[Today’s post is a translation of an op-ed that appeared in the Folha de S. Paulo]
Organizational secrecy constitutes the first refuge of corruption, incompetence, and inefficiency. In this sense, perhaps the single most important advantage that democracies have over other forms of government is their ability to limit secrecy and promote the free flow of information. Transparency is the oxygen of democracy, and exactly ten years ago on May 16th 2012, Brazil put into effect a keystone institution to breathe fresh air into the Brazilian state– an access to information law (LAI). The LAI promised transformation (“Muda Brasil!”) and transformation threatens the status quo. Yet despite significant resistance, the LAI has taken root. Its roots still shallow and its structure under attack, however, the time is now to reaffirm, defend, and advance transparency and access to information in Brazil.
Victories born of over 1.1 million federal access to information requests testify to the LAI’s relative success. Brazilians are requesting more federal information every year: from 2013 to 2021, the average annual growth rate for requests stood at 35%. Businesses are now the largest group of self-reported requesters (41%) – as is the case in most countries with mature access to information regimes. Next come academics (28%), civil servants (27%), the news media (3%), and civil society organizations (1%). Strikingly, government officials make up nearly twice the number of reported requests in Brazil (27%) as compared to Mexico (14%), suggesting that the LAI may help the government with monitoring and negotiating its own informational complexities. Large, fragmented multiparty coalitions and cabinets, such as those in Brazil, generate deleterious information asymmetries. Unsurprisingly, transparency has become a critical policy tool in Brazil; from the Fiscal Responsibility Law, to the LAI, multiple open data initiatives, and even a measure that obligates government agencies to share databases with each other (decree 8789). While transparency always matters for good governance, it is especially important in a government as complicated as Brazil’s.
Given this importance, attacks on the LAI should be everyone’s concern. Never before has the LAI suffered assaults such as those undertaken during the administration of President Jair Bolsonaro. These include efforts to staunch the flow of information by increasing the number of officials permitted to classify documents (law 9.690/2019); efforts to kill advisory committees in the federal government (conselhos consultivos) (Decreto 9.759/2019); and numerous blackouts on controversial subjects, including deforestation, police investigations, and pandemic data on deaths and infections. Positively, however, legislative efforts to damage the LAI and other transparency institutions have been neutralized by Congress and the Supreme Court. Congress’ rejection of decree 9690 was, emblematically, Bolsonaro’s first defeat in Congress. Overall, it is impossible to deny that Bolsonaro’s actions demonstrate a profound disrespect for access to information and transparency, establishing a lamentable example for other leaders and institutions across Brazil.
Figure 1. Complete and Partial Responses to Access to Information Requests by Presidential Cabinets and the Federal Administration
Data source: CGU, execution by Jamil Civitarese, conceptualization by Gregory Michener.
Although President Bolsonaro’s cabinet has set new, unprecedented lows in compliance as compared to the administrations of Presidents Michel Temer and Dilma Rousseff (see Figure 1), data show that the federal government as a whole – the 300 or so agencies outside of the president’s cabinet – has remained relatively consistent in terms of compliance. This consistency suggest that transparency and the LAI have become embedded in the routines of Brazil’s public administration. Yet a multitude of obstacles to effective federal transparency remain. The general impression is that the quality of responses to requests is wanting; the new privacy law (LGPD) is being used by officials to deny embarrassing information; and a Working Paper shows that officials routinely deny or stonewall unoffensive, legal requests simply because they do not want to deal with them and know that sanctions are rarely if ever applied.
The situation is even more dire at the local level. By contrast to what occurs in developed countries such as the United States or Canada – local transparency is much weaker in Brazil than it is at the federal level. According to data from the (IBGE), only 45% of Brazil’s municipalities have regulated the LAI. Where the LAI has been regulated, many municipalities – even several states – misreport or lack adequate statistical reporting on the LAI— a clear indication of dysfunctionality. A 2020 evaluation by the FGV’s Public Transparency Program found that 8 states and 7 capital cities provided no reports on LAI statistics. Many states, such as Rio de Janeiro, only provide aggregated data. Perhaps a more fundamental problem is the weakness of local government regulation: among Brazil’s 27 states and 26 state capitals, only 16 and 10, respectively, provide for oversight regulations to ensure the LAI’s implementation and enforcement. Recent research on 20,000 transparency projects from around the world confirms a long-held intuition – oversight, including administrative guidance and enforcement, is a necessary condition for robust transparency regimes. The lack of effective oversight in most states and municipalities is perhaps Brazil’s most pressing transparency deficit, especially because most of life’s needs – policing, education, health – are supposed to be met by local governments. Even at the federal level, the CGU’s resources for supporting the LAI are miniscule compared to most countries (p.1308), including Mexico and Chile.
Given the importance of transparency for strong markets and democracies, it is incumbent upon Brazilians to set a stronger agenda for the LAI and transparency. This also means supporting organizations that promote and defend it, including the independent media, the Office of the Comptroller General (CGU), and civil society organizations such as the Foro de Acesso à Informação and Fiquem Sabendo.
