New transparency rule comes up against legal fragility – 02/23/2023 – Power

The new rules of the CGU (Controladoria Geral da União) for the application of the LAI (Law on Access to Information) bring advances, but are still insufficient to prevent the misuse of legislation, as happened in the government of Jair Bolsonaro (PL ).

The evaluation of organizations that work with law enforcement is that the fragility of the package of 12 guidelines lies in the non-mandatory nature of the recommendations, released at the beginning of the month together with the announcement of the review of 234 cases of secrecy imposed by the previous government.

The guidelines now made by the CGU are directed at federal civil servants and can support resources in the face of new denials of access. An example is the guideline on “unreasonableness of the request”, which guides public bodies and entities to present the risks or evidence the lack of resources when using this argument to deny the information.

According to the CGU, these guidelines support the body’s decisions and can be used by applicants to ensure their access to information. In case of non-compliance, a procedure may be forwarded to the Federal Internal Affairs Office to determine possible responsibility.

However, some experts consider that more effective measures will need to be taken to avoid undue denials in cases involving personal information, as happened in the Bolsonaro administration, marked by the so-called hundred-year secrecy, the result of a misinterpretation of Article 31 of the LAI .

In the guideline on personal information, the CGU says that the fact that documents and processes contain such data is not sufficient to generally deny a request for access. The guideline is to protect sensitive data, using stripes, for example, and make the rest available.

President of the Forum on the Right of Access to Public Information, Kátia Brembati mentions that in March last year, in order to avoid denials based on the LGPD (General Law for the Protection of Personal Data), the CGU had advised that the law was compatible with the LAI , but the problem continued.

“The utterance [diretriz] last year was not enough and it seems that this one will not be either, because, when it arrives at the base server, it looks at article 31 and the LGPD and has at times a fear of infringing the law itself and at times a misunderstanding of what means this legal basis”, he says.

Brembatti claims that the fragility of these guidelines will become clear if non-compliance is repeated after the announcements by Minister Vinícius de Carvalho. Changing that will take training and political will, he says.

Marina Atoji, director of programs at the NGO Transparência Brasil, says that the guidelines mitigate the problem, but are not enough to prevent the LAI from being breached.

For this, she says that it is necessary to establish a damage test through a decree or ordinance. The procedure would serve to determine whether the harm that could be caused by the disclosure of information is greater than the public interest involved. Based on this analysis, the server can decide whether to grant access.

Lawyer Bruno Morassuti, co-founder of the agency Sejam Sabendo, says that the guidelines represent the beginning of a deeper process of reviewing policies on access to information by the government.

“It is an act of the CGU and not a determination of the president. It would be important that we somehow include these statements in the decree that regulates the Access to Information Law and, eventually, in the LAI itself”, he says.

Another possible way, he adds, would depend on the dialogue between the Presidency of the Republic, AGU (Attorney General of the Union) and PGU (Attorney General of the Union) to issue a rule that would apply to the entire federal administration.

The alteration of Decree 7724 of 2012, which regulates the LAI, would also demand an action from Lula, while the alteration of the law would be in charge of the National Congress.

The CGU says that it does not rule out the future incorporation into the decree, but that there is no referral in this regard because the force for compliance with the guidelines will be given by the CGU’s power to review, on appeal, the decisions that may be in conflict with the recommendations. The body also states that it created a board responsible for monitoring the application of the LAI in the Federal Executive and that it acts in the training of federal bodies so that the understandings are incorporated.

Despite this, the change in orientation adopted by the CGU so far is viewed positively. Danielle Bello, Advocacy and Research coordinator at Open Knowledge Brasil, says that there is a careful movement to distance itself from political speeches and good signals for states and municipalities.

Bello sees no need to change the LAI. For her, effective action by the CGU in the process of training employees and monitoring compliance with the guidelines is enough, especially in bodies that tend not to follow the LAI, citing the Itamaraty as an example.

One of the guidelines states that telegrams, dispatches and telegraphic circulars produced by the Ministry of Foreign Affairs are also subject to the LAI’s general rule that access is the rule and confidentiality is the exception.

The CGU states that the guidance addresses this issue by providing an important reinforcement for transparency in this body.

This principle, says Marina Atoji, from Transparência Brasil, was not followed in the drafting of the guideline on entering and leaving official residences. The text states that such information must be protected due to “aspects of the intimacy and private life of public authorities”, except in the case of official agendas or private agents.

“It has to be the opposite, because even if they are informal meetings or visits, it is in the public interest to know who goes to the president’s house”, he says.

The CGU says that, despite the criticism, the sentence order does not change the main content that the registration information is public.

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LAI AND SECRETS

The LAI (Access to Information Act) defines confidential information as that which has access to the public temporarily restricted as it represents a risk to the security of society or the State. Transparency is the rule and secrecy the exception.

Any person can make a request for access to information to bodies of the Executive, Legislative, Judiciary and Public Ministry and also to private non-profit entities that receive public money to carry out projects.

The LAI establishes a deadline of up to 20 days for a response. The denial of access must be justified and an appeal may be made within ten days.

WHAT DOES THE LAW SAY

According to the LAI and the decree that regulates the law, there are three degrees of secrecy classification that can be adopted for information that jeopardizes the defense and national integrity, the life of the population, the financial integrity of the country and intelligence activities, among others. other cases. Are they:

• Top secret: 25-year secrecy that can be determined by the president and vice president, ministers and authorities with the same prerogative, commanders of the Armed Forces and heads of diplomatic and consular missions
• Secret: 15 years secrecy. In addition to the aforementioned authorities, it may be determined by holders of autarchies, foundations, public companies and government-controlled companies;
• Reserved: 5 years secrecy. It can be determined by the authorities mentioned and by those who exercise direction and command functions.

In addition to classified information, the law provides for secrecy until the end of the mandate for information that may endanger the safety of the President and Vice President of the Republic, spouses and children.

The Sigils of a Hundred Years

There is no so-called hundred-year secrecy in the Freedom of Information Act. The maximum period of restriction provided for by law is 25 years for top secret information. Transparency experts say that the recurring term during the Bolsonaro administration came from the distorted interpretation of a device in Article 31 of the law.

The excerpt says that personal information that reaches someone’s intimacy, private life, honor and image can have their access restricted for up to one hundred years.