TSE claims judicial secrecy and denies data 1 year after election – 11/12/2023 – Power

Almost a year after the end of the electoral process, the TSE (Superior Electoral Court) does not provide general data on how the resolution was implemented which, ten days before the second round, expanded the court’s powers to remove and block online content.

The court denied a request for access to information requesting general data on the use of the resolution, such as total posts, videos, profiles, accounts and groups blocked or removed. No specific information was requested about the processes, nor about their contents.

Via the Ombudsman’s Office, the Special Advisory for Combating Disinformation responded that: “By court order, the procedures in question remain, until now, under judicial secrecy, applying, in particular, the provisions of article 22 of law 12,527/ 2011”.

The LAI (Access to Information Law) provides in its article 22 that it “does not exclude other legal hypotheses of secrecy and judicial secrecy”. The response may be appealed.

There are some removal processes based on the resolution available in the court’s public consultation. Despite this, the TSE did not even provide a partial amount.

In 2022, amid a fake news campaign against electronic voting machines, the TSE approved a resolution that allowed the court itself to act on untrue or seriously decontextualized content that affects the integrity of the electoral process — which would generally require a request from a third party , such as from a candidate or the Public Electoral Ministry.

It also provided for the possibility of temporary suspension of profiles, accounts and channels in the event of persistent publication of false or decontextualized information — a topic not previously addressed in the electoral rules.

It also gave permission for identical content on which there had already been a court decision to be removed by order of the TSE presidency, which would previously have required new actions.

Despite this expansion of power, there is currently no knowledge of the general framework for applying the resolution. It is also unknown whether all accounts and profiles suspended by the TSE have been reactivated.

In the case of federal deputy Carla Zambelli (PL-SP), for example, there was an order to remove confidentiality at the beginning of December, around a month after all her profiles were suspended.

On that occasion, the president of the TSE, Alexandre de Moraes, determined: “the removal of the secrecy of the process, which therefore provides access to the file for the applicant who must also be included as a party to the file.”

There are no other arguments about why secrecy is no longer necessary, nor about what justified it until then. Zambelli recovered the nets in February.

In addition to the deputy’s process, there are others based on the resolution that are public.

Rubens Glezer, professor at FGV Direito SP and coordinator of the Supremo em Pauta research group, says that, despite the denial based on judicial secrecy being lawful, there is a misuse of the power to deny information, also highlighting that the data requested was only quantitative.

Glezer states that, despite the context in which the court approved the resolution, the attempted coup and the inaction of the Public Prosecutor’s Office, he exercised heterodox power. “To this end, he also doubles his responsibility to allow controls to exist over this exceptional performance.”

Ana Cláudia Santano, professor of electoral law and coordinator of Transparência Eleitoral Brasil, says that, in general, it is very important to know about the decisions, but, given the secrecy of the Court, it is justifiable to refuse the requested data.

Ivar Hartmann, professor at Insper and doctor in public law, sees no justification for not providing general data. Furthermore, he defends the importance of having more transparency about the use of the resolution as it was an outlier.

“In a delicate situation, in a scenario of a use of exceptional power by the TSE as a judicial body, publicity about how this power has been used must be expanded and not reduced.”

As shown by Sheetan open point is what will be done with the resolution for the next elections.

Artur Pericles, who has a doctorate in law from USP and a professor at Yale University, points out that it is difficult to imagine the justification for these actions still being kept confidential today.

“The elections have already passed, people have already had sanctions imposed, some blockades have already been lifted and we do not have the access that the Constitution guarantees to these decisions.”

Pericles is the author of the 2023 Freedom House report on the internet freedom scenario in Brazil and says he faced difficulties in obtaining data. With confidential blocking decisions that came from both the STF (Supreme Federal Court) and the TSE, amid the outbreak of coup movements and conspiracy theories against the polls, there are episodes in which there is no clarity even about which court broke the order.

The TSE’s denial of the request for information was sent more than three months after the request was registered by the Sheet -at the end of July. The LAI deadline is 20 days, extendable for a further 10.

Two protocols were registered throughout October indicating the lack of response. On the 23rd, the court’s Ombudsman’s Office reported that the request was “being processed by the TSE presidency” and that “the unit where the request was made was notified about the necessary observance of the response deadline.”

Despite this, the request remained unanswered, which was sent only after the report contacted the TSE press office asking for a position on the failure to meet the deadline.

In a note, the court reported that the demand “really remained unanswered due to a change in the system.”