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Brazil

Access to Information Policy in the Federal Government – Promptness and Effectiveness to Information Requests (BR0086)

Overview

At-a-Glance

Action Plan: Brazil National Action Plan 2016-2018

Action Plan Cycle: 2016

Status: Inactive

Institutions

Lead Institution: Ministry of Transparency, Oversight and Comptroller General of Brazil

Support Institution(s): Ministry of Planning, Development and Management Joint Committee of Information Reassessment Ministry of Justice and Citizenship Chamber of Deputies Ministry of Transparency, Oversight and Comptroller General of Brazil, Article 19 Getúlio Vargas Foundation Transparency International Brazilian Association of Investigative Journalism Mr. Francisco Leali

Policy Areas

Access to Information, Capacity Building, Right to Information

IRM Review

IRM Report: Brazil End-of-Term Report 2016-2018, Brazil Mid-Term Report 2016-2018

Starred: No

Early Results: Major Major

Design i

Verifiable: Yes

Relevant to OGP Values: Access to Information

Potential Impact:

Implementation i

Completion:

Description

Lead government institution: Ministry of Transparency, Oversight and Comptroller General of Brazil; Civil servant in charge for implementing at lead government institution: Otávio Moreira de Castro Neves; Position - Department Director/Transparency and Control Department; E-mail: otavio.neves@cgu.gov.br; Telephone: 55 61 2020 6538; Other involved actors: Government: Ministry of Planning, Development and Management Joint Committee of Information Reassessment Ministry of Justice and Citizenship Chamber of Deputies Ministry of Transparency, Oversight and Comptroller General of Brazil Civil society, private sector, group of workers and multilateral actors Article 19 Getúlio Vargas Foundation Transparency International Brazilian Association of Investigative Journalism Mr. Francisco Leali; Status quo or problem/issue to be addressed: Information request answer tardiness and unsuitable exposure of the classified documents list; Main objective: To promote the right to information access, as established by the Information Access Act, curbing the access barriers and improving its answer effectiveness; Commitment short description: The commitment aims to have the classified documents list, rated by the agencies, as transparent as possible, and also to provide methodological guidelines for qualitative evaluation of answers given by those bodies; OGP Challenge addressed by the Commitment: ImprovementofPublic Services; Commitment relevance: To enhance the access to information aspects rendered by the federal governmental bodies, contributing therefore to the advancement of a culture of transparency in the civil service. Goal: To improve the information request answer effectiveness, the proper use of exceptions, and a suitable subject exposure at the classified information list

IRM Midterm Status Summary

3. Access to Information Policy in the Federal Government – Promptness and Effectiveness to Information Requests

Commitment Text:

Enhance mechanisms in order to assure more promptness and answer effectiveness to information requests, and the proper disclosure of the classified document list

The commitment intends to enhance the access to information aspects rendered by the federal governmental bodies, contributing therefore to the advancement of a culture of transparency in the civil service. The commitment aims to have the classified documents list, rated by the agencies, as transparent as possible, and also to provide methodological guidelines for qualitative evaluation of answers given by those bodies.

3.1 – Recommendation of subject inclusion at the classified information list

3.2 – Establishment of a deadline rule for additional clarifications

3.3 – Establishment of an evaluation methodology, essentially considering: training, information list, subject, time, answer effectiveness

3.4 – Evaluation carrying out

3.5 – Publishing of evaluation results

3.6 – Recommendations to organizations, considering guidelines, in order that the Information Access Act understanding binds the civil servant functional life.

3.7 – Publishing of the agency answer

3.8 – Referral and results

Responsible institution: Ministry of Transparency, Oversight and Comptroller General of Brazil

Supporting institutions: Ministry of Planning, Development and Management, Joint Committee of Information Reassessment, Ministry of Justice and Citizenship, Chamber of Deputies, Article 19, Getúlio Vargas Foundation, Transparency International, Brazilian Association of Investigative Journalism, Mr. Francisco Leali

Start date: December 2016 . End date: November 2018

Context and Objectives

The commitment addresses issues of nonreplies to information requests and the misuse of denials (e.g., use of the 'classified information' argument). Thus, the commitment seeks to improve the effectiveness of information requests at the federal level and the proper use of exceptions. It also aims to reform the rules used to justify safeguarding classified information. To achieve these objectives, the government expects to make the list of current classified documents as transparent as possible. It will also provide methodological guidelines for a qualitative evaluation of responses to information requests. Ultimately, the government will evaluate agency practices, publish the results, and offer recommendations for improving practices.

The commitment’s level of specificity is medium. Its intermediate steps include agencies delivering an improved document classification list, setting deadlines to provide requested information, and developing a methodology to evaluate the effectiveness of government agency responses to information requests. However, it is unclear how these deliverables will increase promptness and effectiveness in responses to information requests. The commitment is relevant to the OGP value of access to information, because it seeks to improve the information request process.

The commitment has a moderate potential impact, particularly if it can increase the reply rate of government agencies and address denied requests in key cases. In particular, the list of classified documents, even if it is not a form of active transparency, is closely related to the quality of government responses to access to information requests. More detailed classifications can reduce the response time and improve overall compliance by allowing citizens to more clearly contest the denials of requests.

Brazil’s transparency mechanisms have been increasingly used in the past five years, which is positive. However, analysis has shown a need to improve the service’s efficiency and transparency in several cases.[1] In this context, it is noteworthy that the government has proposed to both evaluate the current practices and promote an actual policy change by 2018. This policy change will allow for more transparency and efficiency in evaluating transparency mechanisms. It will also advance provisions for agencies to improve their practices, including publication of evaluation results, a response from each agency, and follow-up meetings. Identifying, evaluating, and, if necessary, correcting denied information requests based on the classified information exemption (in the case of misuse) would be an important step forward for access to information in Brazil.

Completion

The commitment’s level of completion is limited.

Milestone 3.1 is complete. The government drafted the policy proposal, submitted it to civil society for comment,[2] and published it.[3] The policy would include a required field in access-to-information requests to identify the type of classified information. This field has already been adopted by some websites, including that of the Ministry of Transparency, Oversight, and Comptroller-General (CGU), as verified by the IRM researcher. According to a government representative (interview with Marcelo de Brito Vidal), other government institutions requested more time to adopt the recommendation, citing the complexity of internal procedures.

Milestone 3.2, which deals with the legal requirements to enforce the commitment goal, has seen substantial progress, but it is not complete. The CGU’s original plan was to update Presidential Decree 7.7214/2012, which establishes the criteria for classified information. However, the agency is currently analyzing strategies that can provide the necessary policy changes within the CGU's existing legal capacity. The legal analysis has not yet been shared with civil society for comment, but the ministry did send it to the IRM researcher, who verified its existence.

The methodology to evaluate current practices (milestone 3.3) is substantially complete. The government drafted a proposal of the methodology and submitted it to civil society for consultation.[4] According to the government, when the process is complete, the methodology will be published on the website for the Freedom of Information Act (http://www.lai.gov.br).

Milestone 3.4 has begun. Because it depends on the completion of milestone 3.3, only preliminary work has started. The government reports that internal meetings between the CGU and the Ministry of Planning, Development, and Management are being held to define a capacity-building series. The information is internal, but evidence of email exchanges was sent to the IRM researcher, who verified the progress.

Milestones 3.5-3.8 have not been initiated, but are nonetheless still on schedule.

As mentioned in the action plan, milestones 3.1-3.3 were expected to be delivered by June 2017, which puts the commitment behind schedule.

Early Results (if any)

It is too early to analyze the results of this commitment. The government deployed a new policy regarding the classified information list. Some websites have received the new fields of information. However, there has not been broad adoption across government thus far. The Ministry of Transparency, Oversight, and Comptroller-General is the leading institution in adopting the new policy. Other branches of the government (including at the subnational level) have not adopted it yet. Also, training and evaluation should be implemented before analyzing the commitment’s contribution to government openness.

Next Steps

One of the key intended outcomes of this commitment is for civil society to be able to identify the main instances when government uses the classified information argument to deny information requests. To achieve this, however, the various institutions processing information requests must change their practices based on the results and recommendations of the evaluation described above. Thus, the implementation of the remaining milestones is only the first step. A plan for following up on the uptake of the proposed policy changes across the federal government will be essential for achieving the desired impact.

[1] Gregory Michener and Irene Niskier, 'Law of Access to Information 5 Years Ago with Advances and Limitations,' Folha de S. Paulo, 30 September 2017, http://www1.folha.uol.com.br/poder/2017/09/1923133-lei-de-acesso-a-informacao-faz-5-anos-com-avancos-e-limitacoes.shtml.

[2] Open Government Partnership, Memoria de Reuniao—Compromissos 3 e 4, http://www.governoaberto.cgu.gov.br/central-de-conteudo/documentos/memoria_reuniao_02ago2017.pdf.

[3] Guia para Publicação do Rol de Informações Classificadas e Desclassificadas e de Relatórios Estatísticos sobre a Lei de Acesso a Informação, http://www.acessoainformacao.gov.br/lai-para-sic/sic-apoio-orientacoes/guias-e-orientacoes/guia-informacoes-classificadas-versao-3.pdf.

[4] A representative from Article 19 confirmed this to the IRM researcher.

IRM End of Term Status Summary

3. Access to Information Policy in the Federal Government—Promptness and Effectiveness to Information Requests

Commitment Text:

Enhance mechanisms in order to assure more promptness and answer effectiveness to information requests, and the proper disclosure of the classified document list.

The commitment intends to enhance the access to information aspects rendered by the federal governmental bodies, contributing therefore to the advancement of a culture of transparency in the civil service. The commitment aims to have the classified documents list, rated by the agencies, as transparent as possible, and also to provide methodological guidelines for qualitative evaluation of answers given by those bodies.

More specifically, the commitment was set out to achieve the following milestones:

3.1 – Recommendation of subject inclusion at the classified information list

3.2 – Establishment of a deadline rule for additional clarifications

3.3 – Establishment of an evaluation methodology, essentially considering: training, information list, subject, time, answer effectiveness

3.4 – Evaluation carrying out

3.5 – Publishing of evaluation results

3.6 – Recommendations to organizations, considering guidelines, in order that the Information Access Act understanding binds the civil servant functional life.

3.7 – Publishing of the agency answer

3.8 – Referral and results

Responsible institution: Ministry of Transparency, Oversight and Comptroller General of Brazil

Supporting institutions: Ministry of Planning, Development and Management, Joint Committee of Information Reassessment, Ministry of Justice and Citizenship, Chamber of Deputies, Article 19, Getúlio Vargas Foundation, Transparency International, Brazilian Association of Investigative Journalism, Mr. Francisco Leali

Start Date: December 2016 ..                         End Date: November 2018

Commitment Aim:

The commitment addressed issues of unresponsiveness to information requests and the misuse of denials (e.g., use of the “classified information” argument). The commitment sought to improve the effectiveness of information requests at the federal level and ensure the proper use of exceptions. It also aimed to reform the rules used to justify safeguarding classified information.

Status

Midterm: Limited

The commitment’s level of completion was limited, and it was behind schedule. The government completed Milestone 3.1 with the formation of a draft policy proposal on access-to-information requests. Milestones 3.2–3.4 were underway. The government had defined parameters for both, but it had not submitted those definitions to civil society for consultation, as originally planned. Milestone 3.4, an evaluation intended for capacity-building purposes, was planned, but its implementation was pending the approval of regulatory changes. Milestones 3.5–3.8 had not been initiated.

End of term: Substantial

Milestones 3.1–3.2 were completed, and Milestones 3.3–3.8 were substantially completed. Thus, the level of completion is substantial.

Milestone 3.2 involved simplifying the access to information policy framework. Based on contributions collected as part of Milestone 3.1, the Ministry of Transparency, Oversight, and Comptroller-General of Brazil (CGU) wrote a draft proposal to modify Presidential Decree 7.724/12. The ministry then submitted the proposal to the Ombudsperson-General of the Union (OGU) for clearance. Instead of approving it, the OGU made two key comments. First, it stated that the proposed CGU modification would require a legislative vote and, therefore, would require more than rewriting a presidential decree. Second, it noted that there were already two other presidential decrees (which would enter into force by mid-2018 ) that would solve the problem with a different solution. It also noted that new legislation (Law 13.460/2017, Public Service Users Code of Use) could be used to support the regulatory change needed. Therefore, in spite of the change of plans, the milestone can be considered achieved, albeit through a different path.

Milestones 3.3–3.8 were substantially completed. They involved making changes in 23 federal executive institutions. However, not all of these milestones were completed by the end of the implementation period. [18] Milestone 3.3 involved the development of an evaluation methodology, which the government published [19] and applied to 18 institutions (Milestone 3.4). [20] The evaluation provided by CGU about other institutions was then submitted for response (Milestone 3.5), [21] and a formal reply from the institutions was collected and published online (11 of the 18 involved institutions) [22] (Milestone 3.7). The government published on its website a list of all actions, compliance, and adjustments carried out at the end of the process (Milestone 3.8). [23]

Milestone 3.6 involved producing guidelines related to civil servant functional life and was not completed. It called for the development of recommendations on how civil servants of federal institutions should disclose personal and public information while in office, upon citizen requests. The monitoring report of the commitment considered the milestone as under development. [24]

Did It Open Government?

Access to Information: Major

The efforts made by government and civil society to monitor freedom of information requests in Brazil are positive. The Ministry of Transparency, Oversight, and Comptroller-General promoted the continuous improvement of this public service, and civil society organizations (CSOs), including those involved in the commitment, supported it. The commitment aimed to go further by co-creating ideas with civil society. Two key proposals were designed: One set a time limit for government agencies to reply to information requests and to appeals. Another established stricter rules for denying access to information based on the “use of classified information” exception clause. The government instituted a maximum deadline for answering requests and measured agencies’ honoring of that deadline.

The commitment also led to formal replies from government agencies on the adoption of the new procedures related to process and deadline maximum periods. This feedback was perceived as a positive achievement by government and civil society representatives who participated in the IRM researcher survey. Indeed, Marcelo Vidal (from the Ministry of Planning, Development, and Management) remarked that the changes improved the status quo at critical moments through better monitoring when government institutions denied access to information. Joara Marchezini (from CSO Article 19) considered the advances major, although the desired change should have been, from her perspective, even deeper.

Carried Forward?

The government did not included this commitment in the fourth national action plan. The government stated that the remaining agencies that have not completed the reviewing process will complete it in the near future. It also stated that the missing milestone, on the disclosure of civil servants’ personal information while in office, will be completed by the end of 2018. The government planned to publish the information on the Federal Transparency Portal.

[18] Ministério da Transparência e Controladoria-Geral da União, The OGP Implementation Monitoring Report, http://governoaberto.cgu.gov.br/noticias/2017/monitoramento/3o-plano-de-acao-brasileiro/Acesso-Informacao/Apresentacao/2018-22-jun-rse-3.pdf.
[19] Guia para Publicação do Rol de Informações Classificadas e Desclassificadas e de Relatórios Estatísticos sobre a Lei de Acesso à Informação, 20 September 2017, http://www.acessoainformacao.gov.br/lai-para-sic/sic-apoio-orientacoes/guias-e-orientacoes/guia-informacoes-classificadas-versao-3.pdf.
[20] Ministério da Transparência e Controladoria-Geral da União, The OGP Implementation Monitoring Report, http://governoaberto.cgu.gov.br/noticias/2017/monitoramento/3o-plano-de-acao-brasileiro/Acesso-Informacao/Apresentacao/2018-22-jun-rse-3.pdf.
[21] Ministry of Transparency, Oversight, and Comptroller General, Encaminha Ata de Reunião e Relatório de atendimento à Lei de Acesso à Informação, 24 July 2018, http://www.acessoainformacao.gov.br/lai-para-sic/sic-apoio-orientacoes/politica-monitoramento/sei_cgu-0800650-oficio.pdf.
[22] Ministry of Justice, Relatório de Atendimento à Lei de Acesso à Informação, 20 August 2018, http://www.acessoainformacao.gov.br/lai-para-sic/sic-apoio-orientacoes/politica-monitoramento/devolutiva-mj-publicacao.pdf.
[24] Ministério da Transparência e Controladoria-Geral da União, The OGP Implementation Monitoring Report, http://governoaberto.cgu.gov.br/noticias/2017/monitoramento/3o-plano-de-acao-brasileiro/Acesso-Informacao/Apresentacao/2018-22-jun-rse-3.pdf.

Commitments

Open Government Partnership