Brazil Pledges to Pass Right to Information Bill

7 April 2009

Lula Government Drafting New Law with High-Level Support; Civil Society/Media Coalition Campaigns for Access to Information

International Seminar April 1-2 Opens Public Debate on Proposed Law; First Draft Lacks Independent Agency for Implementation and Appeals

Brasilia, Brazil — The Lula government in Brazil last week publicly committed to pass a right-to-information law this year, thus finally carrying out the provision in the 1988 Constitution that guaranteed the right and called for an implementing law.

An international seminar in Brasilia on April 1 and 2, organized by Fórum de Direito de Acesso a Informações Públicas, the media/civil society coalition that has campaigned for an RTI law since 2003, showcased top-level government support for the passage of a law as well as input and advice from a panel of international experts on access to information.

Highlighting the seminar’s opening session, the chief of staff to President Lula (officially the Minister of the Casa Civil in the Presidency), Dilma Rousseff, announced that the government was drafting and intended to introduce in Congress by the end of April the proposed bill for right-to-information. Rousseff herself a former political prisoner who was tortured during the military dictatorship period in Brazil (1964-1985) particularly emphasized the human rights dimension of the right-to-information and described the government’s intention to create a Web portal for human rights documentation.

The opening session also featured supportive comments from the President of the Chamber of Deputies Michel Temer and the top Brazilian judge. The latter, President of the Supreme Federal Tribunal, Gilmar Mendes, specifically addressed the argument that having a constitutional right meant an actual law was unnecessary, by saying that without an implementing law, the constitutional right was actually ineffective.

On this point, Fernando Rodrigues, the Brasilia correspondent of the leading newspaper Folha de Sao Paolo and a leader of the investigative reporters association ABRAJI, told freedominfo.org that a number of journalists and others had obtained government information in the past few years by citing the constitutional right in legal actions, but that such cases were expensive, time-consuming, and relatively rare.

A draft of the proposed law obtained by journalists became the subject of debate and some criticism from the panel of international experts at the seminar. In particular, the draft lacked any independent agency such as the highly successful IFAI in Mexico (see http://www.freedominfo.org/countries/mexico.htm) or the new Consejo de Transparencia in Chile (see http://freedominfo.org/features/20090327.htm) charged with implementing and overseeing the law. Instead, the proposal placed responsibility in the office of the Controller-General, the budget authority that reports to the President (similar to the Office of Management and Budget in the United States).

The Controller-General’s office, headed by Jorge Hage, has won international praise for publishing Brazils fiscal information online, with a recent study from the International Budget Project ranking Brazil best in Latin America for budgetary transparency. Minister Hage provided the seminar with a detailed presentation of the online data publications his office had pioneered, including the specific real/dollar amounts flowing from the federal level to the states and cities, so that these officials can track government spending and prevent the diversion of funds into corrupt purposes.

One of the leading international experts, Maria Marvan of IFAI, commented that, without an independent entity to enforce the right, new access laws can fail and specifically cited the example of South Africa, which has not kept pace with the implementation success in Mexico, for example. Marvan advised the Brazilians that they have to convince citizens that they have the right to information and to convince officials that they have the obligation.

Toby Mendel of Article 19, who authored the UNESCO guide to international legal standards for freedom of information, reinforced the necessity for an independent institution to implement the law, in his presentation of the global norms on RTI, as did Juan Pablo Olmedo, the chair of the Consejo that is implementing Chiles access law (Olmedo had also represented the plaintiffs in the landmark Interamerican Court case, Reyes v. Chile, that established access to government information as a fundamental human right).

Professor Rosental Alves of the Knight Center for Journalism in the Americas at the University of Texas Austin (and himself a former top Brazilian journalist) introduced the panel of experts with an overview of the global phenomenon of freedom of information then pointed out that Brazil had fallen behind the curve and the international norm.

Tom Blanton of the National Security Archive at George Washington University (and editorial board of freedominfo.org) gave specific examples of the Archive’s success in using the US FOIA to obtain national security files, and answered key questions posed by the seminar about both US and international experience on the costs of implementation, the number of government employees required, the treatment of national security and other sensitive information, the potential of Internet access, and the application of RTI laws to the private sector or state-owned companies (a number rapidly increasing at least in the US). Blanton also noted that the BRIC (Brazil, Russia, India, China) countries other than Brazil had each enacted some form of access legislation or regulation at the national level, with India’s as a model.

Other panels of the seminar included a wide range of leading political party representatives, including the majority and opposition leaders from the Senate, and representatives of the Forum on the Right to Access Information, including the head of the Brazilian bar association and the director of Transparencia Brasil. The latter, Claudio Weber Abrama, detailed for the seminar the specific problems of lack of access to government information at the federal, state and local levels, ranking ministries and offices ranging from the Federal Senate itself (much worse than the Chamber of Deputies) to the state of Minas Gerais (you have to pay for a copy of the states official journal) down to the city of Salvador (which mysteriously lost one of its 41 public authorities from any Web presence). He argued that funding for the right of access should come from the existing public relations and communications budgets of the government agencies, rather than any new appropriation.

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