SALVADOR, Bahia – Brazil’s government is making the transition from a culture of secrecy to one of open access.
With the Access to Information Law (Law 15,527), which goes into effect on May 16, the government will be required to proactively disseminate data of public interest and respond to information requests.
“Legal penalties are just the first step toward changing a mentality that has existed for more than a century,” says Marina Iemini Atoji, the executive secretary of the Forum for the Right of Access to Public Information, which brings together 25 organizations from Brazilian civil society. “But it’s important because it establishes direct, practical consequences when there is a violation of the premise of transparency, such as administrative penalties for public officials who do not provide information that is clearly of public interest.”
Inspired by similar legislation in Mexico and Chile, the Brazilian law applies to government at the municipal (5,565 cities), state (27 governors) and federal levels. Also subject to the law are state-owned or public-private companies and non-governmental organizations (NGOs) that receive public funds.
The law establishes procedures for accessing public information and differentiates confidential information from that of public interest. The law sets timelines for information to be provided to requesting parties, who do not need to justify their requests.
“Obviously, with only six months for the government to prepare itself, the service will not be ideal in the first days after this law comes into effect, but improvements will be made over time,” says Comptroller General Jorge Hage.
Hage says the Office of the Comptroller General (CGU) has trained about 600 public servants and that all ministries have established working groups to adapt to the new law, as 20 of them already have their Information Systems (SICs) ready to begin operations.
The SIC is the sector responsible for receiving and processing requests for information and providing guidance to the public about the access procedures. All public agencies under the three branches of government must have a SIC.
But the regional contrasts in terms of Internet access could complicate the law’s implementation in Brazil, Atoji points out. In addition to the technical issue of access, there is also a need to improve the process for storing and filing public information, she adds.
Hage says the law presents challenges to the government, but he also points to the improvements the law is expected to encourage at all governmental levels.
“The state is obliged to structure itself to expeditiously provide information to its citizens, thus driving an improvement in public service,” he says. “We expect the law to trigger advances in the management of documents at public entities and organizations.”
Unlike similar legislation in Sweden and England, the Brazilian law does not mandate the creation of an independent regulatory agency to monitor potential cases involving the withholding of information. At the federal level, the CGU will monitor noncompliance of the law.
Citizens who have a request denied can file an appeal with the public official above the one that refused to provide the information. If the request is once again denied, the case must be brought to the Ministry of Justice or the Public Ministry. Cases involving a breach of the terms or procedures of the law should be brought to the CGU.
The CGU has shown sufficient stability and institutional independence to assume this role, despite its subordination to the federal government, Atoji says.
“The situation at the state and municipal levels worries us because the CGU cannot act in these spheres,” she says. “Defining the entity that will handle the resources in these spheres depends on the laws they themselves put into place, which could take time to be introduced, or they may never appear.”
As a result, civil society will be essential to monitoring compliance of the law, Atoji adds.
In order to facilitate this oversight, the Forum will create a 2012 Access Map, which can gauge the law’s impact. The study will register the number, type and terms of service for information requests in municipalities that have populations of more than 200,000.
There is a direct relationship between transparency and development, says Guilherme Canela, a regional Communications and Information advisor for Mercosur and Chile at the United Nations Educational, Scientific and Cultural Organization (UNESCO), in an interview with the website Observatório da Imprensa. Countries with the highest Human Development Indices (HDIs) already have implemented information laws.
Advocates for this type of legislation say it benefits all levels of society, as easier access to government information helps the media monitor the government, allows the private sector to better understand contract bidding processes and allows individuals to better inform themselves about their rights.