After 3 years, the Brazilian Freedom of Information Law is the subject of studies and indices that analyze its implementation and uses

Fabiano Angélico

As of May 2015, the Brazilian Freedom of Information law has been in effect for three years.  Enacted in November 2011, the Law 12.527 established a sixth month deadline for Brazilian public institutions to adapt to the new reality, presented in item I of Article 3 to “observe openness as a general rule and secrecy as an exception.”

To mark the three year anniversary, some organizations released studies and analyses about uses of the Law – we will highlight an index published by the Federal Government; a study from an organization in the field of human rights and freedom of expression; and a third, authored by an organization of investigative journalists.

Below is a brief description of each of the three evaluations, followed by quick comments about the three studies and a more general analysis of the first three years of the Brazilian Freedom of Info Law.

Clipping, methodologies, and conclusions

Published by the Brazilian Federal government, through the Comptroller General of the Union (Controladoria Geral da União - CGU), the government accountability office, the index “Brazil Transparency Scale" (Escala Brasil Transparente) was designed to analyze the compliance with the law in municipalities with more than 50 thousand inhabitants in 27 states.

The methodology consists of a “checklist” of 12 categories that cover the aspects of the access to information regulation and the existence and functionality of the electronic Citizen Information Service (Serviço de Informação ao Cidadão- SIC) – the latter was considered a measure of “passive transparency”. The regulation was weighted at 25%, and for passive transparency, 75%.  The final evaluation score ranged from zero to ten.

The CGU reported that 63% of the municipalities scored a grade of zero; and 22.6%, a grade of one.  Surprisingly, more than 85% if the cities that were analyzed received a score of zero or one.  On the other side, only seven cities received a score of 9 or 10 (including two state capitals: Sao Paulo with a 10 and Curitiba with a 9.31) and only 20 had scores between 8 and 9.  An overview of the study can be found here.

At the state level of governance, two states received a score of zero (Amapa and Rio Grande do Norte); five states presented very low scores, between 2 and 4 – one of which was Rio de Janeiro. On the other side of the spectrum, six states obtained a score above 9. The overview is here.

The NGO, Artigo 19, that works in the field of human rights, and freedom of expression and information, released the study, Monitoring the Law of Access to Public Information in 2014, that presents the results from information requests sent to 38 agencies from the Executive branch, 11 agencies from the Judiciary, the Legislature, and the Senate.

The organization aimed to evaluate active and passive transparency.  For active transparency six criteria were studied based on the minimum requirements of the law: institutional information, citizen participation, executive budget content, programs and projects, list of classified documents, and frequently asked questions. For the case of passive transparency, five information requests were sent to each of the agencies where both a quantitative and qualitative analysis were conducted to examine the responses.

Reported by Artigo 19, “Of the 255 information requests that were made, 68.2% had a complete response.  The other 23.2% received partial responses.  A small number, but significant (2%), were requests that failed to receive any kind of response, the majority of these were from agencies in the Justice Department.  At the same time, 5.5% of the requests were denied, and in two of the cases, the public agencies claimed that they did not have the information, and indicated that the requests should be sent to other agencies.”

The NGO commented that, although they received many responses, the quality left much to desire.  In addition, it was necessary to use an appeal in 33% of the requests sent during the evaluation, compared with 29% in the analysis from the previous year.

Finally, the organization Abraji (Brazilian Association of Investigative Journalism) released their second, Report of Compliance with the Law of Access to Public Information – Evaluation, Suggestions and Critiques of the Use of the Law by Journalists. This research focused on the reporters: 83 of them responded to the questions raised by the Association.  From this (small) universe, 57% stated that they had previously made information requests, using the freedom of information law as justification.  From the group of less than 50 journalists that affirmed their prior use of the law in their reporting, 36% were from the state of Sao Paulo.

The research asked the journalists which branches and levels of government were generating the requests for information. From the three levels of government, a higher rate of requests were for the Executive, and  the Legislative and Public Ministry were less demanded.

Considerations

The studies presented have different objectives, motivations and approaches.  The federal government is concerned to act in a way that leaves no room for criticism that the law is not implemented throughout the entire country.  It also appears to be motivated by the fact that many federal resources are transferred to states and municipalities.  Thus, the fiscal responsibility would be much smaller, from the part of the Federal government, if states and municipalities were more transparent.

Going back to the Brazil Transparency Scale from the federal government: note that the methodology could be improved, since the mere existence of a regulation doesn't mean that the compliance with the law is adequate.  Just the fact that the methodology is quite lax – and only examines the most basic obligations – the results are alarming, especially at the municipal level.

The study from the NGO Artigo 19 also conducted their analysis at the federal government level: it is clear that the Judiciary had problems with the implementation of the Brazilian freedom of information law, and that the Executive, while always responding to information requests, frequently does so in a careless manner.

The study from Abraji used a very low number of respondents, which prevents any conclusions or the ability to construct a good hypothesis.  What can be speculated is that Brazilian journalists have yet to use the access to information law frequently, since the association of investigative journalists should focus their research on journalists that actually have experience using the law. Another observation is that journalists are not collaborative and, when they use the law, they don't report this to the association.

This makes it possible to say that the Brazilian Freedom of Information law today at just three years old, still has a lot to  develop – remembering that the law in Sweden is 250 years old and the second oldest access to information law, from Norway, is over 60 years old.

It is certain that the federal government is taking a step forward, principally by the work of the Comptroller General of the Union (Controladoria Geral da União) – reinforcing the idea that it is fundamental to have an agency that is dedicated exclusively to the implementation of the access to information law.  Legislative, Judiciary and the Public Ministry, still have not indicated a department or decent sector to provide oversight of the law.

At the state level, an analysis is missing of the Legislative, Judiciary and the Public Ministry. My hypothesis is that the Brazilian Freedom of Information Law does not work in these public entities.  With regard to the Executive, there are still significant gaps in regulations and implementation, which is noted in the index from the CGU.

Currently, the biggest problem, as well as the biggest aberration in these past three years with the access to information law, are the municipalities.  Policy makers with a high impact on society – like public planning, urban mobility, primary health care, and basic education - Brazilian cities have the very lowest levels of transparency and accountability, which may help to explain their failure to produce substantial public policies. Reflecting on the manifestations from June of 2013 that began with complaints from students, driven to act by the prices and quality of public bus services, a service that is allocated to the municipal governments in Brazil.

There is still a lot to be done to consolidate transparency policies in Brazil, in all of its breadth and complexity. Hard work for some generations of Brazilians.