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

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: [email protected] 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

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]

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.

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

4.1 – Legal Study (to guide the regulatory change)

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

Commitment Aim:

Commitment 4 addressed the need to protect the personal details of requesters of public information. Such personal data can be used by the government to deny answering an information request or for ulterior purposes. The commitment aimed to ensure that requesters’ personal information is safeguarded whenever possible. This may prevent deferential treatment and ensure a neutral access-to-information policy. 

Status

Midterm: Limited

The commitment saw a limited level of completion and was behind schedule. The government completed Milestones 4.1 and 4.2. Those milestones involved a legal study on how to adjust the government's policy to the commitment needs and a comparative study on safeguarding requesters’ personal information. Milestone 4.4 was underway. It involved rules regarding requesters’ information. The government had drafted these rules, but the process was paused by a legal consulting unit. The rules are under revision. The other milestones had not been started.

End of term: Limited

Milestones 4.1–4.4 were completed, while Milestones 4.5–4.6 are underway. Milestone 4.7 was not completed. Therefore, the level of completion is limited.

Milestones 4.3 and 4.4 involved a regulatory change to ensure the safeguarding of requesters’ personal information. The regulatory change also would detail cases in which requesters’ personal information could be kept by public authorities. The milestones were completed, but the government did so by using a different strategy. It originally planned to modify Presidential Decree D. 7.724/12, which, as explained in Commitment 3, was denied by the Ombudsperson-General of the Union (OGU). As is the case with Commitment 3, the OGU suggested that Law 13.460/2017—the Public Service Users Code of Use, approved by Congress in 2017—had provisions in its Article 10 that could be used in favor of the commitment. The article brought provisions that made safeguarding requesters’ personal information possible. [25]

Milestones 4.5 and 4.7 involve the implementation phase, which includes updating the freedom of information process to protect requesters’ personal information (4.5) and an evaluation of the process results (4.7). According to the government, [26] it initiated the task but did not implement it. Both milestones are therefore considered not achieved.

Milestone 4.6 involves a petition or study to support the regulatory change needed. Given that the commitment was achieved using an alternative plan, the government considered the milestone not necessary. Due to that, the IRM researcher considers the milestone null.

Did It Open Government?

Access to Information: Marginal

Before the commitment started, it was not possible to ensure requesters’ personal information would be safeguarded. As part of the commitment, the legal framework to protect requesters’ information changed, but the policy was not fully implemented. In spite of the limited completion, both government and civil society representatives (Marcelo Vidal and Joara Marchezini from the Ministry of Planning, Development and Management and from the organization Article 19, respectively) consider the contribution relevant to open government.

Carried Forward?

The commitment was not included in the fourth action plan. The government has stated that the implementation and evaluation of the procedures to implement the remaining milestones are ongoing. [27] Considering the limited completion of the commitment, it is critical that the government continue the policy implementation and proceed with the evaluation of its results.