Top trend on the Brazilian Twitter last Thursday, 24/01, amendments to Decree 7.724 / 12 that regulates the Brazilian Law on Access to Public Information during the interim presidency of president Hamilton Mourão generated wide alert. The main controversy was that from the new possibility of the commissioned servers classify information as secret or top secret, which directly affects their degree of confidentiality and may symbolize the restriction of transparency mechanisms. The government justified it by claiming that it “reduces bureaucracy when you disqualify some confidential documents“.
Do you want to better understand the impact of this change, the importance of the law on access to public information and what are these degrees of confidentiality? Keep reading!
The Access to Information
The right of access to information is central to a democracy. The guarantee of the produced information are available is essential, so for citizens to be able to exercise the activity of control and participation in the public administration, and also for them to protect themselves individually before the state.
In the authoritarian governments, notably in the Vargas and the military dictatorships, the culture of the secret has become a fundamental tool for political persecution. Barbosa Moreira points out how many punitive or discriminatory measures were based on information collected incorporated into official or para-official records that were previously collected “in sources of debatable suitability and by obscure means, often manipulated without scruples, or even fabricated by the paranoia of repressive organs.” Without access to the data contained in the records, the accused or interested parties had no way of defending themselves, either by demonstrating the falsity of the information or by the incorrectness of something they knew.
An attempt has been made to curb such arbitrariness, in the Federal Constitution, there is a series of principles in order to guarantee the fundamental rights of the citizen, such as the right to petition public bodies, in defense of rights, illegality or abuse of power and to obtain public rights, clarification of situations of general interest, as well as the right to sue the habeas data to ensure the knowledge of personal information contained in records or databases of public bodies and for data rectification (article 5, subsections XXXII, XXXIII, LXXII).
Com a redemocratização, muito embora a publicidade e às garantias de acesso à informação estivessem na Constituição Federal (CF) desde sua promulgação, em 1988, poucos eram os mecanismos que permitissem a sua efetividade. Fruto do movimento Open Government Data, em 2007, foi promulgada, em 2011, a Lei de Acesso à Informação brasileira (Lei 12.527/11 – a LAI), deixando claro que no Brasil, a publicidade é regra e o sigilo é exceção. Era o que também dizia a Constituição em seu artigo 5º, inciso XXX, que afirma que o sigilo só poderá ser admitido quando este for “imprescindível à segurança da sociedade e do Estado”.
The State’s duty of transparency was also ensured. The public transparency starts from the understanding that public decisions can not be limited to the subjectivity of the administrator, and should consider the people’s interests in a constant management process of social control and participation. In order to do so, it is necessary to have the right to know, the right to control and the right to participate in the administrative mechanisms, as pointed out by Taborda.
With re-democratization, although the publicity and guarantees of access to public information were in the Federal Constitution (CF) since its enactment in 1988, few mechanisms were available to make it effective. As a result of the Open Government Data movement, from 2007, the Brazilian Law on Access to Public Information was enacted (Law 12.527/ 11 – LAI) in 2011, making it clear that in Brazil advertising is a rule and confidentiality is an exception. This was also what the Constitution stated in its article 5, XXX, which states that secrecy can only be admitted when it is “indispensable to the security of society and the State”.
Classification of the informations : open, reserved, secret, top secret
The confidentiality of information is only authorized by the Constitution in exceptional situations, all of which are listed under Article 23 of the LAI in an exhaustive list. They are all confined to hypotheses where access could compromise national sovereignty or stability, whether in matters of defense, health or economics. It is noted that, although the situations indicated authorize the government to restrict free access to information, this restriction is not absolute and is not configured in a single way. The most sensitive information should be classified by the least restrictive criterion, considering the “seriousness of the risk or damage to the security of the company and of the State” and “the maximum term of access restriction or the event that defines its final term” (Article 24 , §5º, LAI).
The free and open information is the rule, but if some of the elements pointed above are identified, it can be classified as reserved, secret or top secret – these last two are the most sensitive and with quite meaningful sigil periods, considering the impact of time to an information. The attribution of a secret degree must follow a rigid procedure which provides, among others, that the classification needs to reasoned on a term (Article 31 of the Regulation) to be evaluated by the Revaluation Committee, composed of members of the three state powers. The article, however, which provides for the mixed composition was vetoed, being re-established by Decree with a new only executive configuration (Article 46).
|Maximum time limits for restricting access to information (article 25 of the LAI)|
|5 (five) years||15 (fifteen) years||25 (twenty-five) years|
For this reason, the Law establishes an even stricter procedure for such classifications to be assigned to information. For example, only the President of the Republic, the Vice President, Ministers of State and authorities with the same prerogatives, Navy, Army and Aeronautics and the Heads of Permanent Diplomatic and Consular Missions abroad could classify information as top secret, preventing them from accessing it within 25 years.
In order to classify the information as secret, besides those listed above, only the holders (presidents or chief executives) of the entities of the indirect administration have powers. For the degree of reserved information, whose secrecy has a slightly shorter term, 5 years, the competence is extended to those who exercise the functions of direction, command or leadership of the Senior Management and Advisory Group. Let us see that at the time of the Law’s validity, the regulatory decree forbade any delegation of jurisdiction to assign the degree of secrecy or ultra-secret. That is, the authorities could not allow other agents to assign such a restriction to access on their behalf.
The changes promoted by Decree No. 9.690/19 and their impact
On Thursday, January 24, 2019, President-in-Office, Hamilton Mourão, published Decree 9.690 /19, amending the Regulation of the Brazilian Law on Access to Public Information, not only updating the name of the Ministries and bodies, but also revoking the prohibition of the competent delegation to assign the degree of secret or top secret information. It authorizes that the legally competent authorities can delegate to the public agents of the Steering Group and Senior Advisers (Levels 101.5 and 101.6) the function of defining when information is essential to the security of society and the State.
The positions of codes 101.5 and 101.6 may be filled by public agents commissioned, without an effective bond, who exercise management activity with a trust function. The absence of an effective bond is relevant, since the agent does not have security in the maintenance of the function in eventual disagreement with his superior. According to the latest survey by the Ministry of Economy, which today includes the former Ministry of Planning, the federal government, until December 2018, has 1,082 public agents classified as DAS 5 and 206 as DAS 101.6.
It is noted that, although the amendment is not unlawful, since the delegation of jurisdiction was allowed by Law, the deletion of a rule by a decree that established secrecy as an exception and opening as a rule represents a regression in the legal regime, which must to promote transparency more and more.
According to news vehicles, Mourão said in an interview that the amendment “only and exclusively reduces the bureaucracy when you disqualify some confidential documents.” The Office of the Comptroller General (CGU) noted that allegations that changes in the classification of information would have harmful effects on LAI “do not proceed” and that “the changes proposed here are intended to simplify and reduce bureaucracy in the performance of the State” , being “fruit of intense discussion, since 2018, between the CGU and several actors”.
Iara Vianna, a master in political science and co-founder of the Center for Research in Politics and the Internet (CePPI / UFMG), expressed great concern about the outcome of the decision:
“In my opinion, the LAI amending decree (sanctioned by the vice president last Thursday) raises a number of issues and achievements (in terms of transparency of information and the social control that comes from this opportunity to access data governmental organizations) at serious risk. I believe many people, unfortunately, do not have the dimension of what this measure and this regression means.
For those who were insistently raising the banner of the fight against corruption, this measure in the first month of government sounds strongly contradictory.
With the restriction of public agents who previously could classify documents as reserved or secret (formerly: president and vice president, ministers of state, commanders of the Armed Forces and heads of diplomatic or consular missions abroad), the possibility of accountability and monitoring was much higher. Social movements, civil society, journalists and other professionals working in the area were more likely to be aware of the classifications performed and, if necessary, to question and problematize them. With the new permission that this classification is made by any high-level public servants, in addition to the reduction of the capacity for monitoring, control and accountability, one has the following (big) problem: it will be much easier to hide administrative misconduct and other forms of corruption.
Another thing: I may be mistaken, but expanding the ranks of people who can perform such classifications can only mean a desire to increase the number of classified documents as well. It would not make sense for such an extension if the government’s intention was to make its information more and more transparent, open and accessible to all.”
The concern outsourced by the researcher was also shared by various civil society entities. Noteworthy is the Public Notice issued by the non governmental organization Article 19, counting on the signature of 16 specialists and entities that accompany the access to information in the country. They warn that public transparency must be treated in a serious way, and it can not be just the government’s rhetorical discourse. They further state that the proposal regarding the revocation of the delegation had not been included in the agenda of the CGU or duly discussed with civil society.
It’s time to strengthen the Transparency Culture
The Law of Access to Public Information, establishing the compliance of publicity as a general precept and secrecy as an exception, consolidates in the normative scope an important instrument for democratic practice. The monitoring of the guarantees and rights that it establishes, nevertheless, indicates that throughout the territory, the citizens still suffer several violations, demonstrating that there is still much to do to improve it. It should also be noted that the year 2018 ended with an unjustified and suspicious attitude of granting confidentiality to all the data of the budget foreseen and executed with the Transition Commission between the governments of President Michel Temer (MDB) and the president-elect , Jair Bolsonaro (PSL).
The guarantee of transparency at the federal level requires proposals that are more active in guaranteeing the opening of government data and not the other way around. It is in this sense that they are consistent with criticism. The culture of secrecy must be turned away at once.
Although the classification of documents as secret or ultra secret is currently rare, with the change promoted by the government, making it possible to delegate competence to more public agents than in the military dictatorship, the tendency is for the number of secret documents and top secrets to expand, deserving our full attention, in defense of the Culture of Transparency.
Text written by Mariana Lopes and Iara Vianna. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of the Institute for Research on Internet and Society.