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Brazil

Access to Information Policy in the Federal Government – Requesters’ Personal Information Safeguard (BR0087)

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

Legislation & Regulation, Right to Information

IRM Review

IRM Report: Brazil Mid-Term Report 2016-2018

Starred: No

Early Results: Marginal

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 20206538 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 Every information access request is sent to agencies, which are in charge of the applicable subject, with detailled requester´s personal information. This has brought, in some circumstances, discomfort and subjective responses of those information access requests Main objective To promote the right to information access, as established by Information Access Act, curbing the access barriers and improving its answer effectiveness Commitment short description Contribute for the safeguard of the access to information requester´s personal data, whenever there is an identity disclosure, which may provoke a differentiated treatment OGP Challenge addressed by the Commitment Improvement of Public Services Commitment relevance Relevant for the advancement of citizen participation, regarding the information access Goal Request answered, regardless the requester´s personal information

IRM Midterm Status Summary

4. Access to Information Policy in the Federal Government – Requesters’ Personal Information Safeguard

Commitment Text:

Ensure requester’s personal information safeguard, whenever necessary, by means of adjustments in procedures

The commitment seeks to contribute for the safeguard of the access to information requester´s personal data, whenever there is an identity disclosure, which may provoke a differentiated treatment. It also intends to carry out legal studies and international comparisons, so that it can open room for a public information requesting model which may be compatible with the current law and that may disclose only the least necessary information about requesters, with the intent of guaranteeing neutrality while disclosing information.

4.1 – Legal Study

4.2 – International comparative study on how the requester´s personal information safeguarding works, with its implications

4.3 – Rule(s) about requesters´ personal information processing

4.4 – Defensible situations establishment

4.5 – Proceeding review, whenever situations can happen anonymously, and access information system implementation

4.6 – Undersigning arrangement, in order to safeguard requesters´ personal information, taking into account the studies related to the subject

4.7 –Results evaluation

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: July 2018

Context and Objectives

Commitments 3 and 4 are closely related, and their results are linked. Both commitments address a key policy problem: improving the quality and safeguarding access-to-information requests. Commitment 3 addresses the misuse of the classified information argument as a reason to deny access to information. Commitment 4 addresses the need to protect the personal information of requesters of information. Such information can be used by the government to deny information or for ulterior purposes.

According to the action plan, governmental agencies may currently provide subjective treatment of information requests based on the identity of the requester (e.g., investigative journalists or civil society organizations). This commitment therefore aims to ensure that requesters’ personal information is safeguarded, whenever possible. Doing so may prevent deferential treatment and ensure a neutral access-to-information policy.[1]

To achieve this objective, the government set seven milestones. These include producing a legal study on how to draft policies to enforce such a safeguard, a study of how other countries cope with the issue, and new rules about processing requesters’ personal information. Once a solution is devised, the government aims to implement changes to the process and evaluate the results.

The misuse of requesters’ information by government agencies is an important issue. In a five-year study of the Freedom of Information Act in Brazil, the Getúlio Vargas Foundation found that the law is effective and highly used by government and civil society.[2] In a separate report, the government acknowledged that the law is one of the most effective in recent times.[3] However, scientific evidence shows that the process of obtaining public information from governmental agencies should be applicant blind and nondiscriminatory. Such evidence also shows that in Brazil, particularly at the municipal level, public administrators search requesters on Google and discriminate on the basis of identity.[4]

The commitment’s level of specificity is medium. The scope of many of the activities remains unclear (e.g., the depth of the international comparative and legal studies are not specified). The commitment does delineate the steps necessary to achieve the overall objective.

The commitment is relevant to the OGP value of access to information. The protection of personal data is, by itself, not directly evaluated by the OGP process. However, the ultimate objective of this commitment is to avoid biased government responses to information requests, which would clearly improve the access-to-information process. A neutral access to information policy would also help people feel comfortable requesting information, which could benefit other areas, such as the fight against corruption.

The commitment has a moderate potential impact. The protection of personal data in information requests could improve the neutrality of the process. Such protection could also help prevent cases of discrimination like those cited above, which are a key problem in Brazil. While it is hard to identify the extent of the problem because the government lacks information on the identities of information requesters,[5] particularly in city- or state-level institutions,[6] the problem clearly exists, as evidenced by recent reports of bias in responding to information requests.[7] Ultimately, the possible impact of the new safeguards will depend on how they are designed and implemented, actions that will occur based on the results of the legal and comparative studies.

Completion

The commitment has a limited level of completion. Only the first two milestones, which refer to preliminary studies, were completed by the midterm. The legal study of how to adjust the government's policy to the commitment needs (milestone 4.1) was published in July 2017.[8] It provides an assessment of how the constitutional principle of anonymity should be understood in the case of protecting the requester’s name. The Getúlio Vargas Foundation executed the comparative study on safeguarding requesters’ personal information (milestone 4.2) and submitted it for public consultation in April 2017.[9]

Milestone 4.4 is underway. It involves the identification of justifiable cases to protect the requester's identity in the Electronic System of Information Services to the Citizen, the government's freedom-of-information system. The Ministry of Transparency, Oversight, and Comptroller-General (CGU) submitted a request for analysis to its Legal Consulting Unit, which rejected the proposed view on safeguarding the requester's identity. CGU sent a counterargument and was waiting for a reply at the time of writing. The communication is internal to government but was sent to the IRM researcher for verification.

Milestones 4.3, 4.5, and 4.7 have not been started and are pending the conclusion of milestone 4.3. As mentioned in the action plan, milestones 4.1-4.4 and 4.6 were expected to be delivered by October 2017, which means that the commitment is behind schedule.

Early Results (if any)

Two civil society groups (Article 19 and the Brazilian Association of Investigative Journalism) and a government ministry (the Ministry of Planning, Development, and Management) have confirmed the importance of the commitment to the IRM researcher.

Positive contributions lie in the studies conducted as part of this commitment: the comparative work and the legal study on protecting a requester's identity. The analyses focus on the constitutional understanding of how anonymity can be secured and how the requester’s identity can be safeguarded.

In terms of proper results, however, it is too early to analyze the effects of this commitment on open government. The changes to access-to-information procedures have yet to be implemented.

Next Steps

After this commitment is implemented, the government could address similar misuses of requesters' information in access-to-information cases in other branches of government. Article 19 has pointed out that when courts act as the last appeal agency, they also withhold information in access-to-information cases, using the Access to Information Law.[10] Both the Brazilian Association of Investigative Journalism and Transparency Brazil highlighted the need to transform the access-to-information process to one of active disclosure of information.[11]

[1] Gregory Michener and Karina Rodrigues, 'Who Wants to Know? Assessing Discrimination in Transparency and Freedom of Information Regimes' (paper presentation, 4th Global Conference on Transparency Studies, Lugano, Switzerland, 4­–6 June 2015), https://goo.gl/75phhG.

[2] 'Working Paper: From Opacity to Transparency? Evaluation the 5 Years of the Law on Access to Brazilian Information,' Programa de Transparencia Publica, http://transparencia.ebape.fgv.br/working-paper-opacidade-transparencia-avaliando-5-anos-lei-de-acesso-informacao-brasileira.

[3] Isabela Vieira, 'Law on Access to Information ‘Caught Up,’ Experts Say,' Agencia Brasil, 21 August 2014, http://agenciabrasil.ebc.com.br/direitos-humanos/noticia/2014-08/lei-de-acesso-informacao-pegou-avaliam-especialistas.

[4] Rafael Antonio Braem Velasco, 'Who Wants to Know? A Field Experiment to Assess Discrimination in Freedom of Information Regimes,' FGV Digital Repository, December 2016, http://bibliotecadigital.fgv.br/dspace/handle/10438/18220.

[5] Article 19, Leis de Acesso a Informacao: Dilemas da Implementacao,' https://monitorando.files.wordpress.com/2011/11/estudos-em-liberdade-de-informaccca7acc83o-1-web.pdf.

[6] 'Study Shows That States and Municipalities Are Poor in Access to Information,' FGV, 22 May 2017, https://portal.fgv.br/noticias/estudo-mostra-estados-e-municipios-deixam-desejar-acesso-informacao.

[7] Luiz Fernando Toledo, 'Gestão Doria age para dificultar a Lei de Acesso à Informação,' Estadão, 8 November 2017, http://sao-paulo.estadao.com.br/noticias/geral,gestao-doria-dificulta-acesso-a-dados-e-viola-lei-de-acesso-a-informacao,70002075921

[8] See SEI_CGU-0322492 – Nota Técnica (Nota Técnica) and Parecer n. 0166/2017/CONJURCGU/ CGU/AGU.

[9] 'Identification of the Applicant Is a Barrier to Access to Information,' FGV, 25 April 2017, http://portal.fgv.br/noticias/identificacao-solicitante-e-barreira-acesso-informacao-aponta-estudo-ebape.

[10] 'Article 19 Launches Reporto n Jurisprudence of the Law of Access to Information,' Agencia Patricia Galvao, 18 August 2017, http://agenciapatriciagalvao.org.br/agenda/artigo-19-lanca-relatorio-sobre-jurisprudencia-da-lei-de-acesso-informacao-sp-28092017/.

[11] Mariana Timoteo da Costa, 'Abraji and Transparency Brazil Launch Site Giving Access to Public Information,' Globo.com, 13 March 2017, https://oglobo.globo.com/brasil/abraji-transparencia-brasil-lancam-site-que-da-acesso-informacoes-publicas-21050129.

Commitments

  1. Subnational Good Governance

    BR0100, 2018, Capacity Building

  2. Open Data Policy

    BR0101, 2018, E-Government

  3. Scientific Data Governance

    BR0102, 2018, E-Government

  4. Capacity-Building and Oversight on Nutrition Policy

    BR0103, 2018, Capacity Building

  5. Transport Data

    BR0104, 2018, E-Government

  6. Transparency and Oversight in Infrastructure Repair Processes

    BR0105, 2018, Capacity Building

  7. Increase Participation in Legislative Process

    BR0106, 2018, Capacity Building

  8. Urban and Rural Land Registers

    BR0107, 2018, E-Government

  9. Climate Change Policy Evaluation

    BR0108, 2018, E-Government

  10. Water Resource Management

    BR0109, 2018, Capacity Building

  11. National Electronic System/ATI implementation

    BR0110, 2018, E-Government

  12. Open Data on the Federal Government

    BR0084, 2016, Capacity Building

  13. Transparency of Public Funds

    BR0085, 2016, Capacity Building

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

    BR0086, 2016, Capacity Building

  15. Access to Information Policy in the Federal Government – Requesters’ Personal Information Safeguard

    BR0087, 2016, Legislation & Regulation

  16. Effectiveness of National Policy for Social Participation Mechanisms

    BR0088, 2016, Capacity Building

  17. Starred commitment Digital Educational Resources

    BR0089, 2016, Capacity Building

  18. Open Data and Information Governance in Health

    BR0090, 2016, E-Government

  19. Prevention to Torture and Mean, Inhuman, or Humiliating Treatments in the Penitentiary System

    BR0091, 2016, Capacity Building

  20. Innovation Spaces for Management in Public Services

    BR0092, 2016, Capacity Building

  21. Assessment and Streamline of Public Services

    BR0093, 2016, E-Government

  22. Open Innovation and Transparency in the Legislative

    BR0094, 2016, Capacity Building

  23. Fostering Open Government in States and Municipalities

    BR0095, 2016, Capacity Building

  24. Transparency and Innovation in the Judiciary

    BR0096, 2016, Capacity Building

  25. Social Participation in Federal Government’S Planning Cycle

    BR0097, 2016, E-Government

  26. Open Data and Active Transparency in Environment Issues

    BR0098, 2016, Environment and Climate

  27. Mapping and Participatory Management for Culture

    BR0099, 2016, Capacity Building

  28. Probity Defense and Asset Recovery

    BR0033, 2013, Anti-Corruption Institutions

  29. Development of a Methodology for Social Participation on the Monitoring of the Pluriannual Plan (PPA) and on the Formulation of the Federal Public Budget

    BR0034, 2013, Capacity Building

  30. Development of the Monitoring System for the Social Movements Demands

    BR0035, 2013, Capacity Building

  31. Capacity-Building of Educators, Political Agents, Public Managers, Councilors for Social Policies and Community Leaderships

    BR0036, 2013, Capacity Building

  32. Encourage States and Municipalities to Endorse the OGP Four Principles

    BR0037, 2013, Capacity Building

  33. Implementation of the ODP.Nano

    BR0038, 2013, Oversight of Budget/Fiscal Policies

  34. Strengthening of the Office of the Comptroller General (CGU)

    BR0039, 2013, Anti-Corruption Institutions

  35. Online Accountability of Resources for Education Within the National Fund for Education Development

    BR0040, 2013, E-Government

  36. Generation of Knowledge and Capacity-Building of Managers and Public Resources Operator’S Partners and of Councilors for Social Control

    BR0041, 2013, Capacity Building

  37. National Program for Strengthening School Councils

    BR0042, 2013, Capacity Building

  38. Development of a Unified and Interactive Information Panel on the Implementation of the Water for All Program, Which Can Be Publicly Accessed Through the Internet

    BR0043, 2013, Capacity Building

  39. Digital Inclusion of Health Councils

    BR0044, 2013, E-Government

  40. Starred commitment Development of Tools for Increasing Transparency and Enhancing Land Governance

    BR0045, 2013, E-Government

  41. Implementation of the Document Management Policy in the Federal Government

    BR0046, 2013, Capacity Building

  42. Development of the “Access to Information Library”

    BR0047, 2013, Capacity Building

  43. Disclosure of Data from the Execution of the Union Budget and from Government Purchases

    BR0048, 2013, Fiscal Transparency

  44. Dissemination of the Public Open Data Culture to the Local Governments

    BR0049, 2013, Capacity Building

  45. Development of Support Technologies and Licensing Models for the Disclosure of Open Data

    BR0050, 2013, E-Government

  46. Disclosure of Information from Government Systems in an Open Data Format

    BR0051, 2013, Open Data

  47. Corporative Information Management in Social Security (E-Governance)

    BR0052, 2013, E-Government

  48. Improvement of Active Transparency and of the Unique Health System’ Ombudsman Unit

    BR0053, 2013, Health

  49. Strengthening of the National Audit System of the Unique Health System (SUS)

    BR0054, 2013, Audits and Controls

  50. Increasing Public Transparency of the Labor Relations Secretariat of the Ministry of Labor and Employment

    BR0055, 2013, E-Government

  51. Disclosure of Recommendations to Carry Out Public Audiences to Serve as Reference for the Government

    BR0056, 2013, Capacity Building

  52. Development of a Database of the Federal Public Administration Purchases Prices

    BR0057, 2013, E-Government

  53. Participatory Audits on the Constructions of Brazilian Host Cities for the 2014 FIFA World Cup

    BR0058, 2013, Audits and Controls

  54. Development of an Indicators Model for Transparency of Brazilian Municipalities Institutional Development

    BR0059, 2013, Capacity Building

  55. Development of a Brazilian Portal for the Open Government Partnership (OGP)

    BR0060, 2013, E-Government

  56. Development of Monitoring Reports on the Electronic Citizen Information System (e-SIC)

    BR0061, 2013, E-Government

  57. Encouragement of Social Participation

    BR0062, 2013, Anti-Corruption Institutions

  58. Formulation and Implementation of the Ministry of Defense’S Information Management Policy

    BR0063, 2013, Records Management

  59. Development of a Database of Administrative Documents Produced by Brazil’S Navy

    BR0064, 2013, Public Participation

  60. Open Educational Data

    BR0065, 2013, Education

  61. Improvement of Data Transparency from the National Consumer Protection Information System (Sindec)

    BR0066, 2013, Legislation & Regulation

  62. Restructuring of the Brazilian Federal Government Transparency Portal

    BR0067, 2013, E-Government

  63. Electronic System for Public Consultations

    BR0068, 2013, E-Government

  64. Improvement of Health Services Through the Increased Use of the National Health Card

    BR0069, 2013, Health

  65. Participatory Development of the Federal Ombudsman System

    BR0070, 2013, Justice

  66. “Brazil Transparent” Program

    BR0071, 2013, Capacity Building

  67. Development of the Unique Health System Letter

    BR0072, 2013, Health

  68. Digital Cities Project

    BR0073, 2013, E-Government

  69. Development of the National System for the Promotion of Racial Equality (SINAPIR)

    BR0074, 2013, Human Rights

  70. Improvement of Mechanisms for Social Participation in the Formulation of Public Policies

    BR0075, 2013, Public Participation

  71. Brazilian Portal for Social Participation

    BR0076, 2013, E-Government

  72. Open Data in the Ministry of Justice

    BR0077, 2013, Justice

  73. Improvement of the Pro-Ethics Company Registry

    BR0078, 2013, Private Sector

  74. Expansion of the Database of the National Debarment List (CEIS):

    BR0079, 2013, Open Contracting and Procurement

  75. Monitoring of the National Plan for Food and Nutrition Security (PLANSAN)

    BR0080, 2013, Health

  76. Development of an Information System on the Maria Da Penha Law (Law No. 11,340/2006)

    BR0081, 2013, Gender

  77. Development of Processes for Prior Consultation Under the 169 Convention of the International Labour Organization’S (ILO)

    BR0082, 2013, Labor

  78. Redesign of the Current Protection Programs

    BR0083, 2013, Human Rights

  79. Capacity Building Programs

    BR0001, 2011, Capacity Building

  80. Distance Education Program

    BR0002, 2011, Capacity Building

  81. Guide for Public Officials on Access to Information

    BR0003, 2011, Capacity Building

  82. Information Services Model

    BR0004, 2011, E-Government

  83. Diagnostic Study on the Transparency Values of Executive Branch

    BR0005, 2011, Right to Information

  84. Diagnostic Study on Role of Federal Ombudsman Units (FOUs)

    BR0006, 2011, Justice

  85. Research Study to Identify the Demands of Society in Regard to Access to Information

    BR0007, 2011, Right to Information

  86. Preparation of a Catalogue of Public Data and Information

    BR0008, 2011, Capacity Building

  87. Organization of a Meeting of the Inter-Council Forum Multi-Year Plan 2012–15 (Phase 2)

    BR0009, 2011, Capacity Building

  88. Organization of the 1st National Conference on Transparency and Social Control (1St Consocial)

    BR0010, 2011, Capacity Building

  89. Organization of the 1st National Open Data Meeting

    BR0011, 2011, Capacity Building

  90. Organization of the National Seminar on Social Participation

    BR0012, 2011, Capacity Building

  91. Partnership with the Digital Culture Laboratory

    BR0013, 2011, Capacity Building

  92. Partnership with World Wide Web Consortium (W3C) Brazil

    BR0014, 2011, Capacity Building

  93. Development of the National Open Data Infrastructure (INDA)

    BR0015, 2011, E-Government

  94. INDA Capacity Building Plan

    BR0016, 2011, Capacity Building

  95. INDA Awareness- Raising Activities

    BR0017, 2011, Capacity Building

  96. Launch of the Brazil Open Data Portal

    BR0018, 2011, E-Government

  97. Resource Transfer Agreements and Contract System (SICONV)

    BR0019, 2011, Fiscal Transparency

  98. Aquarius Platform

    BR0020, 2011, E-Government

  99. Data Warehouse

    BR0021, 2011, E-Government

  100. Restructuring the Transparency Portal

    BR0022, 2011, E-Government

  101. Facilitate Access to Specific Databases

    BR0023, 2011, E-Government

  102. Interactive School Development Plan

    BR0024, 2011, E-Government

  103. Control Panel for the Integrated Monitoring and Oversight System (Public Module)

    BR0025, 2011, E-Government

  104. United Suppliers Registry (SICAF)

    BR0026, 2011, E-Government

  105. Registry of National Education Prices

    BR0027, 2011, Education

  106. Contractual Management of IT Services

    BR0028, 2011, E-Government

  107. Implementation of Pro-Ethics Company Registry

    BR0029, 2011, Private Sector

  108. Systemic Integration of Ombudsman Units

    BR0030, 2011, E-Government

  109. Continued Training for Public Ombudsman Units

    BR0031, 2011, Capacity Building

  110. Public Services Portal

    BR0032, 2011, Open Data