Brazil’s Information Access Law and the problem of ‘un-anonymous’ request for public information

It is critical to build mechanisms that allow and promote the exercise of right to information access in a way that is safe to Information Access Law users. In this blog, Ariel Kogan (managing director of Open Knowledge Brasil) and Fabiano Angélico (transparency and integrity adviser and author of the book “Lei de Acesso à Informação: Reforço ao Controle Democrático” (Information Access Act: Reinforcement for the Democratic Control) ) talk about the importance of anonymous requests of information to preserve the identity, privacy and safety of citizens.

According to the Brazilian Information Access Law, which has been effective for five years this May, the information requesting party – either an individual or an entity – needs to inform the government authority of its name and a document number. This obligation has shown to be problematic, especially for journalists and activists who search for information that might uncover cases of corruption or misappropriation of public resources. 

Brazil submitted its third action plan to Open Government Partnership in December of 2016. One of the country’s commitments is to “create new mechanisms or improve existing mechanisms to evaluate and monitor the passive transparency of Law 12.527 of 2011 in the Federal Government”. Another commitment is to “safeguard the requesting party’s identity under excusable cases through adjustments in request procedures and channels”. 

Image: Digital Rights LAC (CC-BY-SA 2.0)

Brazil has however failed to adhere to some of the commitments of the Open Government Partnership. The following paragraphs document the treatment meted out to some individuals who have dared to use the Information Access Act to request for somewhat sensitive data.

Several cases of subtle or aggressive threats, employee termination and other kinds of reprisals have been reported. A member of a non-governmental organisation (NGO), Renato used a state government’s system to request information on their military police. A military police officer responded to his request with a threatening tone. The officer even mentioned the names of the fundraisers of the NGO of which Renato is a member. Joana, a federal government public employee, requested a ministry information about a quite controversial contract. Shortly afterwards and without previous notice, she was dismissed from her leadership position while she was on vacation.

João, a state company public employee, suspected that the company’s top executives were misusing public funds. He asked his brother to request information access. He was then discharged with cause for disobedience. Feeling threatened, Maria was afraid to request information about the budget execution of the town where she lived. Searching the Internet, she found another person who lived in a very distant town who was in a similar situation. They then decided to exchange favours, and one requested information on behalf of the other. It was safer for both of them. Manoel, a journalist, requested information from a city hall via the Information Access Act. However, he didn’t inform that he was a journalist. In a few days, the municipal secretary of communications called him and, is a less than cordial tone, said that Manoel didn’t need to use the Information Access Law to collect data. 

All names mentioned above are fictitious.  The reported cases, however, are unfortunately real. In addition to discharges and threatens, the requesting party identification leads the government to respond to information requests according to the requesting party “status”.

Research in several countries, including Brazil, shows that the response to the same information request is more complete when the requesting party is identified as an investigator from a renowned university, for example than when the individual is identified just by his/her name.

These cases demonstrate that the identification of the requesting party may have not democratic and republican consequences. In all cases, an illegal and disproportionate force was used to silence requests for information.

It is, therefore, critical to develop mechanisms that allow and promote the exercise of the right to safely and, if necessary, anonymously access information. This would be enriching for all and would allow social control in many critical situations.

The Information Access Act may be an excellent tool to identify and monitor suspicions of misuse of public resources, contract frauds, or other improprieties in public agencies. For this law to be effective, however, it is essential that the requesting party is safeguarded. We believe this will be the next great challenge to the Information Access Act implementation process.

 

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