Understand what the law says about confidentiality of public data – 01/17/2023 – Power

Throughout the government of Jair Bolsonaro (PL) the application of 100-year-old secrecy has become recurrent to restrict access to information of public interest. The denials, which have no legal basis, will be reviewed by the end of January.

A campaign promise, the revision of the secrecy decreed by Bolsonaro was determined by President Lula (PT) shortly after taking office.

The process is carried out by the CGU (Controladoria-Geral da União) and reaches decisions “based on mistaken grounds regarding the protection of personal data, national security and the President of the Republic and his family members and the protection of intelligence activities”, according to President’s decision.

In addition to the review made by the body, citizens who had requests denied during the Bolsonaro administration can redo the requests to the new government. Information on the visit schedule of former first lady Michelle Bolsonaro and corporate card spending by the former president has already been made available.

Understand what the legislation says about secrecy and transparency:

What does the LAI say about secrecy?

The law defines confidential information as that which has access to the public temporarily restricted because it represents a risk to the security of society or the State. Transparency is the rule and secrecy the exception.

Anyone can make a request for access to information to the Executive, Legislative, Judiciary and Public Prosecution bodies, as well as to non-profit private 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 are the secrecy provided by law?

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 year secrecy. In addition to the aforementioned authorities, it may be determined by holders of autarchies, foundations, public companies and government-controlled companies;
• Reserved: 5 year 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.

What are the 100 year sigils?

There is no so-called 100-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 explain 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.

Research carried out by Transparência Brasil shows that during the Bolsonaro administration there was an increase in the inappropriate use of personal data protection to deny information of public interest.

From 2019 to 2022, there were 413 cases of undue denials based on the use of the article. The record was registered in 2019, the first year of the government, in which 140 requests were denied.

How does the reanalysis of sigils work?

It depends on the secrecy established. In the case of information denied based on the misuse of article 31 of the LAI, the reassessment is carried out by the CGU itself, in a process that is usually carried out by the Federal Ombudsman.

The project manager at Transparência Brasil, Marina Atoji, explains that the request and denial of access are analyzed first. Eventually, a new technical opinion may be requested before the new decision, which may or may not maintain the negative. The CGU did not inform how the review will be disclosed.

Another possible way to obtain the information is to repeat the denied request. Through this procedure, visits received by former first lady Michelle Bolsonaro and information on spending with the corporate card by President Bolsonaro have already been made available.

In the case of information classified as secret and top secret, it is up to the CMRI (Mixed Commission for the Revaluation of Information) to carry out this reanalysis procedure. Content classified as reserved may be reviewed by the authority that made the classification.

Marina Atoji states that the process needs to be transparent.

“The criteria used to define whether or not secrecy was adequate need to be disclosed, as well as a periodic balance of how many have already been revised and how many remain to be revised and the publication of declassified information”, he says.

Can President Lula interfere in the reanalysis process?

The analysis carried out by the CGU must be carried out technically and without political interference, says Maria Dominguez, coordinator of the integrity and public governance program at Transparência Internacional Brasil.

Lawyer Bruno Morassuti, co-founder of Sejam Sabendo, says it is unlikely that the president will interfere in the process, but recalls that he can reorient Executive bodies on the treatment that should be given to a certain type of information.

Dominguez exemplifies citing the case of Inep’s educational microdata, which can be published again if the government so determines.

Which secrets should be reviewed by the Lula government?

Experts point out that during the Bolsonaro administration there was a set of denials of information previously made available. An example of this is data on access to public buildings. The analysis is that this data should be made available.

Maria Domingues (Transparência Internacional Brasil) says that all content of public interest, such as those involving the transfer of resources or indicating why a certain decision was taken, should also be made available.

To this list, Marina Atoji (Transparência Brasil) adds data from Bolsonaro’s vaccination card during his term, information of interest that could not be denied to the population.

Which cases require more analysis time?

The analysis is that information related to the security forces should require a firmer action on the part of the government.

An example of this is the disciplinary process against former Minister of Health Eduardo Pazuello. THE Sheet requested access to the Army’s internal process about not punishing the general for participating in a political act with Bolsonaro in 2021, but the hundred-year secrecy was maintained in the case.

“There is a lack of interest in opening this information and I hope that this will be reviewed”, says Bruno Morassuti, who also cites the difficulty of accessing information on FAB (Brazilian Air Force) flights.

What bottlenecks in relation to transparency will need to be overcome by the government?

Establishing guidelines on how personal data should be treated so that they are not used as an obstacle to transparency is a need pointed out by experts, who also mention the need to strengthen the technical staff of the bodies and expand the participation of civil society through councils.

Marina Atoji (Transparência Brasil) says that decrees and regulations are important to improve the LAI and avoid misuse in the future. She also defends clearer parameters for the classification of sigils, in order to make the procedure less subjective and facilitate monitoring.