Brazil
Name of law: Law No. 12,527, of November 18,2011, which provides for access to informationpursuant to the caption of Article 5, item XXXIII;Article 37, Paragraph 3, item II; and Article 216,Paragraph 2 of the Federal Constitution
First adopted: 2011
Last modified: n/a
RTI Rating last updated: n/a
First adopted: 2011
Last modified: n/a
RTI Rating last updated: n/a
Introduction
Brazil's has a fairly strong RTI law, including strong recognition of the right to information and the benefits of transparency, and a very broad scope. Unfortunately, the law in its current form is vague in many vital areas, most significantly around the appeals process and the composition and operations of the main oversight body, the Commission for Reassessment of Information. The law states that this will be clarified by regulation, but as of February 2020, this has not yet happened. It also has an unduly broad regime of exceptions, which may be overridden by secrecy laws, and includes weaknesses in terms of overbroad exceptions and a rather weak public interest override. It also fails to provide protection for officials who release information in good faith.
Local Experts: Priscila Castello Branco, Renata Alves de Figueiredo
| id | Section | Points | Max score |
|---|---|---|---|
| 1 | Right of Access | 6 | 6 |
| 2 | Scope | 29 | 30 |
| 3 | Requesting Procedures | 19 | 30 |
| 4 | Exceptions & Refusal | 16 | 30 |
| 5 | Appeals | 22 | 30 |
| 6 | Sanctions & Protections | 3 | 8 |
| 7 | Promotional Measures | 13 | 16 |
| ∑ = 108 | ∑ = 150 |
| Section | I | Description | Scoring instructions | Max score | Findings | Points | Article | Comments |
|---|---|---|---|---|---|---|---|---|
1. Right of Access |
1 | The legal framework (including jurisprudence) recognises a fundamental right of access to information. | Score 0 for no constitutional right to information, 1 point for a limited constitutional right, 2 points for full constitutional recognition of a public right of access to information. | 2 | YES | 2 | Article 14 of Brazilian Constitution: access to information is assured to everyone, protecting the confidentiality of sources when necessary for professional activity; Article 33: all persons have the right to receive from public agencies information in their private interest or of collective or general interest; such information shall be furnished within the period established by law, under penalty of liability, except for information whose secrecy is essential to the security of society and of the National Government | Secrecy exception potentially problematic but two points still given. |
1. Right of Access |
2 | The legal framework creates a specific presumption in favour of access to all information held by public authorities, subject only to limited exceptions. | No=0, Partially=1, Yes=2 | 2 | YES | 2 | Article 3. The procedures established by this Law are intended to ensure the fundamental right of the access to information and should be performed according to the basic principles of the Public Administration and the following guidelines: I – observance of publicity as a general rule and of secrecy as the exception;(...) | BRAZILIAN ACCESS TO INFORMATION BILL APPROVED BY THE SENATE ON 25 OCTOBER 2011 |
1. Right of Access |
3 | The legal framework contains a specific statement of principles calling for a broad interpretation of the RTI law. The legal framework emphasises the benefits of the right to information. | One point for each characteristic. | 2 | YES | 2 | Article 3. The procedures established by this Law are intended to ensure the fundamental right of the access to information and should be performed according to the basic principles of the Public Administration and the following guidelines: I – observance of publicity as a general rule and of secrecy as the exception; II – disclosure of information of public interest, irrespective of requests; III – use of the means of communication available through information technology; IV – promotion of a culture of transparency within the Public Administration; V – development of the social control of the Public Administration | BRAZILIAN ACCESS TO INFORMATION BILL APPROVED BY THE SENATE ON 25 OCTOBER 2011 ARTICLE 3 [promotion of culture of transparency and development of social control over public admin.] |
2. Scope |
4 | Everyone (including non-citizens and legal entities) has the right to file requests for information. | Score 0 point if only residents/citizens; 1 point for all natural persons; 1 point for legal persons. | 2 | YES | 2 | Article 10. The request for access, which may be performed by any person, shall be submitted by any legitimate means to bodies and entities referred to under Article 1 of this Law, and shall include the applicant's identification and specification of the requested information. Article 2. The public bodies and entities that form the federal Executive Branch shall ensure to both individuals and legal entities the right of access to information, which shall be granted upon the observance of objective and quick proceedings, performed in a transparent manner, and stipulated in an easily understandable language, in compliance with the principles of the public administration and the guidelines set forth in Law No. 12,527, of 2011 | BRAZILIAN ACCESS TO INFORMATION BILL APPROVED BY THE SENATE ON 25 OCTOBER 2011 Law 10, DECREE No7,724, OF MAY 16, 2012 Regs Art 2. |
2. Scope |
5 | The right of access applies to all material held by or on behalf of public authorities which is recorded in any format, regardless of who produced it. | Score 1-3 points if limited definition of information information such as not "internal documents" or databases excluded, 4 points for all information with no exceptions. | 4 | YES | 4 | Article 4. For the purpose of this Law, one shall consider: I – information: processed or unprocessed data that can be used in the production and transmission of knowledge, within any media, support or format; Article 3. For the purposes of this Decree, one shall consider: I – information - processed or unprocessed data that can be used in the production and transmission of knowledge, within any media, support or format; II – processed data data submitted to any operation or treatment performed by either electronic processing or automated means, with the support of information technology; III – document- unit of recorded information regardless of its support or format; IV – classified information-that piece of information which is temporarily unavailable to public access due to its relevance to social and State security, and other information protected under legal secrecy clauses; V – personal information-that piece of information which is related to an identified or identifiable individual, with respect to his/her intimacy, private life, honour and image; VI – handling of information-set of actions related to information production, reception, rating, use, access, reproduction, transportation, transmission, distribution, filing, storage, exclusion, evaluation, destination or control; VII – availability- quality of the information that can be accessed and used by authorized individuals, equipment or systems; VIII – authenticity- quality of the information produced, sent, received or modified by a determined individual, equipment or system; IX – integrity- quality of the non- modified information, encompassing its origin, traffic and destination; X – primary-quality of first-hand unfiltered information, retrieved from original sources, comprising as many details as possible on a given subject, without any changes or amendments; XI – updated information information that comprises updated data on a given subject, in conformity with its nature, whose related time frames were set forth either in specific rules or according to the periodicity established in the computerized systems that organize such type of information; XII – preparatory document "official document elaborated to subsidize a decision making or an administrative act, i.e. opinions and technical notes. | BRAZILIAN ACCESS TO INFORMATION BILL APPROVED BY THE SENATE ON 25 OCTOBER 2011 Law 4(1), DECREE No7,724, OF MAY 16, 2012 Art 3 |
2. Scope |
6 | Requesters have a right to access both information and records/documents (i.e. a right both to ask for information and to apply for specific documents). | Score 1 point for only documents, 1 point for information. | 2 | YES | 2 | Article 4. For the purpose of this Law, one shall consider: I – information: processed or unprocessed data that can be used in the production and transmission of knowledge, within any media, support or format; II – document: unit of information recorded regardless of its support or format; | BRAZILIAN ACCESS TO INFORMATION BILL APPROVED BY THE SENATE ON 25 OCTOBER 2011 4(1) and 4(2) |
2. Scope |
7 | The right of access applies to the executive branch with no bodies or classes of information excluded.This includes executive (cabinet) and administration including all ministries, departments, local government, public schools, public health care bodies, the police, the armed forces, security services, and bodies owned or controlled by the above. | Score 4 points for central government agencies covered: 1 for the head of state, 1 for ministries, 1 for other non-statutory agencies created by the ministries, 1 for state and local government if the government is unitary. If it´s a federalist system, 2 points for the non-statutory agencies. This can be determined by examining the length and thoroughness of the list, if such a schedule exists. Score 1 point for the archives. Add three points and deduct 1 for each exempted central agency (such as the armed forces, police, etc). | 8 | YES | 8 | Article 1. This Law establishes general norms on proceedings that shall be followed by the Federal Government, the States, the Federal District and Municipalities, as established in Article 5, XXXIII, Article 37, II-Paragraph 3, and Article 216, Paragraph 2 of the Constitution. Single Paragraph. The following are subordinated to the regime of this Law: I – public bodies that form the direct administration of the Executive Branch; Legislative Branch, including the Audit Offices; the Judiciary and the Public Prosecutor's Office. | 1(1) seems to cover the entire executive, with no exceptions. |
2. Scope |
8 | The right of access applies to the legislature, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all legislative branch at all levels of government | 4 | YES | 4 | Article 1. This Law establishes general norms on proceedings that shall be followed by the Federal Government, the States, the Federal District and Municipalities, as established in Article 5, XXXIII, Article 37, II-Paragraph 3, and Article 216, Paragraph 2 of the Constitution. Single Paragraph. The following are subordinated to the regime of this Law: I – public bodies that form the direct administration of the Executive Branch; Legislative Branch, including the Audit Offices; the Judiciary and the Public Prosecutor's Office. | |
2. Scope |
9 | The right of access applies to the judicial branch, including both administrative and other information, with no bodies excluded. | Score 1 point if the law only applies to administrative documents, 2-3 points if some bodies excluded, 4 points if all judicial branch at all levels of government | 4 | YES | 4 | Article 1. This Law establishes general norms on proceedings that shall be followed by the Federal Government, the States, the Federal District and Municipalities, as established in Article 5, XXXIII, Article 37, II-Paragraph 3, and Article 216, Paragraph 2 of the Constitution. Single Paragraph. The following are subordinated to the regime of this Law: I – public bodies that form the direct administration of the Executive Branch; Legislative Branch, including the Audit Offices; the Judiciary and the Public Prosecutor's Office. | |
2. Scope |
10 | The right of access applies to State-owned enterprises (commercial entities that are owned or controlled by the State). | Score 1 point if some, 2 points if all | 2 | YES | 2 | Article 1. This Law establishes general norms on proceedings that shall be followed by the Federal Government, the States, the Federal District and Municipalities, as established in Article 5, XXXIII, Article 37, II-Paragraph 3, and Article 216, Paragraph 2 of the Constitution. Single Paragraph. The following are subordinated to the regime of this Law: I – public bodies that form the direct administration of the Executive Branch; Legislative Branch, including the Audit Offices; the Judiciary and the Public Prosecutor's Office. II – autonomous institutions connected to the State, public foundations, public companies, mixed corporations and other entities controlled directly or indirectly by the Federal Government, the States, the Federal District and Municipalities. | |
2. Scope |
11 | The right of access applies to other public authorities, including constitutional, statutory and oversight bodies (such as an election commission or information commission/er). | Score 1 point if some bodies, 2 points if all | 2 | YES | 2 | Article 1. This Law establishes general norms on proceedings that shall be followed by the Federal Government, the States, the Federal District and Municipalities, as established in Article 5, XXXIII, Article 37, II-Paragraph 3, and Article 216, Paragraph 2 of the Constitution. Single Paragraph. The following are subordinated to the regime of this Law: I – public bodies that form the direct administration of the Executive Branch; Legislative Branch, including the Audit Offices; the Judiciary and the Public Prosecutor's Office. II – autonomous institutions connected to the State, public foundations, public companies, mixed corporations and other entities controlled directly or indirectly by the Federal Government, the States, the Federal District and Municipalities. | |
2. Scope |
12 | The right of access applies to a) private bodies that perform a public function and b) private bodies that receive significant public funding. | 1 point for public functions, 1 point for public funding | 2 | Partially | 1 | Article 2. The provisions of this Law are applicable, whenever possible, to non-profit private entities which receive, in order to perform actions of public interest, public funds directly from the budget or through social subventions, management contract, partnership term, agreements, deals, adjustments, or other instruments of the same kind. | Art 2 applies it to private entities that receive public funds. |
3. Requesting Procedures |
13 | Requesters are not required to provide reasons for their requests. | Y/N answer 0 or 2 points | 2 | NO | 2 | Article 10. Paragraph 3. Any requirements related to the reasons determining the request of non-classified information are forbidden. | |
3. Requesting Procedures |
14 | Requesters are only required to provide the details necessary for identifying and delivering the information (i.e. some form of address for delivery). | Score Max 2 points and deduct if requesters are required to give any of the following: ID number, telephone number, residential address, etc. | 2 | Partially | 1 | Article 12. The access to information request shall include: II – valid ID number | Reg 12(2) - requires an ID number. |
3. Requesting Procedures |
15 | There are clear and relatively simple procedures for making requests. Requests may be submitted by any means of communication, with no requirement to use official forms or to state that the information is being requested under the access to information law. | Max 2 points. Considerations include that there is no requirement to state that the request is under the RTI law, nor to use an official form, nor to identify the document being sought. | 2 | Partially | 1 | Article 10. The request for access, which may be performed by any person, shall be submitted by any legitimate means to bodies and entities referred to under Article 1 of this Law, and shall include the applicant's identification and specification of the requested information. Article 10. The SIC shall be set up in an identified physical structure, of easy access and open to the public. Paragraph 2. In case the decentralized unit does not hold the requested information, the request shall be forwarded to the SIC of its respective central public body or entity, which shall then provide the applicant with a file number and its filing date, from which the time frame for response shall be counted. Article 11. Any individual or legal entity is entitled to formulate an access to information request. Paragraph 4. In the situation provided for in Paragraph 3, the applicant shall be informed about the file number of his request as well as its filing date at the SIC, term from which the time frame for response shall be counted. | Art 10 "Any legitimate means": is a bit vague, but requirement in 10 Para 2 for agencies to facilitate alternative means of requesting, including internet, reinforces the need for flexibility. Regulations further clarify flexibility in the manner of requesting, but 11(4) requires the use of a specific form. |
3. Requesting Procedures |
16 | Public officials are required to provide assistance to help requesters formulate their requests, or to contact and assist requesters where requests that have been made are vague, unduly broad or otherwise need clarification. | Score 1 point for help in formulation and 1 point for clarification procedures | 2 | Partially | 1 | Article 13. The following access to information requests shall be refused: I – of general scope Article 9. The public bodies and entities shall implement a Citizen Information Service SIC, with the aim of: I – serve and guide the public on matters related to information access; | Article 13 of the Decree states that generic requests will be responded. But 9(1) of the law tasks the Citizen Information service with "serving and guiding the public on matters related to information access;" - worth a point |
3. Requesting Procedures |
17 | Public officials are required to provide assistance to requesters who require it because of special needs, for example because they are illiterate or disabled. | Score Yes=2 point, No=0 | 2 | Partially | 1 | Article 8. In compliance with the directives established by the Ministry of Planning, Budget and Management, the public bodies and entities shall make sure that their respective websites meet, inter alia, the following requirements: VIII – to ensure content accessibility to persons with disabilities. | Article 8, VIII, of the Decree (and not 7(8)) establishes that the websites shall adopt the necessary measures to guarantee accessibility. But it refers to websites only. |
3. Requesting Procedures |
18 | Requesters are provided with a receipt or acknowledgement upon lodging a request within a reasonable timeframe, which should not exceed 5 working days. | Score 1 point for receipt, 1 point for max 5 working days | 2 | YES | 2 | Article 9. Sole Paragraph. The SIC is responsible for: II – filing the access to information request in a specific electronic system and providing the applicant with a file number, which should include the filing date of the said request; | Article 9, Sole Paragraph, II of the Decree. SIC [Citizen Information Service] must register the request for information in a specific electronic system and deliver a protocol number which shall contain the date the request was made. |
3. Requesting Procedures |
19 | Clear and appropriate procedures are in place for situations where the authority to which a request is directed does not have the requested information. This includes an obligation to inform the requester that the information is not held and to refer the requester to another institution or to transfer the request where the public authority knows where the information is held. | Score: 1 point for information not held, 1 for referrals or 2 for transfers | 2 | Partially | 1 | Article 9. Sole Paragraph. The SIC is responsible for: II – filing the access to information request in a specific electronic system and providing the applicant with a file number, which should include the filing date of the said request; | Article 9, Sole Paragraph, II of the Decree. SIC [Citizen Information Service] must register the request for information in a specific electronic system and deliver a protocol number which shall contain the date the request was made. |
3. Requesting Procedures |
20 | Public authorities are required to comply with requesters’ preferences regarding how they access information, subject only to clear and limited overrides (e.g. to protect a record). | Score: 2 points for Yes, only 1 point if some limitations | 2 | Partially | 1 | Article 11. Any individual or legal entity is entitled to formulate an access to information request. Paragraph 1. The request shall be presented in a standard form, available both physically and electronically, in the websites of the public bodies and entities as well as their respective SICs. Paragraph 2. The time frame for response shall be counted from the filing date of the request at the SIC. Paragraph 3. Public bodies and entities are entitled to receive access to information requests by any other legitimate means, such as telephone calls, electronic or postal mail, as long as the requirements set forth in article 12 are met. Paragraph 4. In the situation provided for in Paragraph 3, the applicant shall be informed about the file number of his request as well as its filing date at the SIC, term from which the time frame for response shall be counted. Article 13. When the access to information consists of handling it in a way that may harm its integrity, a copy for consultation, with certified correspondence with the original document, shall be offered. Single paragraph. When it is not possible to obtain copies, the applicant may request a reproduction that does not put the integrity of the original material at risk, to his or her own expenses and under supervision of a public official. | Art 13 implies this, and Law Art 11 and Reg 15 imply a choice of format, as does the requesting form - but there's no explicit duty on authorities to comply. |
3. Requesting Procedures |
21 | Public authorities are required to respond to requests as soon as possible. | Score: No=0, Yes=2 points | 2 | Partially | 1 | 15 Para 1 On the Access to Information Proceedings After the request is received, and should the requested information be available, the access to information shall be granted immediately. In case it is not possible to grant immediate access, the related body or entity shall, within twenty days: send the requested information to the applicant by postal or email address informed | |
3. Requesting Procedures |
22 | There are clear and reasonable maximum timelines (20 working days or less) for responding to requests, regardless of the manner of satisfying the request (including through publication). | Score: 1 point for timeframes of 20 working days (or 1 month, 30 days or 4 weeks). Score 2 points for 10 working days (or 15 days, or two weeks) or less. | 2 | Partially | 1 | Art 15 "the related body or entity shall, within twenty days: send the requested information to the applicant by postal or email address informed" | |
3. Requesting Procedures |
23 | There are clear limits on timeline extensions (20 working days or less), including a requirement that requesters be notified and provided with the reasons for the extension. | - | 2 | YES | 2 | Article 11. The public organ or entity shall authorize or grant immediate access to the available information. Paragraph 2. The time frame referred in Paragraph 1 may be extended for another ten days, by means of express justification, which shall be informed to the applicant. | 11 Para 2 - 10 days with notice and explanation. |
3. Requesting Procedures |
24 | It is free to file requests. | Score: No=0, Yes=2 points | 2 | YES | 2 | Article 12. The service to search and provide information is free of charge, except in the case of document reproduction by the public organ or entity, when only the costs of the services and materials used can be charged. | |
3. Requesting Procedures |
25 | There are clear rules relating to access fees, which are set centrally, rather than being determined by individual public authorities. These include a requirement that fees be limited to the cost of reproducing and sending the information (so that inspection of documents and electronic copies are free) and that a certain initial number of pages (at least 20) are provided for free. | Score 1 point for fees being limited to reproduction and delivery costs and set centrally, 1 point for at least 20 pages free of charge or for fees being optional | 2 | Partially | 1 | Article 12. The service to search and provide information is free of charge, except in the case of document reproduction by the public organ or entity, when only the costs of the services and materials used can be charged. | 12 - fees are optional - but include "services" as well as delivery |
3. Requesting Procedures |
26 | There are fee waivers for impecunious requesters. | - | 2 | YES | 2 | Article 12. The service to search and provide information is free of charge, except in the case of document reproduction by the public organ or entity, when only the costs of the services and materials used can be charged. Single paragraph. Those whose economic situation does not afford the payment of the costs described in the caption of this article without prejudice of their family or own living shall be exempt of such payment, under the terms of Law nr. 7,115, of August 29th 1983. | |
3. Requesting Procedures |
27 | There are no limitations on or charges for reuse of information received from public bodies, except where a third party (which is not a public authority) holds a legally-protected copyright over the information. | Score: No=0, Yes=2 points | 2 | NO | 0 | N/A | Not mentioned |
4. Exceptions & Refusal |
28 | The standards in the RTI Law trump restrictions on information disclosure (secrecy provisions) in other legislation to the extent of any conflict. | Score 4 points for a resounding "yes" and 1/2/3 points if only for some classes of information or for some exceptions. If the state secrets law is not trumped by the RTI law max score is 2 points. | 4 | NO | 0 | N/A | Not mentioned. |
4. Exceptions & Refusal |
29 | The exceptions to the right of access are consistent with international standards. Permissible exceptions are: national security; international relations; public health and safety; the prevention, investigation and prosecution of legal wrongs; privacy; legitimate commercial and other economic interests; management of the economy; fair administration of justice and legal advice privilege; conservation of the environment; and legitimate policy making and other operations of public authorities. | Score 10 points and then deduct 1 point for each exception which either (a) falls outside of this list and/or (b) is more broadly framed | 10 | Partially | 6 | Article 23. Information considered crucial to the security of society or of the State and, therefore, classifiable, are those whose disclosure or non-restricted access may: VI – harm or put at risk scientific or technological research and development projects, as well as systems, properties, facilities or areas of strategic national interest. Article 6. The access to information disciplined in this Decree is not applicable to: I – confidentiality cases provided for in the legislation, encompassing, inter alia, the following areas: tax, banking, stock market operations and services, business, professional, industrial and justice secrecy; Article 25. Information considered crucial to the security of society or of the State and, therefore, classifiable, are those whose disclosure or non-restricted access may: VII – harm or put at risk scientific or technological research and development projects, as well as systems, properties, facilities or areas of strategic national interest, as established in item II of the caption of article 6 | 23 - Harm or put at risk areas of areas of strategic national interest is vague. Reg 6(1) - assumptions of confidentiality under the law - is also overly broad. Reg 25(7) - undermine or cause risk to research projects. The law also has an entire "classification" scheme that seems to place an undefined category of information beyond the reach of the public. |
4. Exceptions & Refusal |
30 | A harm test applies to all exceptions, so that it is only where disclosure poses a risk of actual harm to a protected interest that it may be refused. | Score 4 points and then deduct 1 point for each exception which is not subject to the harm test | 4 | Partially | 3 | Article 23. Paragraph 1. The Office of the Comptroller General may require the related body or entity to provide clarification on the matter in controversy; | Art 23 - I'm deducting a point because the harm test uses the word may, as opposed to only restricting access to info that would be likely to cause harm. |
4. Exceptions & Refusal |
31 | There is a mandatory public interest override so that information must be disclosed where this is in the overall public interest, even if this may harm a protected interest. There are ‘hard’ overrides (which apply absolutely), for example for information about human rights, corruption or crimes against humanity. | Consider whether the override is subject to overarching limitations, whether it applies to only some exceptions, and whether it is mandatory. | 4 | Partially | 2 | Article 19. Paragraph 1. If the information to which access was denied is essential to safeguard human rights, public organs and entities shall forward to the Public Prosecutor's Office those overruled requests with the reasons for denegation. Article 21. The access to information necessary for the judicial or administrative guardianship of fundamental rights shall not be denied. Single paragraph. Information or documents about activities involving human rights violation by public agents or ordered by public authorities, shall not have their access restricted. | Art 19 Para 1 provides reclassification for info essential to human rights, and Art 21 forbids classification of info involving human rights violations, but there are too limited to warrant more than 2 points. Reg Art 27 also requires authorities to consider the public interest when classifying information, but this isn't a hard override. |
4. Exceptions & Refusal |
32 | Information must be released as soon as an exception ceases to apply (for example, after a contract tender process decision has been taken). The law contains a clause stating that exceptions to protect public interests do not apply to information which is over 20 years old. | Score 1 point for each | 2 | Partially | 1 | Article 24. The information in custody of public organs and entities, observing its wording and due to its importance to the security of society and of the State, shall be classified as top secret, secret and restricted. Paragraph 1. The maximum time frames of restriction on the access to information, observing the classification in the caption of this article, shall be in force from the date of its production, and are the following: I - top secret: twenty-five years; II - secret: fifteen years; and III - reserved: five years. Paragraph 3. As an alternative to the time frames established in Paragraph 1, the end of the restriction time frame may be determined by the occurrence of a specific event, as long as it happens before the maximum time frame of the classification. Article 29. The classification of information shall be reviewed by the authority responsible for the classification or by an authority hierarchically superior, ex officio or upon initiative, under the terms and time frames established in regulation, in order to declassify the information or reduce the period in which it must be kept under secrecy, in observance of article 24. Paragraph 2. In the reassessment of the matter referred to in the caption of this article, the permanence of the reasons of secrecy and the possibility of harm resulting from the access to or disclosure of information shall be examined. | Art 24 Para 1 and Para 3 establish this, along with 29(2). However, "ultra-secret information" is classified for 25 years. |
4. Exceptions & Refusal |
33 | Clear and appropriate procedures are in place for consulting with third parties who provided information which is the subject of a request on a confidential basis. Public authorities shall take into account any objections by third parties when considering requests for information, but third parties do not have veto power over the release of information. | Score: 1 point for consultation, 1 further point if original time frames must be respected and the law allows for expedited appeals. | 2 | NO | 0 | N/A | Section V touches on this, but doesn't provide a proper mechanism for consultation. Hopefully this will be addressed in the regs. |
4. Exceptions & Refusal |
34 | There is a severability clause so that where only part of a record is covered by an exception the remainder must be disclosed. | Score 1 point if yes but sometimes can be refused (eg: if deletions render meaningless the document) and 2 points if partial access must always be granted | 2 | YES | 2 | Article 7. Paragraph 2. When full access to information is not authorized because such information is partially classified, the access to the non-confidential part is granted by certificate, extract or copy, with the concealment of the portion under secrecy. | |
4. Exceptions & Refusal |
35 | When refusing to provide access to information, public authorities must a) state the exact legal grounds and reason(s) for the refusal and b) inform the applicant of the relevant appeals procedures. | Score Y/N: 1 point for a and 1 point for b | 2 | YES | 2 | Article 11. paragraph 1. II - point out the de facto or de jure reasons for totally or partially denying the intended access, Paragraph 4. When access is not authorized because the information is totally or partially classified, the applicant shall be informed of the possibilities of appeal, time frames and conditions for interposal, and shall also be referred to the competent authority for its examination. | |
5. Appeals |
36 | The law offers an internal appeal which is simple, free of charge and completed within clear timelines (20 working days or less). | Score 2 points if the internal appeal fulfills these criteria, 1 point if an appeal is offered that does not fulfill this criteria, 0 for no internal appeals. | 2 | YES | 2 | Article 15. After the request is received, and should the requested information be available, the access to information shall be granted immediately. Paragraph 1. In case it is not possible to grant immediate access, the related body or entity shall, within twenty days: I – send the requested information to the applicant's postal or email address informed; II – inform the applicant of the date, location and means to retrieve the requested information, extract the said information or obtain a certificate related to the requested information; III – inform the applicant that it neither holds the requested information nor is aware of its existence; IV – indicate, should that be possible, the body or entity responsible for the requested information or in possession of same; or V – indicate the grounds for either fully or partially denying access to the requested information. Paragraph 2. In situations where the access to information request requires the handling of a large volume of documents or in case the moving of the document may compromise its regular processing, the measure set forth in item II of Paragraph 1 shall be adopted. Paragraph 3. Should the integrity of the requested information or document be subject to any harm because of their handling, the related body or entity shall indicate the date, location and means of consultation to be performed by the applicant, or offer him a certified copy. Paragraph 4. Should it not be possible to obtain the copy referred to in Paragraph 3, the applicant may request, at his/her expenses and under the supervision of a public servant, a document reproduction that does not put the integrity of the original material at risk. Article 16. The time frame for response to the request may be extended for ten days upon justification to be sent to the applicant prior to the expiration of the initial term of twenty days. | 15 and 16 - there is an internal appeal with clear timelines, which is free of charge. |
5. Appeals |
37 | Requesters have the right to lodge an (external) appeal with an independent administrative oversight body (e.g. an information commission or ombudsman). | 1 for partial, 2 for yes | 2 | YES | 2 | Article 16. When the applicant has the access to information denied by organs or entities of the Federal Executive Branch, the applicant may appeal to the Office of the Comptroller General, which shall decide within five days (...). Article 35. The Commission for Reassessment of Information, consisting of State Ministers and representatives from the Legislative and Judiciary branches appointed by their respective presidents, shall be in frequent contact with the Chief of Staff of the Presidency of the Republic and under the jurisdiction of the federal government. (...) | 16 and 35 - the CGU and the Reevaluation Commission |
5. Appeals |
38 | The member(s) of the oversight body are appointed in a manner that is protected against political interference and have security of tenure so that they are protected against arbitrary dismissal (procedurally/substantively) once appointed. | Score: 1 point for appointment procedure, 1 point for security of tenure | 2 | NO | 0 | Article 35. The Commission for Reassessment of Information, consisting of State Ministers and representatives from the Legislative and Judiciary branches appointed by their respective presidents, shall be in frequent contact with the Chief of Staff of the Presidency of the Republic and under the jurisdiction of the federal government.(...) | No - Art 35 suggests the bodies are not independent, and the specifics are to be established by regulation (none are yet in force). |
5. Appeals |
39 | The oversight body reports to and has its budget approved by the parliament, or other effective mechanisms are in place to protect its financial independence. | Score 1 point for reports to parliament, 1 point for budget approved by parliament | 2 | Partially | 1 | N/A | Budget is approved by Congress - but the body is linked with the presidency. |
5. Appeals |
40 | There are prohibitions on individuals with strong political connections from being appointed to this body and requirements of professional expertise. | Score 1 point for not politically connected, 1 point for professional expertise | 2 | NO | 0 | Article 35. Paragraph 4. Regulation shall lay out the composition, organization and operation of the Commission for Reassessment of Information, observing the term of two years to their members and other provisions of this Law. | 35 Para 4 - Specifics of this are to be established by regulation. |
5. Appeals |
41 | The independent oversight body has the necessary mandate and power to perform its functions, including to review classified documents and inspect the premises of public bodies. | Score 1 point for reviewing classified documents, 1 point for inspection powers | 2 | Partially | 1 | Article 35 Paragraph 1. The Commission for Reassessment of Information is hereby instituted and shall decide, at the level of the federal public administration, on the handling and classification of secretive information and will be entitled to: (...) | 35 Para 1 allows them to review classified documents. |
5. Appeals |
42 | The decisions of the independent oversight body are binding. | Score N=0, Y=2 points | 2 | YES | 2 | Article 35. "The classification of information shall be reviewed by the authority responsible for the classification or by an hierarchically superior authority, ex officio or upon initiative, in order to declassify the information or reduce the period in which it must be kept under secrecy." | Implied by Art 35 - and affirmed by the Comptroller General |
5. Appeals |
43 | In deciding an appeal, the independent oversight body has the power to order appropriate remedies for the requester, including the declassification of information. | 1 for partial, 2 for fully | 2 | YES | 2 | Article 37 Paragraph 4. In case the appeal provided for in the caption of this article and in the paragraphs 1 to 3 is denied, the petitioner is entitled to file an appeal to the Mixed Committee for the Reassessment of Information within ten days to be counted from the date he/she was notified of the said decision. | The Reevaluation Commission has the power to declassify information (Article 37, Fourth Paragraph of the Decree). |
5. Appeals |
44 | Requesters have the right to lodge a judicial appeal. | 1 for partially, 2 for fully. | 2 | YES | 2 | N/A | Requesters have the right to lodge a judicial appeal, this is a constitutional right of any Brazilian |
5. Appeals |
45 | Appeals to the oversight body (where applicable, or to the judiciary if no such body exists) are free of charge and do not require legal assistance. | 1 for free, 1 for no lawyer required. | 2 | YES | 2 | N/A | Appeals to the oversight body are free of charge and administrative appeals generally do not require a lawyer, according to our reviewers. |
5. Appeals |
46 | The grounds for an external appeal are broad (including not only refusals to provide information but also refusals to provide information in the form requested, administrative silence and other breach of timelines, charging excessive fees, etc.). | Score 1 point for appealing refusals, additional points for appealing other violations. | 4 | YES | 4 | Article 16. When the applicant has the access to information denied by organs or entities of the Federal Executive Branch, the applicant may appeal to the Office of the Comptroller General, which shall decide within five days if: IV – time frames or other procedures established by this Law are not complied with. | 16(IV) |
5. Appeals |
47 | Clear procedures, including timelines, are in place for dealing with external appeals. | Score 1 point for clear procedures, 1 point for timelines. | 2 | YES | 2 | Article 15. After the request is received, and should the requested information be available, the access to information shall be granted immediately. Paragraph 1. In case it is not possible to grant immediate access, the related body or entity shall, within twenty days: I – send the requested information to the applicant by postal or email address informed; II – inform the applicant of the date, location and means to retrieve the requested information, extract the said information or obtain a certificate related to the requested information; III – inform the applicant that it neither holds the requested information nor is aware of its existence; IV – indicate, should that be possible, the body or entity responsible for the requested information or in possession of same; or V – indicate the grounds for either fully or partially denying access to the requested information. Paragraph 2. In situations where the access to information request requires the handling of a large volume of documents or in case the moving of the document may compromise its regular processing, the measure set forth in item II of Paragraph 1 shall be adopted. Paragraph 3. Should the integrity of the requested information or document be subject to any harm because of their handling, the related body or entity shall indicate the date, location and means of consultation to be performed by the applicant, or offer him a certified copy. Paragraph 4. Should it not be possible to obtain the copy referred to in Paragraph 3, the applicant may request, at his/her expenses and under the supervision of a public servant, a document reproduction that does not put the integrity of the original material at risk. Article 16. The time frame for response to the request may be extended for ten days upon justification to be sent to the applicant prior to the expiration of the initial term of twenty days. Article 17. In case the information is available to the public in a printed, electronic or any other means of universal access, the body or entity shall guide the applicant on the location and ways to access, retrieve or copy such information. Sole Paragraph. The procedure detailed in the caption of this article exempts the public body or entity from the obligation to directly provide the information, unless the applicant otherwise declares not having the means to access, retrieve or copy such information on his/her own. Article 35. The classification of information shall be reviewed by the authority responsible for the classification or by an hierarchically superior authority, ex officio or upon initiative, in order to declassify the information or reduce the period in which it must be kept under secrecy. | In Brazil, there are two "oversight bodies" in Federal Executive Branch: The Office of Comptroller General (CGU) and the Mixed Commission for Information Reassessment. In both cases the Law brings clear procedures (including timelines) for dealing with external appeals. See articles 15, 16 and 17: "Article 15. After being denied the right to access either the requested information or the reasons that justified such negative decision, the petitioner shall file an appeal within 10 (ten) days after being notified of that decision. Sole Paragraph. The appeal shall be lodged with the authority hierarchically superior to that which rendered the contested decision, the latter being entitled to act within 5 (five days). Article 16. Should federal executive bodies or entities deny the petitioner the right to access the requested information, he/she may lodge an appeal with the Office of the Comptroller General, which will have 5 (five) days to decide upon the following situations:I “denied access to unclassified information; II "negative decision on access to totally or partially classified information which does not indicate either the responsible or the hierarchically superior authority, to whom the petitioner could forward requests for either access or declassification; III - the procedures to classify sensitive information, as established by this Law, have not been observed; IV “non-observation of the terms and overall procedures established by this Law. Paragraph 1. The appeal provisioned in this article shall be lodged with the Office of the Comptroller General only after having been appreciated by at least one authority hierarchically superior to that which rendered the contested decision, and shall be judged within 5 (five) days.Paragraph 2. Once the reasons that motivated the appeal are proved right, the Office of the Comptroller General will require the involved body or entity to take the necessary measures to comply with the provisions of this Law.Paragraph 3. The petitioner may lodge an appeal with the Mixed Commission for Information Reassessment, referred to in Article 35, should the Office of the Comptroller General deny him/her access to requested information. Article 17. Without prejudice to the competencies of the Mixed Commission for Information Reassessment, established in Article 35, and in compliance with the provisions of Article 16, the petitioner may file an appeal to the corresponding State Minister, should his/her information declassification request be denied by a federal body within the Public Administration. Paragraph 1. The appeal provisioned in this article shall only be filed to the above referred authorities after having been appreciated by at least one authority hierarchically superior to that which rendered the contested decision and, regarding the Armed Forces, to the corresponding Major Command.Paragraph 2. If the appeal to declassify secret or top secret information established in the caption of this article is overruled, the petitioner may appeal to the Mixed Commission for Information Reassessment established in Article 35." |
5. Appeals |
48 | In the appeal process, the government bears the burden of demonstrating that it did not operate in breach of the rules. | Score Y/N and award 2 points for yes. | 2 | NO | 0 | N/A | Not spelled out. |
5. Appeals |
49 | The external appellate body has the power to impose appropriate structural measures on the public authority (e.g. to conduct more training or to engage in better records management) | 1 for partial, 2 for fully. | 2 | YES | 2 | Article 16. Paragraph 2. After upholding the appeal, the Office of the Comptroller General shall require the organ or entity to take the necessary steps to comply with this Law. Article 68. In observance of the attributions of other bodies and entities and the specific provisions set forth in this Decree, the Office of the Comptroller General is entitled to: (...) III – promote training activities for the public agents and, whenever possible, to build capacity of not-for- profit private entities with regard to the development of practices related to the transparency within the government;(...) | Law Art 16 Para 2 and Reg 68(III) seems to grant this power. |
6. Sanctions & Protections |
50 | Sanctions may be imposed on those who wilfully act to undermine the right to information, including through the unauthorised destruction of information. | Score 1 point for sanctions for underming right, 1 point for destruction of documents | 2 | YES | 2 | Article 7. Regardless of external requests, public bodies and entities shall promote the disclosure of the information they either produce or keep, be it of collective or general interest, in their respective websites, in compliance with the provisions established in article 7 and article 8 of Law No. 12,527, of 2011.(...) Paragraph 4. The above information may be disclosed through a webpage redirecting tool, in case the said information is available at other government websites. Article 32. The authority or other public agent who classifies the information under the top - secret or secret level shall submit a copy of the TCI to the Mixed Committee for the Reassessment of Information within thirty days, to be counted from the issuance of the decision related to the classification or the ratification. | Art 7 Para 4 and Art 32. Also see Reg Art 65 and 66. |
6. Sanctions & Protections |
51 | There is a system for redressing the problem of public authorities which systematically fail to disclose information or underperform (either through imposing sanctions on them or requiring remedial actions of them). | Score 1 point for either remedial action or sanctions, 2 points for both | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
52 | The independent oversight body and its staff are granted legal immunity for acts undertaken in good faith in the exercise or performance of any power, duty or function under the RTI Law. Others are granted similar immunity for the good faith release of information pursuant to the RTI Law. | Score 1 for oversight body, 1 for immunity for others | 2 | NO | 0 | N/A | Not mentioned. |
6. Sanctions & Protections |
53 | There are legal protections against imposing sanctions on those who, in good faith, release information which discloses wrongdoing (i.e. whistleblowers). | Score 2 for strong protections, 1 for moderate protections | 2 | Partially | 1 | Article 44. Chapter IV of Title IV of the Law nr. 8,112, of December 11th 1990, shall be in effect in addition to the following article: "Article 126-A. No public server will be held liable on the civil, criminal or administrative level for letting his or her superior authority or, when there is a suspicion of the involvement of the latter, another competent authority know, for the purpose of investigation, of the information concerning the practice of crimes or improbity of which he or she is aware of, even if such action is a result of the exercise of his or her position, job or public function." | Art 44 touches on this - but only for reports to a superior not for disclosures to the public. |
7. Promotional Measures |
54 | Public authorities are required to appoint officials (information officers) or units with dedicated responsibilities for ensuring that they comply with their information disclosure obligations. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 9. The access to public information will also be ensured by means of: I - creation of a citizen's information service, within public organs and entities, in a location which meets the appropriate conditions to: a) serve and orient the public on the access to information; b) provide information on document proceedings in its respective units; c) file documents and requests concerning the access to information; and II - conduct public consultations or hearings, incentives to public participation or other ways of disclosure. Article 67. The highest authority of each body or entity shall appoint an authority directly subordinated to him/her to perform the following attributions: I – to efficiently ensure the compliance of the regulations related to the access to information, according to the purposes of Law No. 12,527, of 2011. II – to assess and monitor the implementation of the provisions set forth in this Decree and submit periodic reports on their compliance to the highest authority of each body or entity, forwarding the said reports to the Office of the Comptroller General; III – to recommend measures for improvement of the regulations and proceedings necessary for the implementation of the provisions set forth in this Decree; IV – to guide the respective units on the compliance with this Decree; and V – to decide on complaint filed against omission of the competent authority, pursuant to the provisions established in article 22. | 9(1) and Reg 67. |
7. Promotional Measures |
55 | A central body, such as an information commission(er) or government department, is given overall responsibility for promoting the right to information. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 41. The Federal Executive Branch shall designate an organ from the Public Administration to be responsible for: I – promoting a national campaign to foster a cultural change towards transparency within the Public Administration and to raise awareness on the fundamental right of access to information. (...) | 41(1) requires that this be done. |
7. Promotional Measures |
56 | Public awareness-raising efforts (e.g. producing a guide for the public or introducing RTI awareness into schools) are required to be undertaken by law. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 9. The access to public information will also be ensured by means of:(...) II - conduct public consultations or hearings, incentives to public participation or other ways of disclosure. | 9(2) touches on this, as does 41(1). |
7. Promotional Measures |
57 | A system is in place whereby minimum standards regarding the management of records are set and applied. | Score Y/N, Y=2 points | 2 | NO | 0 | N/A | Not mentioned. |
7. Promotional Measures |
58 | Public authorities are required to create and update lists or registers of the documents in their possession, and to make these public. | Score Y/N, Y=2 points | 2 | Partially | 1 | Article 45. The highest authority of each body or entity shall annually publish, until June 1st, in a website available on the internet, the following: I – a list of the information which has been declassified in the last twelve months; II – a list of information classified in each level of secrecy, which shall comprise: a)the indexing code of the document; b)the category of the information; c)the indication of the legal provision that supports the classification; and d)the date the document was produced, the classification date and the time frame of the classification; III – a statistic report containing the number of information requests that were received, accepted and denied; and IV – statistic aggregated information on the applicants. Sole Paragraph. Public bodies and entities shall keep copies of the information provided for in the caption of this article for public consultation in their respective headquarters. | According to Article 45 of the Decree, public authorities are required to create and update lists or registers of the information classified and declassified in the previous 12 months, and to make these public. |
7. Promotional Measures |
59 | Training programs for officials are required to be put in place. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 41. The Federal Executive Branch shall designate an organ from the Public Administration to be responsible for: II – developing training activities for public officials about transparency in the Public Administration | |
7. Promotional Measures |
60 | Public authorities are required to report annually on the actions they have taken to implement their disclosure obligations. This includes statistics on requests received and how they were dealt with. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 40. Within sixty days, from the date this Law is put into effect, the highest leader of each organ or entity of the federal public administration shall designate an authority directly subordinated to it, within the respective organ or entity, to perform the following attributions:(...) II - monitor the implementation of the terms of this Law and submit periodic reports on its compliance;(...) Article 45. The States, the Federal District and Municipalities shall, in their own legislation, with obedience to the general dispositions of this Law, determine specific rules, especially regarding Article 9 and of section II of Chapter III. | |
7. Promotional Measures |
61 | A central body, such as an information commission(er) or government department, has an obligation to present a consolidated report to the legislature on implementation of the law. | Score Y/N, Y=2 points | 2 | YES | 2 | Article 41. The Federal Executive Branch shall designate an organ from the Public Administration to be responsible for: IV – submitting to the National Congress an annual report with information related to the implementation of this Law. |
