Resistance Seen to Pending Brazilian FOI Legislation

4 October 2010

By Greg Michener

International Right-to-Know Day, September 28th 2010, was a quiet day in Brazil, as might be expected considering the generally low press coverage and public profile of the still-to-be-enacted Brazilian access to public information law.

Despite being guaranteed by Articles 5 and 37 of the Brazilian constitution, access to public information is not regulated by law, thus depriving citizens of their right to request and receive public information held in the trust of public officials. The omission of a freedom of information (FOI) law —the centerpiece of any country’s transparency infrastructure— represents a serious institutional lacuna for Brazil, especially given the regional diffusion of laws and national developments that demand greater public disclosure. These include a recent corruption scandal in the President’s Office (Casa Civil), as well as considerable public spending on the upcoming World Cup (2014), the Summer Olympics (2016), and massive infrastructure projects, including petroleum developments (the Tupi Field) off the coast of the state of Rio de Janeiro.

The election of President Luiz Inácio Lula da Silva (Lula) in 2002 seemed to augur well for a law. One of his party’s legislative deputies, Reginaldo Lopes, introduced a FOI legislative proposal into the Chamber of Deputies in 2003. It appeared that the motto of the ruling Workers’ Party (Partido dos Trabalhadores or PT), promoting participation, prioritizing the poor, and guaranteeing transparency, was indeed on its way to being realized. But Lula had little need to bolster his image by waving the transparency banner; with a buoyant economy, high popularity, and coalition legislative majorities in both chambers of Congress, freedom of information was excluded from the legislative agenda until 2009.

From 2003 to 2006 Deputy Lopes’ proposal languished in Congress. During Lula’s re-election campaign in 2006, however, the president-elect promised to make good on his stated commitment to greater transparency. The Federal Comptroller General elaborated a proposal for a FOI law, but the project remained mostly unpublicized until early 2009. It was then that the Brazilian Association for Investigative Reporting, ABRAJI, organized an International Seminar for Access to Public Information in Brasilia, together with Article XIX, the Knight Center for Journalism in the Americas, and the Forum for Access to Public Information (a Brazilian coalition). The government submitted a proposal to Congress a month following the Seminar.

After the bill entered the Chamber of Deputies in May 2009, it remained inert until a special committee was set-up to consider it in September of the same year. Although the Special Committee failed to gather quorum on several occasions, the efforts of Article XIX, ABRAJI, Transparência Brasil and the entrepreneurial journalist Fernando Rodriguez of the Folha de São Paulo newspaper helped the bill receive approval in April 2010.

Pending Bill Improved

As it stands, the bill arrived in the Senate much improved over what the executive branch had original proposed. But the project still lacks several better practice standards. Most critically, it does not provide for a dedicated oversight agency, unlike Brazil’s regional neighbors, Chile and Mexico. Instead, the Federal Comptroller General holds responsibility for the law’s operation. Furthermore, the law takes an unorthodox approach to classification, dividing information into three tiers of secrecy, with the maximum reserve period of 25 years for “ultra-secret” information— excessively long by better practice standards.

There is much that is positive about the project, however. The bill provides for the right to access information in all three branches of government, in addition to companies in which there is public ownership. It also permits access to information by any individual—national or foreigner— within 20 days, with a possible 10 day extension, and includes the option to launch an internal appeal if the applicant is denied information. Similar to other laws in the region, it also prohibits the withholding of information relevant to the investigation of human rights abuses.

Resistance Evaluated

Parties inside and outside of the governing coalition have resisted the half-sanctioned bill since it entered the Senate. Apparently, this resistance has in large part been motivated by Brazil’s secretive Ministry of Defense. A month ago, at the beginning of September 2010, Transparência Brasil contacted 91 senatorial candidates in order to secure commitments for the passage of the FOI bill. The results of this campaign were presented on Sept. 28, 2010, International Right-to-Know (RTK) Day.  

Organized by Transparência Brasil’s Fabiano Angélico, International RTK Day was held at São Paulo’s Fundação Getulio Vargas. Presenters included the author, Arthur Serra Massuda of Article XIX, Fabiano Angélico of Transparência Brasil, and journalist and radio host, Milton Jung, the creator of a program entitled “adopt a city councilor.” The event attracted approximately 50 people, including a journalist from the country’s most prestigious newspaper, the Folha de São Paulo. As for Transparência Brasil’s campaign to secure commitments in the Senate, only 34 of the 91 Senators indeed responded with a position, and only 30 did so in a decidedly affirmative manner. Numerous Senators apparently expressed aggravation at being interrupted in the middle of their campaigns for what they viewed to be an irrelevant issue. The September 28th RTK event did not appear in any national newspaper.  

As the author has argued in previous features written for freedominfo.org (here and here) as well as in his Ph.D. dissertation on the adoption of FOI across Latin America, news media coverage of access to public information remains one of the key factors in explaining the timely adoption of laws and the strength of legislation. In addition to unpropitious legislative conditions (consecutive majority governments), weak media coverage of a law is much to blame for political delay and resistance. The author recently conducted an updated content analysis of Folha de São Paulo’s coverage for eleven months, from when the Bill entered Congress in May 2009 until it was enacted by the Chamber of Deputies in April 2010. Although Folha published an average of 4.2 news items per month that mentioned access to information as a citizen right or a legal measure, only 1.5 news items per month in effect directly addressed the issue of a prospective access to information law. Although the Folha and other publications provided ample space for a recently enacted law prohibiting politicians with criminal records from running in elections (the “Ficha Limpa” or “clean docket” law), an access to information law appears not to have evoked the same interest.

The upcoming presidential alternation does not promise to restore the sort of legislative balances that promote accountable behavior and advance accountability reform in government; presidential candidate Dilma Rouseff is expected to secure nearly a super-majority in the National Legislature.

Despite the Brazilian campaign’s many challenges, one consoling fact should be reiterated: the proposal being considered in the Senate is much improved over the document originally sent to Congress by the Federal Comptroller General. The hope is that civil society and the media will begin to generate enough pressure within the presidency and the Senate to guarantee expeditious enactment of the half-sanctioned bill. Leaving office having taken a major step toward fulfilling his party’s original promise for transparency would certainly lend even greater prestige to President Lula da Silva’s much vaunted legacy.

Greg Michener, a Canadian citizen and Brazilian permanent resident, recently completed a Ph.D. in political science at the University of Texas at Austin. His dissertation focused on the adoption of access to public information laws across Latin America. A more extensive analysis of the trajectory of Brazil’s law is available at the author’s website, in chapter four (starting on page 43 of the PDF). The analysis of legislation, however, was limited to the bill that originally entered Congress in 2009.

The text of the half-sanctioned bill (in Portuguese) is available here .

Fabiano Angélico of Transparência Brasil can be contacted at fabianoangelico@yahoo.com.br

Arthur Massada of Article XIX Brazil can be contacted at Arthur@article19.org

ABRAJI’s website, including a link to the Forum for Access to Public Information is available here.

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