granted immediately. If there is any impossibility or if the immediate deadline cannot be met, the deadline for response should not exceed 20 days, although the Act allows a justified extension for 10 more days. If it is not possible to provide such information, the reasons of fact or law for such (total or partial) refusal of the intended access must be indicated, also communicating to the interested party that the requested information is not held therein. Also, in cases where the body does not have the information, it must indicate, if known, which body or entity holds such information.
In the event of denial of access, the interested party may submit an appeal within 10 days addressed to the authority hierarchically superior to the one that denied access, which will have 5 days to manifest itself. Once the denial is confirmed, only then will the interested party may resort to Brazilian Office of the Comptroller General (CGU), which will have 5 days to manifest itself. If the denial is confirmed by the CGU, the interested party will be left to appeal to the Joint Commission for Information Reassessment.
However, there are restrictions on access to certain information. These restrictions are listed below:
1. Information which jeopardizes national defense and sovereignty or the integrity of the Brazilian territory;
2. Information which harms or jeopardizes the conduct of negotiations or the country's international relations, or information which has been provided confidentially by other States and international organizations;
3. Information which jeopardizes the life, safety, or health of the population;
4. Information which jeopardizes the country's financial, economic, or monetary stability;
5. Information which harms or jeopardizes the Armed Forces' strategic plans or operations;
6. Information which harms or jeopardizes scientific or technological research and development projects, as well as to systems, assets, facilities, or areas of national strategic interest;
7. Information which jeopardizes the security of institutions or high national or foreign authorities and their family members; or
8. Information which compromises intelligence activities, as well as ongoing investigation or inspection, related to the prevention or repression of infractions.
In addition to the information listed above, the Freedom of Information Act preserves the secrecy of information classified as confidential under other laws.
This information, depending on its criticality, can be classified into three levels: top secret, secret, or reserved. In this case, top secret information may have its access restricted for 25 years and may only be classified as such by the following authorities: the Brazilian President, the Brazilian Vice-President, State Ministers and authorities with the same prerogatives, Commanders of the Navy, Army, and Air Force, as well as Heads of Permanent Diplomatic or Consular Missions abroad. Secret information, on the other hand, have its access restricted for 15 years and may be classified as such by all the entities above, in addition to all directors of autarchies, foundations, or public companies, as well as mixed economy companies. Finally, reserved information has a protection of 5 years, and may be classified as such by all those mentioned above, in addition to authorities who exercise functions of direction, command, or leadership, DAS level 101.5 or higher of the Higher Direction and Advisory Group, as well as of equivalent hierarchy, in accordance with the specific regulations of each body or entity.
Interested parties may request a review of the classification of information considered as top secret, secret, or reserved. This may also be done by the ex officio authority, with the reassessment being carried out by the classification authority or by a hierarchically superior authority, aiming at potential declassification or reduction of the secrecy period. If there is a refusal, one may appeal to the State Minister for the area, without prejudice to the powers of the Joint Commission for Information Reassessment.
With regard to personal information relating to intimacy, private life, honor, and image, access will be restricted regardless of secrecy classification and for a maximum period of 100 years from its date of production. Only legally authorized public agents and the person to whom they relate have the right to access them. However, such information may have its disclosure or access granted by duly authorized third parties in the face of legal provision or express consent of the person to which they relate. It is important to remember that the Brazilian General Data Protection Act (LGPD) was sanctioned only in 2018.
In 2017, an extensive study was conducted on the judicialization involving 250 judgments and the access to information law. Some interesting conclusions were reached:
– 77% of the cases were filed with authorities of the Executive Branch with 192 judgments, while authorities of the Legislative Brach had 33 judgments and those the Judiciary Branch had only 6 judgments, leaving out 20 that did not fit only one of the powers.
– Of all the cases, 185 were against a municipal authority, 39 against a state authority, 19 against a federal authority, 2 against a district authority, and 5 did not apply to a single entity.
– The most frequent themes that served as a reason for judicialization were: 71 cases for the disclosure of remuneration of public servants, 36 cases of civil servants, commissioners, and public tenders, 32 cases of contracts and tenders, 31 cases of expenses, works, projects, and public properties and 28 cases on the implementation of the Freedom of Information Act, the remainder divided into various topics such as parliamentary activities, public security and so on.
– Regarding the type of suit, 50% were in the form of a writ of mandamus, 25% as an suit for compensation for general damages, 7% as bids to the supreme court original jurisdiction, 4% as a public civil suit and 14% in the form of other suits.
– With respect to merits, the Brazilian Supreme Court upheld all 4 suits, the Brazilian Superior Court of Justice upheld 10, dismissed 3 and partially upheld 1, the Federal Regional Court of the 3nd Region upheld 7 and dismissed 3, the Rio de Janeiro State Court upheld 21 and dismissed 2, and the Sao Paulo State Court upheld 151, dismissed 40 and partially upheld 8.
– Finally, with respect to the length of proceedings per court, the average was 2 years and 8 months in the Brazilian Supreme Court, 1 year and 10 months in the Brazilian Superior Court of Justice, 3 years in the Federal Regional Court of the 3nd Region, 7 months in the Rio de Janeiro State Court and 8 months in the Sao Paulo State Court.