Government changes rules for access to documents with 100-year secrecy

Brasilia DF) – President Luiz Inácio Lula da Silva signed, this Tuesday (16), three decrees dealing with transparency and access to public information. Among them is the text that updates the regulations of the Law on Access to Information (LAI) (Decree No. 7,724/2012) and makes changes in relation to the 100-year secrecy established for personal information related to intimacy, private life, honor and to the image.

According to the Comptroller General of the Union (CGU), the measure clarifies how the protection of personal information must be reconciled with the right of access to information.

The current decree determines that access to this information is restricted to legally authorized public agents and the person to whom it refers, regardless of classification of secrecy, for a maximum period of 100 years from the date of its production. According to the CGU, the new decree maintains this understanding, but adds that this does not imply a restriction on the entire content of the document, in case it is the subject of a request for public access.

“Thus, whenever feasible, the public body or entity must conceal, anonymize or pseudonymize personal information relating to intimacy, private life, honor and image, guaranteeing access to the rest of the document”, explained the CGU .

The signing of the acts took place during an event promoted by the Comptroller General of the Union (CGU), in Brasília, in celebration of the 11th anniversary of the Law on Access to Information (LAI). For President Lula, transparency is essential so that the government “does not get sick”.

“Transparency does not let the public machine die, little by little, in decisions taken behind closed doors or in actions that no one has the decency to explain. It does not allow data and documents that could save lives, which could help citizens to exercise their rights, to remain under lock and key in some drawer of a public body. For this reason, commemorating the 11th anniversary of the Law on Access to Information, the LAI, is celebrating the light that gives life and preventing diseases in the State, is reaffirming that the whole of society has the right to see, clearly and what the shadows of authoritarianism and technocracy want to hide,” said Lula.

The second decree signed by the president deals with the Transparency, Integrity and Combating Corruption Council and the third creates the Integrity, Transparency and Access to Information System and the Transparency and Access to Information Policy of the Federal Public Administration.

review of secrecy

During his government, former president Jair Bolsonaro imposed 100-year secrecy on several documents, such as his own vaccine card and on the schedule of visitors to the Planalto Palace.

“Our people and our institutions no longer tolerate obscurantism and secrecy,” President Lula said today. “Almost 35 years after the promulgation of the 1988 Constitution, we are still faced with the shadows of the past, with people who believe that the State belongs to an elite dissociated from society, with authorities who believe that they should not be accountable to anyone. But the truth is that without transparency there is no democracy. And access to information, as a fundamental right provided for in our Constitution, needs to be increasingly present in the lives of every citizen and in the culture of every public agent,” he added.

Upon taking office, on January 1, President Lula determined the review of acts of the previous government that imposed undue secrecy on publicly accessible documents. The LAI update is also a result of this review and, this Tuesday, the Comptroller presented the final balance of the works.

252 emblematic cases of denial of access to information were examined. According to the folder, in most of them, the imposed secrecy was reversed and the information was delivered to the applicants. With the review, the folder prepared a technical opinion and 12 statements (set of guidelines) to prevent mistaken decisions about secrecy from occurring again.

Some examples of matters that were opened after the CGU’s review are the payroll loan from Auxílio Brasil during the second round of the presidential elections; the operation of the Federal Highway Police in the second round of elections; expenses with the corporate card of former presidents between 2003 and 2022; former president Jair Bolsonaro’s vaccination card; the Ministry of Health’s stock of vaccines and medicines; the list of visitors to the palaces; and completed disciplinary administrative processes, such as that of the former Minister of Health and Army General, Eduardo Pazuello.

LAI update

In addition to changing information classification procedures, the new LAI regulation decree aims to strengthen the CGU’s role in monitoring and supervising the law within the Executive branch. The text foresees that the folder can define complementary procedures necessary for its implementation, with the edition of statements.

“When approved by the Minister of the CGU and published in the Official Diary of the Union, the statements will have a binding effect on the bodies and entities of the federal Executive Branch”, explained the folder. The regulation also provides that the Comptroller should propose measures or issue a warning to bodies and entities in case of non-compliance with the LAI.

It will also be incumbent upon the CGU to maintain a specific electronic system for registering and responding to requests for access to information, available on the internet and mandatory for use by bodies and entities. The system already exists, FalaBR, and is incorporated into the routine of government bodies and entities.

“The mandatory use of the electronic system does not exclude the possibility that bodies and entities make use of their own systems for the organization of internal flows for processing requests for access to information. It is also important to clarify that the existence of an electronic system does not compromise the exercise of the right of access to information, since it follows the obligation of face-to-face assistance to citizens, through the Citizen Information Services”, explained the CGU.

Another point dealt with by the new decree concerns the protection of the identity of the information requester. The rule provides that the plaintiff chooses, if he so wishes, to preserve his identity to the defendant bodies or entities. According to the CGU, applicant protection has already been implemented in the electronic system of the citizen information service since 2018, and resulted from a commitment signed by the CGU in the 3rd Open Government Action Plan of Brazil. The new text, in this case, also reinforces and formalizes an existing practice.

social participation

President Lula also signed the decree establishing the Transparency, Integrity and Combating Corruption Council, replacing the current collegiate. The new group now includes the participation of civil society entities in the formulation of public policies and guidelines on topics within the competence of the CGU.

The new body will be presided over by the Minister of the CGU and composed of 11 representatives of ministries and up to 30 members of civil society organizations and entities, collectives, social movements, Brazilian citizens of civil majority, proven suitability and recognized performance in themes related to the collegiate . Board members will serve a two-year term and may be reappointed.

According to the portfolio, the council also makes progress by enabling the discussion of broader guidelines for action that adhere to the new structure of the CGU, such as combating corruption; social control for monitoring and supervising the application of public resources; open government, transparency and access to public information; private integrity; public integrity; and monitoring and evaluation of public policies and public services.

transparency policy

The last decree establishes the System of Integrity, Transparency and Access to Information and the Policy of Transparency and Access to Information of the Federal Public Administration. The objective is to consolidate fundamental principles and guidelines on public transparency that must be observed in all federal government actions, whether by direct or indirect administration, including state-owned ones.

The transparency policy defines objectives to be achieved, enables better measurement of results and encourages the dissemination of public transparency to improve management and public services throughout the national territory. In addition, it seeks equal and quick access to information to society and encourages social participation.

*With information from Agência Brasil

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