Ten years ago, Brazil enacted its Access to Information Law, which implements the constitutional guarantee of the right to information. Under the law, certain government data must be proactively disclosed, and other information must be provided upon the request of a member of the public, without the requester needing to show any special reason or justification. This law was supplemented with the enactment, last March, of the Digital Government Law, which streamlines the procedures for information requests, clarifies the government’s obligations to provide information in an open format that fulfills completeness, quality, and integrity requirements, and includes a non-exhaustive list of data that must be disclosed.
These laws, like other freedom of information laws, are intended to make government more responsive and accountable and to help fight corruption by making it easier for citizens, journalists, advocacy groups, and prosecutors to scrutinize and analyze government information for evidence of suspicious activity. But while the laws are very detailed about the rules for disclosing information upon request, the law’s provisions on proactive disclosure are not sufficiently specific or effective. And proactive disclosure is quite important. After all, while the right to request information is helpful to those who want to investigate a specific event, the proactive disclosure of data—for example, with respect to public expenditure, public procurement processes, and public contracts—may raise “red flags” that can spur more in-depth investigations.
There are three deficiencies in particular that should be remedied, so that Brazil’s freedom of information laws can be effective in ensuring the sorts of proactive information disclosure that can foster transparency and detect or deter corruption:
- First, although the laws require that the government publish information on online platforms that are reliable, trustworthy, and readily accessible, there is no mechanism or procedure to assure that public officers will observe these requirements. One would hope that we could take for granted that the data published by the government on its websites would be accurate and accessible, but this is not always the case. Consider, for example, the recent “condensed milk scandal”: A news agency reported, based on an examination of a government procurement website, that the Brazilian federal government had spent more than R$15 million (almost US$3 million) on condensed milk for the President and his close staff—an outrageous expenditure corresponding to roughly 7,200 cans of condensed milk per day. After a public outcry and demand for further inquiry, the government claimed that the information previously on the site was an error, and that in fact total expenditure on condensed milk was only R$2.5 million, and was for all federal government departments including the armed forces. Even after this clarification, journalists reported that the official website gave different and inconsistent figures depending on how one searched. Although this could be seen as an isolated incident, it suggests reason for concern regarding the accuracy, reliability, and openness of the data disclosed by the government. To remedy this deficiency, Brazil should put an independent agency in charge of periodically evaluating the accuracy of the information disclosed on government websites, and sanctioning departments that fail to comply with the law.
- Second, the law leaves government officials too much room for discretion in choosing which data must be disclosed and the amount of detail that must be provided, and does not adequately prevent government agencies from obscuring important information by publishing overlapping or meaningless reports. To address this problem, the law should require that agencies follow something like the “good practices” recommendations provided in Transparency International Brazil’s Transparency Recommendations in Public Procurement, which focused on COVID-19 emergency procurement. The government should also make a practice of proactively sharing with the general public information that was provided to a specific member of the public pursuant to an information request.
- Third, the law includes a broad exemption from ordinary disclosure requirements for information pertaining to national security. That is not by itself unusual or problematic—national security often requires a degree of secrecy. However, national security exceptions can be misused to cover up information about suspicious procurement deals. For example, the Brazilian government invoked the national security exception to justify refusal to publicize information about the purchase of a satellite to monitor Amazon deforestation, which cost US$33.8 million. This purchase raised red flags: it was not preceded by a public procurement process, and the deal was closed despite the fact that the responsible agency was against it. (The agency’s experts had concluded that this satellite could not differentiate forest and open camp, making it useless for monitoring deforestation. In addition, the agency already had sufficient monitoring equipment.) While national security interests might justify withholding certain pieces of information about this satellite, such as those related to aspects of its operations, there is not a good national security reason to keep secret more general information about the purchase, such as its general purpose, the identity of the contractor, and the justification for the price paid (especially when other, less expensive options may have been available). More generally, the national security exemption from proactive disclosure ought to be construed more narrowly and stringently, and the government should be under a heavy burden to justify keeping information about military or intelligence procurement fully classified.
Although the Brazilian Access to Information Law and the Digital Government Law represent important advances, there is still some way to go toward making the law’s information disclosure requirements fully effective. Addressing the three issues discussed above would help these laws fully realize their potential in promoting transparency, suppressing corruption, and increasing public confidence in the government’s integrity and effectiveness.