Audit Indicates Weaknesses in Some Brazil Jurisdictions

18 July 2014

By Gregory Michener

Dr. Gregory Michener is Associate Professor of Public Administration and Politics at the Brazilian School of Public and Business Administration, Fundação Getúlio Vargas, Rio de Janeiro (EBAPE/FGV). He also directs the incipient Transparency Audit Network based at the FGV Rio de Janeiro’s School of Law and EBAPE. This article appeared on the Open Government Partnership blog July 18

For Brazil, which enacted a Freedom of information (FOI) law in 2011, passive transparency is a relatively new administrative paradigm. The results of a large request-driven FOI audit suggest as much. Yet it is also clear that the federal government, led by the Federal Comptroller General (CGU), is committed to FOI. The question is how to bring that commitment to the subnational level and other branches of government. 

In mid 2014, the Transparency Audit Network based at the Getúlio Vargas Foundation (FGV), Rio de Janeiro, completed a large audit of eight jurisdictions [1] to see how well government entities responded to over 500 electronically submitted freedom of information requests. Of the total valid requests submitted (N=474), 40 percent went unanswered (mute responses), 18 percent were partially answered, and only 31 percent garnered full responses. Of responses that were partially or fully answered, 51 percent were deemed of good quality (complete, clear, and relevant). Among the eight jurisdictions evaluated, the City of São Paulo and the Federal Government had the best response rates (74 and 73 percent, respectively), whereas the city and state of Rio de Janeiro fared the worst (26 and 49 percent, respectively).

It is clear that leadership makes the difference between a law that works and one that doesn’t. Brazil’s CGU has been a good leader, made better by its commitments to the OGP: it has offered courses on the FOI law to public servants across the country, diffused its electronic requesting system (Esic) to all comers, and it has coordinated with willing regional affiliates. 

Yet the OGP and the CGU face two challenges: to eliminate legal barriers to accessing information and to encourage implementation and compliance at all levels, but especially at the local level and within all branches of government. 

Many states and cities in Brazil have still not regulated the law, let alone implemented it. Others, such as the state of Rio de Janeiro, have erected procedural obstacles that discourage requests – such as a disclaimer form that must be printed and submitted with requests. The branches of government also show strong variation in levels of compliance with FOI. In the FGV audit, we found that the judicial and legislative entities across eight jurisdictions were about two-thirds and half as responsive as executive branch entities, respectively.

While implementation is crucial, the OGP must also help encourage reform of FOI statutes. The Brazilian law contains a serious barrier to realizing the universal right to information: the need to self-identify with a real name and social security number. This obligation is explicitly excluded from better practice laws because it facilitates intimidation and discrimination – especially at the local level – and thus discourages the participation that makes transparency possible. Our audit makes this clear through a field experiment that employed two volunteers – one with an upper-class address and a clear institutional affiliation (the FGV), the other with no internet profile and a lower class address. The ‘institutional’ identity received almost ten percent more responses and with much greater expediency (an average of 16 versus 28 days for a response!). 

The OGP has encouraged many worthwhile endeavors, and Brazil’s Federal Comptroller is clearly committed to strengthening the right to information. But the OGP and affiliated governments need to encourage generalized implementation at all levels of government and in all branches. They must champion reforms that encourage moderate use rather than discourage it. 

[1] The federal government, the federal district, the state of São Paulo and its capital, the state of Rio de Janeiro and its capital, and the state of Minas Gerais and its capital, Belo Horizonte. 

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