Brazil does not punish public servants who don't comply with access to information law, says Article 19

Civil servants who do not comply with the Law on Access to Information (LAI) in Brazil are not punished, according to a recent report from Article 19 Brazil, an NGO that defends freedom of expression and the right to information. The report was launched in celebration of the five-year law, which became effective on May 16.

"We investigated whether, in those five years, anyone has suffered sanctions, and we have not found any cases in the country. The law provides for punishments, including verbal warnings or removal from office, and more severe punishments such as administrative misconduct. But, in practice, this does not happen. Before, servants were punished for passing information, so it is a big change for them to punished for the opposite reason. This has not yet happened," Joara Marchezini, Article 19 Brazil coordinator for Access to Information, told the Knight Center.

The lack of enforcement and noncompliance with LAI is one of the main challenges highlighted by journalism and human rights entities on the five-year anniversary of the legislation.

In an article for Folha de S. Paulo, Abraji (the Brazilian Association of Investigative Journalism), Article 19, Conectas Direitos Humanos and Transparência Brasil defended the creation of an independent and specialized national body that can implement and supervise compliance with the LAI in all spheres and levels of power.

The demand is old, according to the entities. "This is a demand that has existed since the first year of LAI, we have already identified this void in the law," Marchezini said. However, representatives of the same organizations say that, unfortunately, the creation of the body is a distant reality.

"The fight now is to keep what already exists, the creation of something new is difficult. Beyond civil society, I do not see a concern with this issue. We are afraid to touch it in case politicians decide to make the law worse. But a supervisory body is very necessary, at some point this needs to be discussed," Abraji's executive manager Marina Atoji told the Knight Center.

The strategy of securing what has already been achieved has to do with recent setbacks. According to Article 19’s report, entities of control such as the Office of the Comptroller General (CGU for its acronym in Portuguese) have been weakened by budget cuts, loss of human resources and status. In the absence of a body to oversee the LAI, the CGU partly assumed this role, even beyond its sphere of action, which in principle is restricted to the Federal Executive Branch. The Comptroller is therefore considered fundamental for a better application of LAI in Brazil.

"It had the status of a super ministry, but it has just lost its connection link with the presidency. Now the CGU is at the same hierarchical level as the ministries that it needs to oversee. It is an institution you can appeal to for LAI decisions, but at the same hierarchical level. The idea was for these organs to be strengthened, but they began to revert in terms of political autonomy. It is a move to weaken them," Marchezini said.

The same thing occurred in the municipality of São Paulo at the beginning of 2017, when the General Comptroller of the Municipality (CGM-SP) lost the status of secretary and was incorporated by the Municipal Secretariat of Justice.

Without a central body and a weakened CGU, journalism and human rights entities stress that enforcement of the law is extremely heterogeneous in the country. The application varies in the Executive, Legislative and Judiciary - this last being the power considered the least transparent - and in the federal, state and municipal spheres. In some cities, even large cities, the law is simply ignored.

According to a survey by Transparência Brasil and Abraji, in the scope of the project Achados e Pedidos, there are cases in which it is impossible to even send the request for information. The entities made 212 applications to federal, state and municipal agencies of the three powers, and only 25 percent were answered or partially answered. In 56 percent of the cases, there was no response, and in 19 percent of the cases, the requests were denied.

"As federal autonomy exists, each sphere has the autonomy to implement the law. So, it ends up depending very much on the will of the public agent and the pressure of civil society," Juliana Sakai, research coordinator at Transparência Brasil, told the Knight Center.

Sakai still remembers an answer that took more than two years to arrive. The Article 19 report also relates a case where information on the environmental impact of a construction was only received when the work had already been completed.

"So it is not only important to guarantee access to information, but also to be timely, so that you can have effective participation and change," Marchezini explained.

For journalists, the response time is an even more relevant issue. "LAI already has a deadline that is very different from the deadline of the journalist and, in many cases, the deadline is not met," Atoji said.

The delay in responding may be due to a number of reasons, such as management problems or even the intention of not providing the data, but there are also difficulties in producing the information. The lack of staff, resources and incentives for data processing make many public agents claim "additional work" as a justification for not responding to requests.

"This justification of additional work is abused. If you do not have the investment in human and material resources to produce data, you will always have additional work. So the production of information and active transparency are important so that each request does not face the issue of additional work," Conectas executive director Juana Kweitel told the crowd at an event marking the five years of the law.

In addition to Kweitel, representatives of journalism organizations highlighted the importance of active transparency, that is, when organs publish, in an easy, efficient and constant way, statistics and data of public interest on websites, for example. This also prevents several requests for information on the same subject from being made, saving work for public bodies.

"Active transparency in Brazil is still very flawed. And for the journalist, this is very important. [With active transparency] you do not have to ask for the official version, from the press agents, to cover official data. And you can do it, many times, in a more in-depth way, with active transparency than with a response from the body itself," Atoji said.

Identification of the journalist

One of the main problems with the application of the LAI today is the identification of the applicant, which can hinder access to information or jeopardize the person making the request.

“In many cases, the request for information circulates with the name of the applicant. This can be dangerous, especially when they are well-known people or in small towns. Additionally, we know that the same request is answered, or not, depending on who requested the information,” Kweitel warned. According to her, it is important to create mechanisms for the protection of the applicant's personal data without, however, having to change the text of the LAI.

Atoji said that identification negatively affects the work of journalists. "They face more difficulties than other people when trying to get answers. Including longer delays, or being directed to and answered by the press office, not by the agency that has the information. And the press office's response is not the same as one from the technical body. This is happening in the federal government, and with more intensity in the local spheres," she said.

Despite the problems, experts said there are also reasons to celebrate the five years of the law.

The Article 19 report states that there has been considerable progress in the volume of information accessible to the population, several public agencies have implemented active transparency practices and systems for requesting information, and the use of LAI by researchers and journalists has increased.

"It is very difficult to change from a national culture of well-established secrecy to one of transparency. But in a historical perspective, we continue to advance. At least we have the law, which is good," Marchezini said.

Note from the editor: This story was originally published by the Knight Center’s blog Journalism in the Americas, the predecessor of LatAm Journalism Review.