This chapter takes stock of Brazil’s legal, policy and institutional frameworks for open government and provides recommendations for their consolidation. It starts by discussing existing definitions of the concept open government in Brazil, followed by an overview of key laws, policies, and institutions that contribute to the promotion of openness in the country. The chapter finds that - like those of most OECD Member Countries - Brazil’s enabling environment for open government is very wide, largely due to the country’s long-term commitment to open government reforms. While many of the country’s open government initiatives are mature and compare well with OECD good practices, Brazil could benefit from becoming one of the first countries worldwide to create a dedicated, integrated and coherent open government ecosystem. The creation of such an ecosystem could include the adoption of Brazil’s first holistic Federal Open Government Strategy.
Open Government Review of Brazil
3. The enabling environment for open government in Brazil: From multiplicity to integration
Abstract
Introduction
In most countries, the enabling environment for open government is the result of a combination of different layers of laws, policies and institutions, coupled with very diverse implementation modalities and practices. Traditionally, public policies that aim to foster to the open government principles of transparency, accountability, integrity, and stakeholder participation have most commonly been treated as separate policy agendas, which, by themselves, have often resulted in positive outcomes for citizens. The concept of open government aims to further empower transparency, accountability, integrity, and stakeholder participation agendas by inviting countries to integrate them under the concept of open government. These integrated open government agendas put all policies that aim to foster government-citizen relationships under one common umbrella in order to achieve even more and better outcomes for citizens. For example, integrating the access to public sector information and open government data agendas under a coherent open government approach has shown to produce tangible results in terms of higher quality and accessibility of data and information.
The design and implementation of such an integrated open government approach is an ambitious undertaking which, so far, has been achieved by very few countries. It requires that countries create links between policy communities that have traditionally worked in silos. Ultimately, it requires the development of an administrative culture that is citizens-centred and aligned with the principles of open government. The pursuit of an integrated open government agenda therefore necessitates the creation of a dedicated enabling environment and, ultimately, a fully integrated open government ecosystem.
Box 3.1. Key definitions
Open government policies: Public policies that are linked to the promotion of the open government principles, ranging from citizen / stakeholder participation to open government data and transparency, etc.
Open government agenda: Public policy agenda to foster the open government principles in a country. The open government agenda usually consists of a number of open government policies.
Open government initiative: Actions undertaken by the government, or by a single public institution, to achieve specific objectives in the area of open government, ranging from the drafting of laws to the implementation of specific activities such as online consultations;
Open government strategy: a document that defines the open government agenda of the central government and/or of any of its sub-national levels, as well as that of a single public institution or thematic area, and that includes key open government initiatives, together with short, medium and long-term goals and indicators;
Source: Author’s own elaboration based on OECD (2017[1]).
According to the OECD Framework for Assessing the Openness of Government (OECD, 2020), the inputs for open government reforms consist of laws, policies, and institutions:
The legal and regulatory framework sets the preconditions for governments to put the open government principles into practice. It defines the rules and determines rights and obligations for citizens, stakeholders and the government. Traditionally, the legal framework is composed of laws that contain provisions on different open government policies (e.g. citizen participation, open data, accountability, etc.) as well as references to fundamental democratic rights (e.g. freedom of expression, association and assembly).
The policy framework for open government provides policy guidance to the government for the medium or long term. It sets the roadmap for open government reforms defining the “what” and the “how” (OECD, 2019[2]). The policy framework usually consists of policy documents (e.g. strategies, action plans) that detail initiatives, commitments and projects that aim to foster the open government principles. Evidence suggests that an integrated open government approach can benefit from the adoption of a whole-of-government Open Government Strategy.
The institutional framework for open government consists of all those public institutions that have responsibilities that are related to the co-ordination, promotion, oversight and implementation of different open government policies across government. Evidence suggests that an integrated open government approach can benefit from the creation of a dedicated Open Government Office.
Figure 3.1. Model of an enabling environment for an integrated open government agenda
Source: Author’s own elaboration.
This Chapter is the first of the two dedicated to the governance of open government reforms and should, hence, be read in conjuncture with Chapter 4 on Governance Processes and Mechanisms for an Integrated Open Government Agenda in Brazil. Together, they present a roadmap for Brazil to move towards a fully integrated open government agenda. A joint conclusion for both Chapters is included at the end of Chapter 4.
The present Chapter assesses Brazil against key elements of Provisions 1, 2 and 4 of the OECD Recommendation of the Council on Open Government (Box 3.2). It starts by discussing existing definitions of the concept open government in Brazil, followed by an overview of key laws, policies, and institutions that contribute to the promotion of openness in the country. The Chapter finds that - like those of most OECD Member Countries - Brazil’s enabling environment is very wide, largely due to the country’s long-term commitment to open government reforms. While many of the country’s open government initiative are mature and compare well with OECD good practices, Brazil could benefit from becoming one of the first countries worldwide to create a dedicated, integrated and coherent open government ecosystem, which moves the open government agenda beyond activities related to Brazil’s participation in the Open Government Partnership (OGP). The Chapter acknowledges that the creation of such an ecosystem may require different kinds of policy, legal and institutional changes and therefore proposes an ambitious long-term agenda, which is complemented by short- and medium-term milestones that are proposed in the implementation Chapters of this Review (Chapters 6-8).
Throughout, this Chapter provides policy advice based on Brazil’s responses to the 2020 OECD Survey on Open Government (hereafter “OECD Survey”) and draws on experience from OECD Member and Partner Countries to illustrate good practices in this field.
Box 3.2. Relevant provisions of the OECD Recommendation of the Council on Open Government
Provision 1
“Take measures, in all branches and at all levels of the government, to develop and implement open government strategies and initiatives in collaboration with stakeholders and to foster commitment from politicians, members of parliaments, senior public managers and public officials, to ensure successful implementation and prevent or overcome obstacles related to resistance to change”.
Provision 2
“Ensure the existence and implementation of the necessary open government legal and regulatory framework, including through the provision of supporting documents such as guidelines and manuals, while establishing adequate oversight mechanisms to ensure compliance”.
Provision 4
“Coordinate, through the necessary institutional mechanisms, open government strategies and initiatives - horizontally and vertically - across all levels of government to ensure that they are aligned with and contribute to all relevant socio-economic objectives”.
Source: OECD (2017[1]), Recommendation of the Council on Open Government, OECD, Paris, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0438 (accessed 30 November 2018).
Adopting a single definition of open government as an enabler of an integrated open government approach
Open government is a wide concept with multiple definitions (see Chapter 2 and Chapter 3). Evidence gathered by the OECD shows that the way a country defines the concept of open government can have an important impact on the design and implementation of its open government agenda. In any country, delineating an official concept of open government and defining what it entails is therefore a pivotal first step to the development of a holistic and integrated open government approach (OECD, 2019[2]). According to the OECD (2016[3]), a country’s definition of open government should be co-created with a wide range of stakeholders to ensure that it is recognised and supported by the whole of government as well as non-public actors. Box 3.3 provides an overview of the potential benefits of a solid definition of open government.
Box 3.3. The benefits of a solid definition of open government
The OECD Report on Open Government: The Global Context and the Way Forward (OECD, 2016) explains why a good definition of open government is crucial:
It informs the public about the essential elements of open government, and the extent and limitations of the term.
It facilitates common understanding and usage of the term, and aligns all stakeholders and policy makers towards the same goals.
It facilitates robust analysis of the impacts of open government strategies and initiatives across different institutions and levels of government.
It supports international comparisons of open government strategies and initiatives.
Source: OECD (2016[3]), Open Government: The Global Context and the Way Forward, OECD Publishing, Paris, https://doi.org/10.1787/9789264268104-en.
Brazil currently has multiple definitions of open government in place
According to preliminary results of the 2020 OECD Survey on Open Government (OECD, 2021[4]), 30 (81.1%) out of the responding OECD Members and Adherents to the OG Recommendation have adopted either an official or a working definition of open government (Figure 3.2). Most of these definitions are inspired by the OECD’s definition1 (61.3%) or the OGP’s definition (67.7%) and they most commonly link open government with the concepts of transparency, accountability, and citizen participation (OECD, forthcoming)2.
Figure 3.2. Availability of definition(s) of open government in OECD countries and adherents to the OECD Recommendation of the Council on Open Government
Note: N=37. Data for Denmark is preliminary.
Source: OECD (2021[4]), 2020 OECD Survey on Open Government
The Brazilian government currently uses different definitions of open government:
Decree 10160 from 2019 defines open government as “a policy that aims to enhance transparency and access to information, strengthen integrity and improve public service delivery”.
The CGU’s official website highlights that “open government refers to a new vision of the public administration that promotes projects and actions based on the following principles: transparency (…); accountability (…); citizen participation (…); and technology and innovation (…)” (CGU, 2020[5]).
Interviews conducted for this Open Government Review revealed that many public stakeholders also commonly use the OECD’s definition (see Chapter 3).
In their answers to the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions (OECD, 2021[6]), 70% of the responding institutions indicated that they used one of these definitions to guide their institutional open government agendas. However, interviews conducted during the OECD fact-finding missions revealed that conceptual understanding of open government are diverging - and sometimes even contradictory - across the Brazilian public sector and civil society. Most interviewed stakeholders associated open government mostly with the release of open government data and / or with the concept of transparency. Policies and practices relating to citizen and stakeholder participation, integrity, and accountability were less commonly seen as an integral part of the definition.
Brazil could consider adopting a single definition of open government
The existence of different definitions can constitute an obstacle to the harmonious implementation of open government reforms across the Brazilian public sector. In order to enable an integrated open government approach and create a common understanding of the potentials (and limitations) of open government reforms, Brazil could consider (co-)creating (i.e. by designing a new definition) or adopting (i.e. by selecting one of the existing definitions) a single definition of open government that is accepted by the whole public sector and external stakeholders alike. In case Brazil decides to co-create a new definition of open government, the country could consider including civic space and democracy-considerations in it (or in its explanatory note) to explain how the concepts are linked and contribute to each other. The process to design the next OGP action plan, or the process to design the recommended Federal Open Government Strategy (see below), could present an opportunity to launch a discussion on a single definition.
No matter if Brazil ultimately decides to adopt an existing definition or co-create a new definition of open government, once adopted, the single definition should be communicated widely to ensure that all public officials and non-public stakeholders are aware of it. In an ideal case, the President, the Cabinet or a Minister would endorse the single definition (e.g. through decree) and it would be used in speeches and official documents. As the institution leading Brazil’s open government agenda, the Office of the Comptroller General of the Union (CGU) could consider organising a dedicated communications campaign to promote the single definition.
Moving towards a single definition does not mean that all institutions necessarily have to use exactly the same definition (OECD, 2019[2]). Instead, it implies that all public and non-public stakeholders share a common understanding of what open government entails (and does not entail), and work towards a shared vision of openness.
Streamlining the legal and regulatory framework for open government in Brazil
A solid legal and regulatory framework for open government is an essential pre-condition for successful reforms (OECD, 2019[2]). Evidence collected by the OECD suggests that the underlying legal and regulatory basis for open government in OECD Member and Partner Countries is usually very large (OECD, forthcoming[7]). In most countries, it includes, among others, provisions relating to the principles of open government in countries’ constitutions, as well as laws and regulations on stakeholder participation, anti-corruption, the protection of personal data and national archives, digital government, open data, whistle-blower protection, etc. (Box 3.4).
This section benchmarks Brazil against Provision 2 of the OG Recommendation3, introducing the main laws, regulations and international treaties underpinning open government reforms in the country. A detailed analysis of specific laws and regulations and their effective implementation can be found in the implementation Chapters of this Review (see for example a discussion on the access to information law in Chapter 7 on Transparency).
Box 3.4. The legal and regulatory framework for open government reforms in OECD member and partner countries
Laws and regulations on access to public information (ATI) form the backbone of an open government. All OECD countries now have these kinds of laws in place, foreseeing – in most cases – both proactive and reactive disclosure of information and data (OECD, forthcoming). ATI laws are often coupled with laws on the protection of personal data and provisions included in national archives laws / public record laws. In some countries, access to information laws also include specific rights and obligations regarding open government data.
In some countries, laws on citizen participation complement constitutional rights and obligations (e.g. Colombia’s Statutory Law on Citizen Participation from 2015). In addition, most countries have put in place legal requirements to involve stakeholders in law-making and in regulatory policy and in specific policy processes (e.g. environment, infrastructure, land-use). Moreover, forms of democratic participation, i.e. political rights (e.g. elections, petitions, referenda, etc.), are usually regulated by law (or in the Constitution) (OECD, forthcoming). Laws may also regulate specific participatory practices (e.g. the Government in the Sunshine Act in the United States from 1976 or the Participatory Budgeting Law in Peru from 2003).
Laws on accountability and integrity, including those on conflict of interest, financial disclosure, lobbying, whistle-blower protection and foreign bribery, often include numerous provisions that contribute to openness (e.g. by providing mechanisms for citizen oversight). Some countries have even adopted specific legislation on accountability (e.g. Canada’s Federal Accountability Act from 2006) which specify measures regarding administrative transparency and oversight. In addition, laws regulating the functioning of independent public institutions (e.g. Ombudsman, Comptroller, Audit institutions) usually include mechanisms for citizens to complain and oversee government actions and decisions
Laws regulating the organisation of the different levels of government (e.g. decentralisation laws) can include provisions regarding the open government principles. In many cases, these frameworks reproduce the federal/central government responsibilities to local or decentralised levels, especially on citizen participation mechanisms.
Laws promoting the use of digital technology (e.g. connectivity, e-government laws, etc.) sometimes foresee specific obligations regarding information transparency and / or their use for participatory practices.
Lastly, specific / sectorial laws often include rights and obligations regarding the principles of open government. For example, in many countries, budget laws stipulate budgetary transparency and the participation of citizens and stakeholders in the budgetary process. Along similar lines, procurement laws may require the proactive disclosure of relevant information and consumer protection laws may establish complaint and feedback procedures.
Source: OECD (2020[8]), Taking an integrated approach to the promotion of transparency, integrity, accountability and stakeholders’ participation: Towards an Open Government Strategy, Internal paper presented to the Working Party on Open Government, GOV/PGC/OG(2020)4/REV1
Open government principles and civic freedoms are protected by Brazil’s Federal Constitution
Most OECD Member countries have included references to the principles of open government and specific rights and obligations associated with them in their constitutions (OECD, forthcoming). For example, many Constitutions of OECD Members establish access to public information and citizen participation as basic constitutional rights. Moreover, they usually include specific provisions on the protection of civic space (e.g. freedom of assembly, freedom of the press, etc.).
Brazil adopted its current Constitution on October 1988 after two years of deliberation among the elected Constitutional Assembly4. The Constitution establishes the administrative organisation of the Federation, the institutional architecture as well as the different prerogatives of the State. It also recognizes a diverse set of rights, from voting rights, to labour and economic rights and compared to previous constitutions, the current is citizen-oriented with the goal of fostering democracy. For these reasons, the Constitution is often referred to as the “Citizen Constitution” (Politize, 2018[9]).
The Federal Constitution of Brazil does not include any specific references to the concept of open government. However, in line with practice in many OECD Member and Partner Countries (Box 3.5), it contains a number of provisions concerning the open government principles, as well as numerous provisions relating to the protection and promotion of civic space (see Table 3.1 for a detailed overview). In particular, the Brazilian Constitution makes citizen and stakeholder participation a constitutional principle and a pillar of the democratic system. Participatory elements are spread throughout the document, with nine Articles referring to the involvement of citizens and stakeholders in public life (see Chapter 6). As a fundamental prerequisite to the transparency agenda, the Brazilian Constitution also establishes the right to access public information (see Chapter 7).
Table 3.1. The most relevant provisions on the open government principles in Brazil’s Constitution from 1988
Source: Constitution of the Federal Republic of Brazil, 1988, as amended, http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm. Author’s own elaboration.
The protection of open government principles, policies and practices at the constitutional level provides Brazilian public institutions and stakeholders with a clear mandate to promote open government reforms. It further creates the necessary legal certainty and legitimacy for effective implementation of all subsequent legislation (OECD, 2019[2]) .
Box 3.5. Examples of open government-related principles in national constitutions
Norway’s Constitution, first adopted in 1814, has been amended over the years to reflect an ever-deepening commitment to openness and transparency. It emphasises the citizens’ right to trustworthy information: “Everyone has a right of access to documents of the State and municipal administration and a right to follow the proceedings of the courts and democratically elected bodies. (…) It is the responsibility of the authorities of the State to create conditions that facilitate open and enlightened public discourse.”
Sweden’s Constitution states that citizens possess the right to freely seek information, organise and hold demonstrations, and found and join political parties. These rights are part of the Constitution, which is based on four fundamental laws: the Instrument of the Government, the Freedom of the Press Act, the Fundamental Law on Freedom of Expression and the Act of Succession. In 1766, Sweden became the first country in the world to incorporate the Freedom of the Press into its constitution. Freedom of the Press is based on freedom of expression and speech, which are among the most important pillars of democracy. In accordance with this principle, those in authority must be held accountable and all information must be freely available. The identities of people who work as sources and provide publishers, editors or news agencies with information are protected. The law on Freedom of Expression was passed in 1991 to expand this protection to non-print media, such as television, film and radio. The law moreover seeks to ensure an unimpeded exchange of views, information and artistic creativity.
Colombia’s 1991 Constitution stipulates that “Colombia is a Social State of Law organised as a unitary republic, decentralised, with autonomy of its territorial units, democratic, participatory and pluralistic” (Article 1). It further establishes that “(t)he essential goals of the state are ... to facilitate the participation of all in the decisions that affect them and in the economic, political, administrative and cultural life of the nation”.
Source: Thurston, A. (2013[10]), “Openness and information integrity in Norway”, Open Government Partnership Blog, https://www.opengovpartnership.org/stories/openness-and-information-integrity-in-norway/; Government of Sweden (n.d.[11]), “Openness shapes Swedish society”, webpage, https://sweden.se/society/openness-shapes-swedish-society (accessed 17 December 2018).
Brazil has adhered to numerous conventions, treaties and declarations that are related to open government
Brazil has signed and ratified numerous international conventions, treaties and declarations which complement the country’s constitutional and legislative frameworks for open government (Table 3.2). For example, Brazil has adhered to the 2017 OECD Recommendation of the Council on Open Government and it is a signatory of the Iberoamerican Open Government Charter. Specific discussions on these documents can be found in the respective implementation chapters of this Review. For example, Chapter 7 on Transparency discusses that Brazil has signed but not yet ratified the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, also known as the Escazú Agreement.
Table 3.2. Overview of the most relevant conventions, treaties and declarations in the area of open government signed / ratified by Brazil
Source: Author’s own elaboration, based on Government of Brazil (2021[12]).
The legal and regulatory framework for open government in Brazil is wide
In recent years numerous laws and decrees on open government policies and practices have been adopted in Brazil, building on the constitutional framework presented above. Table 3.3 provides a non-exhaustive overview of the most important laws relating to the open government principles of transparency, integrity, accountability and stakeholder participation, while Table 3.4 shows the most important decrees and regulations on the principles that are currently in force. A more detailed discussion of laws that are related to each of the open government principles can be found in the implementation Chapters of this Review (Chapters 6-8). In particular:
Chapter 6 on Citizen and Stakeholder Participation presents different laws and regulations that mandate the participation of non-public stakeholders in specific policy processes, as well as laws and regulations that mandate the participation of specific groups of stakeholders (e.g. youth). The Chapter also includes a discussion of the legal basis of Conferences and Councils and it analyses Decree 9759 of 2019, which revoked the National Policy and the National System on Social Participation (Decree 8243 of 2014).
Chapter 7 on Transparency includes an in-depth discussion of Brazil’s Access to Information Law (Law 12,527 of 2011) which outlines the general procedures for proactive and reactive disclosure for all levels and branches of government. The Chapter further details Brazil’s wider transparency regulatory ecosystem, including a discussion of other laws, decrees and policies that regulate different transparency provisions that are either interlinked or complementary to access to information, such as those relating to open data, protection of personal data and archives.
Chapter 8 on Accountability provides an overview of the current legal arrangements in place to ensure accountability in policymaking and service design and delivery in Brazil. The Chapter further details the laws and regulations in place for both horizontal and vertical accountability, for example, the range of existing frameworks that encourage government responsiveness, feedback and engagement with stakeholders and citizens, such as the decrees and ordinances underpinning the ouvidorias system.
Table 3.3. An overview of Brazil’s most important laws on open government policies and practices
Source: Author’s own elaboration.
Table 3.4. An overview of the most relevant decrees on open government policies and practices
Source: Author’s own elaboration.
The legal basis for open government reforms could be strengthened and harmonised
The analysis conducted in the implementation Chapters of this Review reveals that legislative provisions relating to the open government principles and their protection and promotion are extensive and comprehensive and that Brazil’s legal and regulatory foundations for open government are aligned with OECD standards. In order to increase legal clarity for both citizens and public officials and identify eventual gaps and overlaps in the existing legislation, Brazil could consider creating a compendium of all laws and regulations that relate to the open government principles. This compendium could be integrated into the one-stop-shop open government portal that is recommended in Chapter 4.
The implementation Chapters of this Review also reveal that there are opportunities to strengthen the existing legal and regulatory framework for each of the open government principles:
Chapter 6 on Participation finds that Brazil’s legal framework for citizen and stakeholder participation is relatively strong. Provisions and rights on this open government principle are spread out over different legislative documents. Some address the implementation of Constitutional principles, while others create specific participatory mechanisms such as the Councils or the Conferences. In 2014, Decree 8.243 on the National Policy of Social Participation – which has by now been revoked – attempted to streamline and harmonise provisions on citizen and stakeholder participation.
Chapter 7 on Transparency finds that several laws, decrees and policies regulate –with varying scopes of application- different transparency provisions. While these legal obligations contribute to develop a more transparent culture in the public administration and provide concrete tools for citizens to monitor government actions, they can also represent confusing obligations, burdensome reporting lines and bureaucratic procedures, particularly for subnational governments. More clarity and coherence in regards to the primacy and complementarities across the laws, decrees and policies could help improve the overall understanding and implementation. The Chapter also finds that to improve the application of the access to information law, efforts could be taken to ensure that the law is effectively implemented by all bodies subject to the law. The Chapter recommends increasing efforts to improve the quality of information through a more efficient appeals process, providing stronger sanctions for non-compliance, and in the long-term, creating an independent institution to have the oversight mandate to ensure compliance to the law.
Chapter 8 on Accountability finds that there are comprehensive legal frameworks for accountability. The Constitution outlines the separation of the legislative, executive and judicial powers, an essential element of state accountability. Furthermore, a range of legislation aims to increase accountability by combatting corruption and sanctioning misconduct and misuse of funds among public officials, including laws and decrees on administrative improbity, public integrity, fiscal responsibility, and whistleblowing. While these frameworks are extensive, they do not explicitly define Brazil’s approach to accountability and the Chapter recommends that Brazil use their next OGP National Action Plan to advance specific commitments on improving accountability across the administration.
The review of Decree 10.160 from 2019 establishing the National Open Government Policy that is recommended below could provide a further opportunity to ensure a harmonised, synergic, and coherent implementation of the provisions on open government that are included in the existing legal and regulatory framework.
Fostering the policy framework for open government in Brazil
Policy documents (such as strategies, action plans, national policies, institutional plans, memos, etc.) give direction to a country’s policy agenda, outline objectives, detail initiatives to achieve them and facilitate monitoring and evaluation of reforms. Policy documents can further be a tool to harmonise practices across government, facilitate communication with internal and external stakeholder, and support accountability of public action.
According to the results of the 2020 OECD Survey on Open Government (OECD, 2021[4]), the policy frameworks for the promotion of openness in OECD Member and Partner Countries are usually very diverse, reflecting the breadth of initiatives that are related to the promotion of openness (OECD, forthcoming[7]). As visible from Figure 3.3, the main policy documents for open government include the OGP action plans; whole-of-government policy documents outlining the government agenda (e.g. National Development Plans); public sector reform and modernization strategies; as well as policy documents focusing on one or more of the open government principles (e.g. Access to Information / Open Data Strategies, Integrity Strategy).
Figure 3.3. Main policy documents on open government in OECD countries and Brazil
Note: Figures in percent. Includes 109 policy documents by 32 OECD countries and Brazil.
Source: OECD (2021[4]), 2020 OECD Survey on Open Government
This section assesses Brazil against provision 1 of the OECD Recommendation of the Council on Open Government (Box 3.2), introducing the main policy documents on open government in Brazil (Table 3.5). Rather than analysing the effective implementation of each of these policy documents (see Chapters 6, 7, and 8 for this), this section identifies areas of opportunities and challenges associated with their governance. It finds that, like in many OECD Member and Partner Countries, Brazil’s OGP action plan marked the first attempt to group different initiatives relating to the open government principles under the umbrella of the concept of open government. The biannual OGP action plans have been the main driver of Brazil’s open government agenda and have allowed the government to push for ambitious and far-reaching open government reforms.
The section also notes that, while a number of other policy documents including initiatives to foster the open government principles have emerged in recent years (e.g. the National Strategy for Digital Government and the National Open Data Policy), Brazil could benefit from the design of a whole-of-government policy framework for open government. To strengthen and streamline Brazil’s policy framework and enable a holistic and integrated open government approach, the section suggests that Brazil considers designing a Federal Open Government Strategy.
Table 3.5. Overview of the main policy documents guiding open government reforms in Brazil
Source: Author’s own elaboration.
The Multi-annual Plan and the National Strategy for Economic and Social Development include commitments to the principles of open government
High-level policy documents are the expression of countries’ political commitment, as they provide a medium and/or long-term vision for the government’s policy agenda (usually for one electoral period but sometimes more) and involve the wider government. The inclusion of relevant references to the concept of open government in them gives great national relevance to the open government agenda and raise its profile. It can further provide a platform for civil society organisations and other stakeholders to push for ambitious reforms and monitor their implementation.
In Brazil, the Multi-annual Plan (Plano Plurianual, PPA) is the key governmental planning instrument. It defines objectives and goals for the country over a period of four years and sets the guidelines, goals, and objectives of the Federal Government as well as its expenditures. As explained in further details in the forthcoming OECD Centre of Government Review of Brazil, the PPA is prepared by the executive and approved by the legislature in the first year of each government term. It is therefore in effect from the second year of term until the end of the first year of the following term. The PPA is foreseen in articles 165 and 166 of the Federal Constitution (OECD, forthcoming[13]).
Law 13.971 of 2019 approved the current PPA for 2020-2023, entitled “Plan, Prioritize, Achieve” (“Planejar, Priorizar, Alcançar”). Article 3 of the law highlights “the improvement of governance, modernization of the State and federal public management, with administrative efficiency, transparency of State action, digitalization of government services and promotion of the productivity of the State's administrative structure” as one of its key directives. The Technical Manual of the Federal Government’s 2020-2023 Pluriannual Plan (Government of Brazil, 2020[14]) also includes a section highlighting the importance of “social participation” in policy-making. Section 5.4 of the Manual reads:
Communication between government and society is one of the premises of government planning. In this sense, presenting information to the public is essential to publicize the main public policies that are being implemented by the federal administration. Likewise, it is essential to listen to society - the beneficiary of public policies - at all stages of the PPA (preparation, monitoring, evaluation and review). The importance of accountability, transparency and responsiveness of public policies implemented by the federal government must be emphasized. In the case of communication with society, in particular, social control (or vertical accountability) is of particular importance, which must be institutionalized together with horizontal accountability (between government agencies or between Powers).
Along similar lines, the institutional axis of the National Strategy for Economic and Social Development for 2020-2031 (Estratégia Nacional de Desenvolvimento Econômico e Social 2020-2031, ENDE) (Government of Brazil, 2020[15]), Brazil’s multiannual development strategy, highlights “improving mechanisms for transparency, accountability, integrity management, risks and internal controls and participation and social control” among the key action that are needed to strengthen public governance. The strategy further includes a number of commitments to promote and protect civic space including by “promoting actions for structuring and strengthening ombudsmen and internal affairs units and providing greater transparency to data on public security”.
While the PPA and the ENDE refer to the open government principles, they do not explicitly mention the concept of open government. Nevertheless, the inclusion of commitments to transparency, accountability, integrity, and stakeholder participation in both documents provides a very strong mandate to the co-ordinating institutions to develop and implement a full-fledged open government reform agenda.
The National Policy on Open Government provides the framework for Brazil’s OGP process
The National Policy on Open Government (Política Nacional de Governo Aberto) established through Decree 10.160 (Government of Brazil, 2019[16]) provides the Office of the Comptroller General of the Union (CGU) with the mandate to co-ordinate the design of the biannual OGP action plans. Article 1 of the decree highlights that the Policy “will be operationalized through action plans consisting of initiatives, actions, projects, programs and public policies that expand transparency, access to information, improving public service delivery and strengthening integrity".
The title “National Policy on Open Government” can be misleading as it in fact only focuses on elements relating to the OGP process, rather than outlining the wider open government agenda. For example, the decree details the list of participants of the Interministerial Committee on Open Government (Comitê Interministerial de Governo Aberto, CIGA – see Chapter 4) and it elaborates on the substantive policy areas that the action plans are supposed to focus on. Given its limited focus, Brazil’s National Policy on Open Government does not provide the basis for a holistic and integrated Open Government Strategy, as it is defined by the OECD (see Box 3.1).
The OGP action plans have been a key tool to foster open government reforms in Brazil since 2011
Members of the Open Government Partnership (OGP) have to develop bi-annual action plans. In line with OGP rules, these action plans have to be the product of a co-creation process in which government institutions and civil society work together to design commitments that aim to foster open government principles. Across the OECD, OGP action plans have become the most common form of action-oriented policy frameworks for the promotion of openness. At the time of writing, 29 out of 38 OECD countries were members of the OGP.
Brazil has been a founding member of the OGP, hosting the partnership’s first international summit in 2011 and co-chairing it from 2012 to 2013. Between 2011 and 2018, Brazil made 111 open government commitments as part of its OGP action plans, producing some notable outputs (Box 3.6):
32 commitments in the first action plan;
52 commitments in the second plan;
16 commitments in the third action plan; and
11 commitments in the fourth plan (Government of Brazil, 2020).
Box 3.6. Notable outputs of Brazil’s past OGP Action Plans
First Action Plan
Establishment of the Federal System for Access to Information, which provided the Federal Government with a proper room for implementing the Access to Information Act (LAI),
The restructuring of the Portal of Transparency,
The establishment of the National Open Data Infrastructure (INDA)
Creation of the Brazilian Portal of Open Government
Second Action Plan
Enhancement on data transparency of the National Consumer Defense System (SINDEC),
The Transparent Brazil Program,
The joint construction of the Federal System of Ombudsmen’s Offices,
the opening of the Union’s budget execution data, the government procurements, the provision of government systems information in open data format
Third Action Plan
Improved Access to Information procedures by establishing deadlines for responses including their monitoring as well as stricter rules for denying disclosure based on the “use of classified information” exception clause
Launch of digital plattform with over 28 000 open educational resources which directly benefits more than 100,000 schools
Institutionalisation of civil society participation in the Pluriannual Plan through a consolidation of methods of social participation
Source: OGP (2014[17]), Brazil Progress Report 2011-2013, https://www.opengovpartnership.org/documents/brazil-relatorio-do-progresso-2011-2013; OGP (2017[18]), Brazil End-of-Term Report 2013-2016, https://www.opengovpartnership.org/documents/brazil-end-of-term-report-2013-2016/; OGP (2020[19]), Brazil End-of-Term Report 2016-2018, https://www.opengovpartnership.org/documents/brazil-end-of-term-report-2016-2018/
An analysis of the four action plans reveals that, while the number of commitments went down over time, they have become more strategic, moving from a technical and compliance-driven perspective of open government towards a more transformative perspective that recognises its contribution to wider policy objectives. This shift could also be seen as the beginning of a move from the first generation of open government initiatives (OpenGov 1.0) towards OpenGov 2.05 (Figure 3.4).
Like those of many other OGP participants, Brazil’s first (2011-2013) and second (2013-2016) action plans focused mainly on short-term deliverables and / or already ongoing initiatives. The third (2016-2018) and fourth (2018-2021) action plans then started including more innovative and strategic medium-term commitments. For example, the third action plan included an explicit link with the United Nations Sustainable Development Goals (SDGs). This trend is aligned with practice in other OGP member countries where the number of commitments also went down over time, while the breadth and depth of each commitment increased.
Figure 3.4. From Open Government 1.0 to Open Government 2.0
Source: OECD (2020[8]), Taking an integrated approach to the promotion of transparency, integrity, accountability and stakeholders’ participation: Towards an Open Government Strategy, Internal paper presented to the Working Party on Open Government, GOV/PGC/OG(2020)4/REV1.
In terms of substantive focus, the action plans have also become broader over time. OGP’s Public Commitment Database (OGP, n.d.[20]) contains 45 granular categories under seven umbrella topics. For example, under the umbrella topic ‘Integrity’ one can find the categories ‘Asset disclosure’, ‘Beneficial Ownership’ and ‘Conflict of Interest’, among others. A detailed analysis of Brazil’s four action plans using this categorisation shows while the first action plan contained 0.34 policy fields per commitment (32 commitments covering 11 policy fields), this value has increased steadily to 0.91 policy fields per commitment in the fourth action plan (11 commitments covering 10 policy fields).
Figure 3.5. The diversification of Brazil’s OGP action plans over time
Source: Author’s own illustration, based on OGP (n.d.[20]), OGP Commitment Database, https://www.opengovpartnership.org/open-data/#comms_db
The 11 commitments included in the fourth action plan (Box 3.7) which was under implementation at the time of writing show that the federal government and stakeholders recognise the value of open government reforms to contribute to a positive change across a variety of areas. Its policy focus emphasises cross-cutting issues and includes a sectoral approach, with reference to topics such as climate change, water resources and food and nutrition, as advocated for by the OECD (OECD, 2019[2]).
Box 3.7. The 11 commitments included in Brazil’s 4th OGP Action Plan
1. Open Government on States and Municipalities: Develop collaborative actions in order to disseminate knowledge and map good governmental practices to promote subnational involvement.
2. Open Data Ecosystem: Establish, in a collaborative way, a reference model for an Open Data Policy that fosters integration, training and awareness between society and the three government levels, starting from a mapping process of social demands.
3. Innovation and Open Government in Science: Establish scientific data governance mechanisms for the advance of open science in Brazil
4. Strengthening Public oversight over the Food and Nutrition Security National Plan: Implement training actions for public officials and civil society, in order to increase the recognition of the Human Right to Adequate Food as well as to strengthen public oversight towards the Food and Nutrition Security Policy.
5. Analysis over the user’s satisfaction and ANTTs regulation social impact: Define mechanisms for data collection in order to improve the National Terrestrial Transport Agency’s (ANTT) regulated services and encourage society participation on satisfaction surveys.
6. Transparency and Public Oversight over Mariana´s Reparation Processes and other Municipalities in the Region: Implement instruments and actions of transparency, access to information and the development of capacities to expand and qualify the participation and public oversight on the reparation processes.
7. Transparency in the Legislative Process: Increase participation of various social segments on the legislative process (law drafting) through integrated efforts to increase transparency, adjust language, communication and promote innovation.
8. Land Transparency: Implement urban and rural base registries (National Rural Properties Cadaster – CNIR) on an integrated model, providing data to society, for the operationalization of the Territorial Information Managing National System (SINTER).
9. Open Government and Climate: Develop, collaboratively, a transparent mechanism for the evaluation of actions and policies related to climate changes.
10. Open Government and Water Resources: Improve the Information and Water Resources National System (SNIRH) for the strengthening of Committees located at critic areas in order to promote an integrated management over Water Resources.
11. Governmental Transparency – Access to Information Act in States and Municipalities: Develop a National Electronic System for Information Requests (National eSIC) in order to implement the Access to Information Act (LAI) in states and municipalities.
Source: CGU (2018[21]), Brazil’s 4th National Action Plan, https://www.opengovpartnership.org/documents/brazil-national-action-plan-2018-2021/
As further discussed in Chapter 6 on Participation, Brazil’s action plan cycles have involved an increasing number of institutions over time. While they initially only included contributions from a small number of federal government institutions and a limited number of CSOs, the fourth action plan cycle included sub-national governments, the legislature, the judiciary and a much broader range of non-public stakeholders. This move towards a broadened participation, as well as the progressive move towards an open state approach, can also be observed in many second and third generation action plans across the OGP membership.
The OGP process has provided Brazil’s open government agenda with a structure and allowed the CGU to raise the profile of the concept of open government and of specific open government reforms. Some of the commitments that were included in past OGP Action Plans have made important contributions to fostering the openness of the Brazilian government (Box 3.6). Interviews conducted during the fact-finding missions confirmed that the co-creation process enabled the CGU to build relationships with internal and external stakeholders and put reforms in the spotlight of the national and international open government community. Over the years, a small but dedicated open government community has emerged in Brazil, consisting mainly of stakeholders in and around the capital city of Brasilia.
However, interviewees also noted that the Brazilian open government community has been facing an increasing number of challenges when trying to push for ambitious open government reforms. Direct channels of communication between public institutions and stakeholders have diminished and interactions have become less fluid. This tendency of increasingly complicated government-citizen/stakeholder relations in the framework of the OGP process should be seen as part of a wider trend of a shrinking civic space in Brazil, as further discussed in Chapter 5.
The process to design the next OGP action plan presents an opportunity to push for ambitious reforms
At the time of writing Brazil was finalising the implementation period of its fourth OGP action plan, while also co-creating the country’s fifth OGP action plan. Brazil could strategically use its next OGP action plans to push for even more ambitious and far-reaching reforms. As done in the fourth action plan, Brazil could for example include a number of second generation open government initiatives (i.e. those that focus on the ways in which the government designs policies and delivers services, using open government approaches and applying open government tools in different policy areas, including gender, environment, health, education, urban development etc.) in it.
Finally, the next OGP action plans could also provide an opportunity for Brazil to move forward with the creation of an integrated open government ecosystem. For example, the country could consider including the design of the recommended National Open Government Strategy (see below) as a commitment into the action plan, as for example done by Finland and Tunisia (Box 3.8).
Box 3.8. The inclusion of commitments on Open Government Strategies in Finland’s and Tunisia’s OGP action plans
High-level political commitment for a strategic open government approach in Finland. The country’s Open Government Strategy 2030 was presented in 2020 as a chapter of the overall public administration strategy. It is therefore directly linked to the current Government Programme and enjoys high political priority. The four page document contains five sections:
Vision: Outlines the purpose of open government in Finland. Open government is described as essential for “trust, security and confidence in the future” and built on four central statements. Its role is understood as promoting exchange and understanding between all relevant stakeholders across the governmental and non-governmental sector. Looking beyond its national borders, Finland seeks to promote its vision of open government also internationally.
Key priorities: Directly related to the vision of open government, the strategy establishes objectives for each of the four vision statements. For example, the vision of open government reinforcing dialogue corresponds to the objective of improving “knowledge in the public sector about how digital interaction channels work, and to encourage their broader and more active use in dialogue.
Definition: Provides a conceptual understanding of open government that includes transparency, integrity and accountability of government activities, and access to information and services. Further, this section outlines why the strategy is important and illustrates the elements of the Finnish Open Government Framework.
Measuring progress: Sketches indicators for how to measure the strategy’s objectives, such as “[a]n increase in the amount of dialogue […] and an increase in the number of users of dialogue methods in government”.
Monitoring and assessment: The implementation of the strategy shall be assessed and potentially modified periodically with each new OGP action plan until 2030.
Streamlining OGP activities in Tunisia
Commitment 8 of Tunisia’s 2021-2023 action plan concerns the development of an indicator-based open government strategy. This document will primarily serve as strategic framework for the design and implementation of OGP action plans. In particular, it aims to coordinate and integrate the various OGP efforts across national and local levels. It pursues to spread the culture of open government across the public sector and all relevant stakeholders with a common understanding and purpose.
In this respect, the strategy will outline a short-, medium-, and long-term vision for open government, taking into consideration the views of all relevant stakeholders during consultative workshops. Further, it will operationalise the concept of open government and establish measurable goals and objectives which allow to evalute the impact of open government. The OECD assists Tunisia in this project through an Open Government Scan. The strategy is envisioned to be launched in July 2022.
Source: Ministry of Finance of Finland (2020[22]), Open Government Strategy 2030, https://avoinhallinto.fi/assets/files/2021/03/Open_Government_Strategy2030.pdf; Presidency of the Government of Tunisia (2021[23]), Action Plan for the Open Government Partnership 2021-2023, https://www.opengovpartnership.org/wp-content/uploads/2021/08/Tunisia_Action-Plan_2021-2023_EN.pdf
The Governance Policy recognises the importance of transparency and integrity for good public governance
The Governance Policy of the Federal Government (Política de governança da administração pública federal direta, autárquica e fundacional) was adopted through Decree 9.203 from 2017 (Government of Brazil, 2017[24]). Establishing the Interministerial Governance Committee (Comitê Interministerial de Governança, CIG) as its co-ordinator (see Chapter 4), the Governance Policy aims to inaugurate a process of constant and gradual transformation of the federal public administration towards good public governance.
The Policy establishes integrity and transparency among the key principles of public governance and highlights the active participation of society as one of the directives for achieving good governance. As such, the governance policy recognizes the contribution of the principles of open government to public sector modernization. Most notably, the adoption of the Governance Policy has had a significant impact of Brazil’s agenda to promote public sector integrity.
In 2019, the CGU published Ordinance No. 57 to implement the Governance Policy. The Ordinance establishes procedures for developing, implementing and monitoring integrity programmes in all federal public institutions. Integrity programmes are mandatory and include the establishment of Integrity Management Units in all public institutions. According to information received from the Brazilian government, at the time of writing, 182 public institutions had presented their Integrity Programmes.
Box 3.9. Integrity Programmes and Management Units (UGI) in Brazilian federal public institutions
An integrity programme is a structured set of institutional measures designed to prevent, detect, and sanction corruption, fraud, irregularities and ethical misbehaviours. It aims to ensure that those responsible for integrity-related activities and areas such as corruption prevention, internal audit, disciplinary enforcement and transparency work together in coordination to ensure integrity and minimize the potential risks of corruption.
The integrity programme has a preventive focus, since it is principally aimed at reducing the risks of corruption in a given organization. In this sense, developing an integrity programme is seen as going beyond mere compliance with regulations.
Integrity programmes have to develop along a number of axes established by Decree No. 9,203/2017:
Commitment and support from senior management;
Existence of a unit responsible for implementation in the organ or entity;
Analysis, evaluation and management of risks associated with integrity; and
Monitoring of the elements of the integrity program.
Establishing the Integrity Management Unit (UGI) is the first step in establishing the integrity program because it will coordinate the development of the program, as well as its subsequent implementation, monitoring and review.
CGU Ordinance No. 1,089 of April 25, 2018 provides for the competencies and position of the UGI within public entities. In some cases, it is recommended that the UGI be established within the Special Office of Internal Control (AECIs), which already works with the topic of integrity; in other cases, it is recommended that the UGIs are established as a cross-cutting area with easy access to the other units of the organization, which is necessary for it to carry out their responsibilities.
Source: CGU (n.d.[25]), Integridade Pública, https://www.gov.br/cgu/pt-br/centrais-de-conteudo/campanhas/integridade-publica/integridade-publica
The Strategy for Digital Government has strong links with the promotion of openness
The Strategy for Digital Government for 2020-2022 (Estratégia de Governo Digital para o período de 2020 a 2022) adopted through Decree 10.332 from 2020 (Government of Brazil, 2020[26]) includes a number of commitments to foster transparency and participation as part of its ambition to improve public service delivery and digitalise the Brazilian public sector. For example, “a citizen-centered government” and “a transparent and open government, which acts proactively in making data and information available and enables the monitoring and participation of society in the various stages of services and public policies” are among the Strategy’s six priority axes.
In particular, objective 13 aims to “review transparency and open data channels by, among other priorities, integrating the transparency, open data and ombudsman portals into the single gov.br portal (by 2020) and by expanding the number of open databases, in order to reach 0.68 points in the criterion of data availability of the OECD OURData Index by 2022”. Furthermore, objective 14 targets “citizen participation in the elaboration of public policies” and includes an initiative to sign partnerships for the construction of social control applications. This initiative is supposed to be implemented through “three datathons or hackathons until 2022 as well an initiative to improve the means of social participation and provide a new participation platform by 2021”.
The implementation of the Strategy is coordinated by the Secretariat for Digital Government (Secretaria de Governo Digital) in the Ministry of Economy. The Comptroller General of the Union actively contributed to the design of the Strategy and co-ordinates the implementation of those commitments that relate to its area of expertise. In order to achieve the Strategy’s objectives, public institutions are also asked to prepare a Digital Transformation Plan (Plano de Transformação Digital), a Master Plan for Information and Communication Technology (Plano Diretor de Tecnologia da Informação e Comunicação) as well as an Open Data Plan (Plano de Dados Abertos) (see Article 3 of Decree 10.332 from 2020).
The National Strategy for Digital Government constitutes an important input for Brazil’s open government agenda. However, it does not (and does not aim to) capture the full potential of open government, as it is limited to its contribution to specific open government objectives that relate to digitalisation.
The Open Data Policy has become an integral part of Brazil’s wider open government agenda
The Open Data Policy of the Federal Executive Branch (Política de Dados Abertos do Poder Executivo federal) established through Decree 8.777 from 2016 (Government of Brazil, 2016[27]) and Decree 9.903 from 2019 (Government of Brazil, 2019[28]) defines rules for the provision of open government data within the scope of the federal executive branch. The Policy follows up on the access to information law’s requirement to provide information in open data format. It established the obligation for public institutions (except companies) to create Open Data Plans (Plano de Dados Abertos). Each plan must contain the data inventory of the public institution and a roadmap to publish data that is not yet available in an open data format. The institution responsible for managing and monitoring the Open Data Policy is the Federal Comptroller General (CGU).
The Open Data Policy has become a cornerstone of Brazil’s wider open government agenda, most notably since the responsibility over the open data file was moved to the CGU in 2016. In case Brazil decides to move towards a fully integrated open government agenda, it will be primordial to ensure that the Open Data Policy is an integral part of it.
Public institutions implement a range of policy documents that are linked to the promotion of the open government principles
Brazilian public institutions at the federal level (i.e. ministries and agencies) do not have the obligation to produce any dedicated policy document on open government. Nevertheless, according to desktop research and the results of the OECD Survey on Open Government for Brazilian Public Institutions (OECD, 2021[6]), federal ministries and agencies are implementing a range of institutional policy documents that are linked to the promotion of openness. The most important include:
Integrity Programmes, as mandated by the Governance Policy (see Box 3.9);
Open Data Plans, as mandated by the Open Data Policy (see Chapter 7 on Transparency); and
Digital Transformation Plans, as mandated by the Digital Government Strategy (see above).
Moreover, public institutions at the federal level are mandated by Decree 9.203 from 2017 and by instruction N°24 of 2020 to publish regular strategical plans to lay out their objectives to ensure public action is aligned with global government actions and the needs of the public (Government of Brazil, 2020[29]). These plans include the mission, the vision and the values of the institution, milestones to achieve, as well as metrics for evaluation. As per Decree 9.203, open government is not part of the elements that public institutions need to integrate in these plans. Nevertheless, many public institutions have include elements that are related to open government policies and practices in their strategical plans. For example, as further discussed in Chapter 6 on Participation, a large number of institutions have included measures related to the inclusion and participation of citizens and stakeholder. Others have made transparency a guiding principle of their institutional policy agendas. Relevant initiatives are scattered through different institutional policy documents and often implemented in isolation from each other.
Brazil could consider designing a whole-of-government Open Government Strategy
This section has shown that the policy framework for the promotion of the open government principles in Brazil, like in most OECD Member Countries, is wide and articulated in different policy documents. The main formal document that brings together a range of initiatives touching upon the open government principles is the OGP action plan. However, like in all OGP member countries, due to its focus on implementation and 2 year length, it is composed of a series of priority initiatives focusing on short-term policy issues, which does not allow it to provide a comprehensive and integrated vision of how all public institutions, in all branches of power, can contribute to transform Brazil’s democracy as to make it more open, transparency and participatory.
In order to pursue a truly holistic approach to the promotion of openness, Brazil could consider adopting an integrated Open Government Strategy for the federal executive branch (Estratégia de Governo Aberto do Poder Executivo Federal, EGA). The OECD Recommendation of the Council on Open Government (2017) defines an Open Government Strategy as:
“A document that defines the open government agenda of the central government and/or of any of its sub-national levels, as well as that of a single public institution or thematic area, and that includes key open government initiatives, together with short, medium and long-term goals and indicators”.
An Open Government Strategy presents a whole of government roadmap for the open government agenda. It provides an umbrella policy framework to align all policy documents that are linked to openness (e.g. the OGP Action Plan, the Open Data Policy, Digital Government Policy, etc.) and bring them together under a coherent medium- to long-term narrative. Recognising the benefits of having an umbrella policy framework for open government (Box 3.10), an increasing number of OECD Member and Partner Countries, including Finland, Colombia, Italy, Argentina, Tunisia and Morocco, have started designing and / or implementing Federal / Central Open Government Strategies.
Ultimately, each country’s Open Government Strategy has to be adapted to its specific context and priorities. The following sub-sections discuss key elements that Brazil could take into consideration when designing its own EGA. More detailed information on Open Government Strategies can be found in the paper Taking an integrated approach to the promotion of transparency, integrity, accountability and stakeholder participation: Towards an Open Government Strategy (OECD, 2020[8]).
Box 3.10. The benefits on a whole of government Open Government Strategy (OGS)
An OGS ensures whole-of-government policy coherence
An OGS can provide the umbrella for all open government initiatives implemented in a country and ensure that they follow similar methodological guidelines and contribute to a shared vision of openness. As such, a whole of government Open Government Strategy, besides putting new initiatives in place, makes those policies and initiatives that are already being implemented by public institutions more coherent and stronger by working together under the same coherent (and powerful) narrative and methodological setting.
An OGS ensures efficiency and intra-institutional knowledge sharing
An OGS is a tool to save resources and reduce costs. Government institutions spend time and public resources trying to develop solutions that might already be in place or build on lessons learned by other administration that have already successfully implemented certain reforms. An OGS helps to intensify efforts to create collaborative solutions to shared problems. A concerted OGS can help public institutions to elaborate a common understanding and shared standards relating to open government, thereby harmonising practices. As such, An OGS can enable the government to achieve outcomes – at a lower cost – that would not be possible to achieve if institutions work in isolation.
An OGS enables collaboration and co-ordination
The main purpose of whole-of-government frameworks is to enable different government entities to pursue joint objectives in a co-ordinated manner. The Australian government defines whole-of-government as “public service agencies working across portfolio boundaries to achieve a shared goal and an integrated government response to particular issues (…)”. An OGS that includes clearly assigned responsibilities to the identified goals and objectives can be a valuable co-ordination and collaboration instrument.
An OGS acts as a tool for mainstreaming
The design and implementation of an OGS gives visibility to the concept of open government and puts open government reforms on all public institutions’ agendas. An OGS, hence, mainstreams an openness culture by spreading and implementing the values and principles of open government across the entire administrations and all policy areas. In addition, it communicates to civil servants, citizens and stakeholders that the government embraces a new understanding of the way the state is run. As such, An OGS creates a powerful, compelling and coherent narrative that inspires policymakers to champion open government reforms in their own areas of work. Lastly, an OGS can help civil servants and citizens to better understand the added value and concrete output of open government by applying it to the policy area of their interest and expertise.
An OGS is a formidable governance tool
An OGS allows for an effective management of a country’s open government agenda. The development of an OGS is usually led by a high-level official (e.g. Minister, Secretary General, senior appointee, inter-ministerial delegate, etc.) and accompanied by concrete efforts to create institutional and governance mechanisms (e.g. inter-ministerial committees; monitor and evaluate mechanisms, training modules, HR performance evaluations; budget allocations, etc.). High-level commitment of a politician can also be a tool to foster the impact of the strategy (as per the resources, mobilisation power and symbolism). In addition, the adoption of an OGS empowers a person or office that will present the open government agenda to the wider public, monitor the follow up, and be the point of contact for the press and the wider public.
An OGS functions as a tool for public accountability
An OGS commits the government to certain key reforms and creates a pressure for institutions to deliver. At the same time, a strategy that commits the government to concrete, ambitious but feasible outcomes can be a message to the citizens emphasising that this is a serious endeavour. The identification of milestones and indicators allows stakeholders to monitor the government’s implementation efforts and analyse their compliance with the strategy’s objective. Hence, the strategy and the commitments made in it are a tool for stakeholders to hold the government to account and avoid “open washing”. In addition, civil society can channel its demands through the strategy.
An OGS can give long-term sustainability to the open government agenda
The lack of a national coherent strategy can undermine the long-term sustainability of open government reforms and protects it from government instability. If designed for the long term, an OGS can give open government a non-political value and anchor the implementation of open government principles in internal action plans that can continue without high-level political support.
Source: OECD (2020[8]), Taking an integrated approach to the promotion of transparency, integrity, accountability and stakeholders’ participation: Towards an Open Government Strategy, Internal paper presented to the Working Party on Open Government, GOV/PGC/OG(2020)4/REV1.
The Open Government Strategy should establish a compelling vision and measurable objectives for Brazil’s open government agenda
An Open Government Strategy can be a tool to set a vision and objectives for a country’s open government agenda. A vision constitutes a clear statement of what the government and stakeholders aim to achieve through the implementation of open government reforms (OECD, 2020[8]). According to OECD research (Ibid.), the vision should be ambitious, bold and inspiring and realizable in a realistic time horizon at the same time.
The Strategy’s objectives then translate the vision into targets. According to the (OECD, 2020[8]) objectives should be measurable, achievable and relevant; evidence-based; ambitious without over-committing the government or creating unrealistic expectations; and budget responsible. Setting clear objectives is a key step to enable monitoring, evaluation and learning (see Chapter 4).
In addition, stakeholder participation in the definition of both the vision and the objectives is fundamental to ensure that they are widely shared and are clearly linked with broader government objectives and priorities. Brazil could, for example, consider co-creating the vision and the objectives in the framework of the recommended Open Government and Integrity Council (Chapter 4).
An Open Government Strategy constitutes an opportunity to broaden Brazil’s open government agenda and ensure that the protection of civic space becomes an integral part of it
An Open Government Strategy represents an opportunity to design an open government agenda that recognises the benefits of all of the open government principles. As discussed above, Brazil’s open government agenda, driven through the OGP-process, has historically put a focus on measures relating to transparency and open government data,.
The design of an Open Government Strategy provides a unique opportunity to create links between different ongoing and scattered open government policies and fill existing policy gaps. For example, as further discussed in Chapter 6 on Participation, Brazil currently lacks an overarching policy framework for citizen and stakeholder participation at the level of the federal government. The EGA could become this framework and include a dedicated section on citizen and stakeholder participation.
Moreover, as discussed in Chapter 5 on Civic Space, no policy documents of the current administration recognise the critical role played by civic space as an enabler of open government and public governance reforms at large. Brazil could therefore consider including a roadmap on the protection of civic space and the enabling environment for civil society in the Open Government Strategy.
An Open Government Strategy could mandate the adoption of Institutional Open Government Programmes
In order for the Strategy to be effectively implemented by the whole of government, the Government of Brazil could consider mandating the adoption of Open Government Programmes by all public institutions and agencies. These Institutional Open Government Programmes (Programas Institucionais de Governo Aberto, PIGA) could be adopted on an annual or biannual basis and could outline each institutions’ agenda to foster the open government principles and contribute to the shared objectives outlined in the EGA.
In order to reduce complexity, the Institutional Open Government Programmes could integrate the current institutional Open Data Plans, adding further institutional commitments relating to access to information, accountability, as well as citizen and stakeholder participation. The PIGAs would further need to be designed in close co-ordination with the institutional Integrity Programmes.
The PIGAs could for example be structured around three axes, transparency, citizen / stakeholder participation and accountability. The Open Government Directive of the United States of America provides an interesting example in this regard (Box 3.11).
Box 3.11. The Open Government Directive of the United States
United States
On 8 December 2009, as per the request of the President, the Office of Management and Budget (OMB) issued an Open Government Directive, which was informed by recommendations from the Federal Chief Technology Officer, who solicited public comments through the White House Open Government Initiative. The Directive is intended to direct executive departments and agencies to take specific actions to implement the principles of transparency, public participation and collaboration. In particular, the Directive requires executive departments and agencies to take the following steps:
Publish government information online: each agency shall create a dedicated open government website that will allow them to publish information online in open formats and interact with the public by receiving inputs to which they will respond on a regular basis. The respective annual Freedom of Information Act Report shall be published on the website of each agency.
Improve the quality of government information: agencies shall follow OMB guidance on information quality, and shall designate a high-level senior official who will be accountable for putting in place adequate systems and processes
Create and institutionalise a culture of open government: each agency shall develop and publish an Open Government Plan that will describe how it will implement the three principles of transparency, public participation and collaboration into its activities. The plans shall be updated every two years.
Create an enabling policy framework for open government: policies shall evolve to adapt to the use of emerging technologies which will open up new forms of communication between the government and the people.
Source: Government of the United States (2009[30]), “Open Government Directive”, https://obamawhitehouse.archives.gov/open/documents/open-government-directive (accessed 10 October 2018).
The design and implementation of an Open Government Strategy requires an adequate legislative basis
The adoption of an Open Government Strategy requires strong political commitment from the highest level. In order to provide the necessary legal and institutional backing, Brazil could consider reviewing the decree on the National Policy on Open Government (Government of Brazil, 2019[16]) to provide a basis for the integrated open government agenda. In addition to providing a mandate for the development and implementation of an Open Government Strategy, the revised Decree could include the following elements:
Article to introduce new definition of open government as suggested in this Chapter.
Article on the objectives of the open government agenda;
Article on the Open Government Strategy;
Article to mandate the creation of Institutional Open Government Plans, as operational tools to implement the National Policy on Open Government.
Article to enlarge the mandate of the Secretariat of Transparency and Prevention of Corruption and make the necessary changes to transform this entity into the Secretariat of Open Government and Integrity.
Article to establish the Open Government Co-ordinators as institutional points of contact and coordinators of the Institutional Open Government Plans.
Article to establish the Open Government and Integrity Council (see Chapter 4).
The Open Government Strategy could take an open state perspective
The development of an EGA can be a powerful way to create a shared commitment to the principles of open government across the entire Brazilian public sector, including in all branches of power and at all levels of government. This move towards what the OECD has termed an “open state” represents particular challenges in a federal country such as Brazil, as further explained in Chapter 2. The Brazilian federalism grants subnational units significant political and economic autonomy. Most fundamentally, an open state approach therefore needs to ensure to respect the division of powers between different levels of government.
While the limitations of interference between different levels of government and different branches of power are clear, both constitutionally and legally, there are no rules in Brazil that prohibit co-operation, collaboration or co-ordination between the various branches of power and the different levels of government. On the contrary, co-operation and co-ordination are the mechanisms to which a federal state can resort when it aims to promote national public policies across levels of government and branches of the state.
As a first step, Brazil could consider involving representatives from the Judiciary, the Legislature and from all levels of government in the process to create the vision and objectives of the EGA. In case Brazil wants to take a more ambitious open state approach, it could invite all branches of the state and all levels of government to include their own clusters of initiatives in the Strategy or even to include initiatives that would be co-implemented. Alternatively, Brazil could invite the Judiciary, the Legislature and all levels of government to formally adhere to the vision, principles and objectives that are outlined in the Open Government Strategy. The EGA could then include a template for those actors to develop their own strategic approaches to open government that contribute to the achievement of the overall vision.
In this regard, Brazil’s National Strategy for Combatting Corruption and Money Laundering (Box 3.12) provides an interesting example on how to create a whole-of-state approach to specific policy challenges.
Box 3.12. Brazil’s National Strategy for Combating Corruption and Money Laundering (ENCCLA)
The National Strategy for Combating Corruption and Money Laundering (ENCCLA), created in 2003, is the main platform for discussions on and the formulation of public policies and solutions aimed at combating the crimes of corruption and money laundering. It functions as network of articulation, bringing together a variety of agencies from the Executive, Legislative and Judiciary Powers at the federal and state levels and, in some cases, municipal, as well as the Public Ministry. The Department of Asset Recovery and International Legal Cooperation (DRCI), which is linked to the National Secretariat of Justice of the Ministry of Justice and Public Security, acts as executive secretary of ENCCLA.
The work is carried out in the so-called actions, which are prepared and agreed annually by the members of ENCCLA. For each of them, a working group is created, composed of several bodies and institutions, whose mandate is to reach one or more predefined products, through activities such as carrying out legal-normative studies and diagnostics and the composition of banks of data, preparing legislative proposals, verifying the state of the art of registration systems, investigating needs and promoting IT solutions, seeking efficiency in the generation of statistics and holding events aimed at the evolution of themes through debates. Working groups usually meet monthly.
Source: ENCCLA (n.d.[31]), Quem somos: Estratégia Nacional de Combate à Corrupção e à Lavagem de Dinheiro, http://enccla.camara.leg.br/quem-somos
Strengthening the institutional framework for open government in Brazil
Given the breadth of strategies and initiatives that relate to the promotion of openness, responsibilities and mandates for designing, co-ordinating and implementing different open government policies are usually spread across a number of public institutions in OECD Member and Partner Countries (OECD, forthcoming). For example, the institutional mandates for co-ordinating the OGP process and the open data file are often situated in a country’s centre of government while the oversight of a country’s access to information agenda is sometimes conducted by an autonomous public agency. At the same time, the citizen / stakeholder participation file is often managed in a decentralised way, and responsibilities for accountability mechanisms are usually shared between various institutions.
Following a brief introduction of the main institutions that form part of the open government ecosystem of Brazil, this section focuses on analysing the mandate and responsibilities of the Secretariat for Transparency and Prevention of Corruption (STPC) in the Office of the Comptroller General of the Union (CGU)6. The section finds that the STPC would be in an ideal position to become Brazil’s dedicated Open Government Office, given its responsibilities for the co-ordination of the OGP process, the open data agenda, the public sector integrity agenda and the wider transparency agenda. The section concludes by recommending ways to further empower the STPC, including by giving it a clear mandate to co-ordinate and steer an integrated open government agenda, as well as increased financial and human resources.
The federal open government ecosystem of Brazil includes a wide range of public institutions
In all OECD Member and Partner countries, the design and co-ordination of open government policies across government involves a wide variety of public institutions. The following institutions can be considered key actors in the wider open government ecosystem at the level of the federal government in Brazil (see also Table 3.6).
The Federal Comptroller General of the Union (Controladoria Geral du União, CGU) is responsible for assisting the President on matters related to the defense of public assets and to the increase of transparency, notably through activities such as internal control, public audit, and the prevention of and fight against corruption. The CGU is also the government institution in charge of co-ordinating Brazil’s OGP process (see below).
The General Secretariat of the Presidency of the Republic (Secretaria Geral da Presidência da República, SGPR) is a body that has the status of a ministry. It directly supports the Presidency of the Republic. The SGPR is led by the Chief Minister of State of the General Secretariat of the Presidency. At the time of writing, the SGPR is primarily responsible for formulating and defining the wider government strategy, and spearheading state modernization.
The Secretariat of Government of the Presidency of the Republic (Secretaria de Governo da Presidência da República, SEGOV) is another body with the status of a ministry that is linked to the Presidency of the Republic. The SEGOV assists the President in fostering the government’s relations with political actors and civil society at the national, subnational and international level. The SEGOV is also in charge of the government’s internal and external communication. As further discussed in Chapter 6 on Participation, within the SEGOV, the Special Secretariat for Social Articulation (Secretaria Especial de Articulação Social) plays a key role in fostering participatory practices across government.
The Casa Civil (Casa Civil da Presidência da República) is a Federal entity with Ministerial ranks and part of the Centre of Government. The Minister of Casa Civil functions as the chief of staff of the Presidency of the Republic. Casa Civil is in charge of the administrative function of the Presidency as well as of the articulation with the Legislative Power and the Subnational authorities. In relation to the open government agenda, and as further discussed in Chapter 6 on Participation, the Casa Civil has some institutional responsibilities regarding citizen and stakeholder participation at the Federal level. Casa Civil is responsible for public consultations and Decree 1959 gave it the mandate to oversee Federal public authorities’ participation in collegial bodies, such as the Councils.
The Ministry of Economy (Ministerio da Economia) was created in 2019 under the current administration as the result of a merger of multiple Ministries (Finance; Planning; and Industry, Trade and Services). Although the Ministry is not part of the Presidency, it performs important centre of government duties relating to strategic planning, monitoring and evaluating, and elaborating the budget. As regards open government, the Ministry has relevant (co-)responsibilities over open budgeting and digital government policies. The National School of Public Administration (Escola Nacional de Administração Pública, Enap) is subordinate to the Ministry of Economy and is an important actor in the promotion of open government literacy in Brazil (see also Chapter 4).
The Court of Accounts of the Union (Tribunal de Contas da União, TCU) is the external control body of the federal government that assists the National Congress in the mission of monitoring the country's budget and its financial execution. The TCU is further mandated to contribute to the improvement of public governance for the benefit of the whole of society.
The Offices of the Public Defender (Defensorias Públicas) which exist both at federal and state levels provide legal advice and defend citizens’ interests. They are foreseen in the Constitution as enabling access to justice to the population at large (Government of Brazil, 1988). In some states, Public Defenders’ Offices play a fundamental role in ensuring accountability for cases of police violence, domestic violence, violence against indigenous people, and others.
The Ministry of Women, Family and Human Rights (Ministério da Mulher, da Família e dos Direitos Humanos) also plays a role in the protection of human rights and promotion of policies for the inclusion of Afro-Brazilians, women, minorities and disadvantaged groups. It is home to the National Human Rights Hearing Office (Ouvidoria Nacional de Direitos Humanos), which manages the main channels for citizens to report violations (see also Chapter 5).
In addition to these institutions from the federal executive branch, the following entities from the other branches of the state can be considered part of the wider open state ecosystem in Brazil:
The Public Ministry (Ministério Público, MP) which is headed by the General Prosecutor of the Republic (Procurador-Geral da República) is responsible for defending the legal order, the democratic regime and individual and collective rights. It plays a key role in the protection and promotion of civic space (see Chapter 5) and in fostering accountability (see Chapter 8), as it is mandated by the Constitution to “oversee the effective respect by public powers and services of the rights secured in the Constitution, promoting the necessary measures to guarantee them", including to “exercise external control over police activity” (article 129 II) (Government of Brazil, 1988). At federal level, the Federal Prosecutor’s Office for Citizens’ Rights (Procuradoria Federal dos Direitos do Cidadão), which is part of the Public Ministry, promotes citizenry and human dignity, and protects individual and collective rights, such as freedom, equality, social assistance, access to justice, the right to information, and non-discrimination, among others.
The Transparency Secretariat of the Senate (Secretaria de Transparência do Senado Federal) is responsible for ensuring access to data, information and documents of collective or general interest that are produced or held in custody by the Federal Senate. It further promotes measures aimed at strengthen the transparency of public information of the Federal Senate pertaining to legislative, parliamentary or administrative activities, as well as using available means to disseminate this information. In addition, the Federal Senate has a Transparency and Social Control Council (Conselho de Transparência e Controle Social do Senado Federal) which is responsible for debating and proposing actions that disseminate access to public information within the institution.
The Transparency Secretariat of the Chamber of Deputies (Secretaria de Transparência da Câmara dos Deputados) supervises compliance with the Access to Information Law (Law 12,527 from 2011) and promotes a culture of transparency in the Chamber of Deputies. It further carries out research on the use of information and communication technology in the development of transparency, access to information and social control in the public administration.
The fragmentation of responsibilities over open government policies is common across the OECD and it creates a strong need for effective co-ordination between them, as further discussed in Chapter 4. As further discussed below and as visible from Table 3.6, the fact that the CGU is in charge of steering parts of the agenda to foster all four open government principles represents a unique opportunity.
Table 3.6. Overview of key institutional responsibilities for open government policies in Brazil
Source: Author’s own elaboration based on Government of Brazil (2021[12]), Background Report prepared for the OECD Open Government Review of Brazil (unpublished working paper).
The CGU is at the heart of Brazil’s open government ecosystem
In Brazil, the most important co-ordinating institution for open government reforms at the level of the federal government is the Office of the Federal Comptroller General of the Union (Controladoria-Geral da União, CGU). The CGU was created by then President Fernando Cardoso in 2001, as the Internal Affairs Department of the Union. In 2003, its name was changed to Comptroller General of the Union (Controladoria Geral du União) through Law 10.683. In 2006, Decree 5.683 changed the structure of the CGU, and created the Secretariat of Prevention of Corruption and Strategic Information (SPCI), responsible not only to detect cases of corruption but also to develop mechanisms preventing it. In 2013, Decree 8.109 introduced further institutional changes and the SPCI became the Secretariat for Transparency and Prevention of Corruption (STPC). In 2016, with the publication of Law 13.341 the CGU was renamed Ministry of Transparency, Oversight and the Comptroller General of the Union. Finally, in 2019, the CGU received the open government data portfolio from the then Ministry of Planning and Provisional Measure 870 once again renamed it as Comptroller General of the Union (CGU). Despite the fact that it is currently not branded as a ministry, the CGU has ministerial status and the head of the institution has ministerial rank.
In its current setup, the CGU is responsible for assisting the President of the Republic on matters related to the defence of public assets and the increase in transparency within the scope of the federal executive branch. Its broad range of responsibilities and competences (Box 3.13) includes the roles of co-ordinator of the OGP process, national open data co-ordinator, access to information agency, ombudsman, and anti-corruption agency. Overall, the CGU is central for three of the four open government principles, namely transparency, integrity and accountability.
In regards to its Ombudsman functions, the CGU has under its mandate the General Ouvidoria of the Union (Ouvidoria-Geral da União) – sometimes also called Federal Ombudsman Office. This office is the central entity within the Ouvidoria System of the federal Executive power to ensure its performance in regards to the handling of complaints and feedback and requests for administrative simplification. In this regard, it is not only responsible for establishing appropriate procedures to guarantee service users’ rights, but also for promoting capacity-building as well as gathering and monitoring citizens’ inputs received by the sectorial Ouvidorias. It coordinates the National Network of Ouvidorias (Decree 9.492 and Decree 9.723). In its role, the General Ouvidoria of the Union is essential for protecting the rights of public service users at federal level and for streamlining the work of Ouvidorias across the county (see Chapter 8 on Accountability for more information on the Ouvidorias).
While the co-ordination of the citizen participation file is formally under the Secretariat of Government and its implementation is decentralized, according to information collected by the OECD, the CGU has also started taking over an increasing number of responsibilities relating to participatory practices (e.g. it is responsible for public participation in accountability mechanisms such as the Fala.br platform or the User Councils) (see Table 3.6 and find a discussion on SEGOV’s responsibilities in Chapter 6).
Box 3.13. The responsibilities of the Comptroller General of the Union (CGU)
The institutional mandate of the CGU (decree 9.681)
According to Decree No. 9.681, the CGU is the central body of the Internal Control System, the Correction System and the Ombudsman System of the Federal Executive Branch. It has the following matters as its area of competence:
Adopting the measures necessary for the defence of public assets, internal control, public audit, correction, preventing and combating corruption, ombudsman activities and increasing the transparency and integrity of management within the Executive Branch federal; (Wording given by Decree nº 9.694, of 2019)
Preliminary decision on complaints received, indicating the appropriate measures;
Establishing administrative procedures and processes, constituting commissions, and request for the establishment of those unjustifiably delayed by the appropriate authority;
Monitoring administrative procedures and processes in progress in federal executive branch bodies or entities;
Carrying out inspections and recalling procedures and processes in progress in the federal executive branch, to examine their regularity and proposing measures or correcting failures;
Effecting or promoting the nullity of an administrative procedure or process, in progress or already judged by any authority of the federal Executive Power, and, if applicable, the immediate and regular investigation of the facts involved in the case records and the declared nullity;
Requisition of administrative procedures and processes judged less than five years ago or already filed, counted from the date of the trial or filing, within the scope of the federal Executive Branch, to review them and, if necessary, issue a new decision;
Requisition of data, information and documents related to administrative procedures and processes already filed by the authority of the federal Executive Branch;
Requisition of information and documents from agencies or entities of the Federal Executive Branch necessary for their work or activities;
Requisition from public executive bodies or entities of public servants or employees necessary for the constitution of commissions, including those which are the object of the provision in item III, and of any public servant or employee indispensable for the instruction of the process or procedure;
Proposing legislative or administrative measures and suggesting necessary actions to avoid the repetition of irregularities found;
Receiving grievances from users of public services, in general, and verification of the negligent exercise of position, employment or function in the federal Executive Branch, when there is no legal provision that attributes specific powers to other bodies or entities;
Technical supervision and normative guidance, as the central organ of the internal control systems, correction and ombudsman of the organs of the direct federal public administration, of the autarchies, of public foundations, of public companies, of mixed capital companies and of other entities controlled directly or indirectly by the Union;
Executing controllership activities within the scope of the federal executive branch.
Further decrees detailing the CGU’s responsibilities for open government and its principles
Decree No. 7,724 / 2012 - regulates Law No. 12,527 / 2011 on access to information. According to article 68 of the Decree, the CGU is responsible for monitoring the Access to Information Law within the scope of the federal Executive Branch.
Decree nº 8.777 / 2016 - institutes the Federal Executive Branch's Open Data Policy and establishes, in its article 10, the CGU as responsible for its monitoring.
Decree nº 9.903 / 2019 - amends Decree nº 8.777 / 2016, defining, in article 5, CGU as the coordinator of the management of the Open Data Policy of the federal Executive Branch.
Decree No. 10,160 / 2019 - institutes the National Open Government Policy and establishes CGU as the coordinating portfolio of the Interministerial Committee on Open Government (CIGA).
Source: Government of Brazil (2019[32]), Decreto Nº 9.681, de 3 de Janeiro de 2019, http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2019/decreto/D9681.htm
The Secretariat for Transparency and Prevention of Corruption of the CGU designs and co-ordinates the implementation of many relevant open government policies
Within the CGU, the Secretariat for Transparency and Prevention of Corruption (Secretaria de Transparência e Prevenção da Corrupção, STPC) is the key Secretariat in charge of designing and co-ordinating a number of relevant open government policies (Box 3.14). It is comprised of three Directorates, namely the Directorate for Transparency and Social Control; the Directorate for Promoting Integrity; and the Directorate for Preventing Corruption.
The Directorate for Transparency and Social Control (Diretoria de Transparência e Controle Social, DTC) has attributions relating to the design and co-ordination of the open data policy, the transparency and access to information policy, social control, budget transparency, as well as public sector integrity in the States, Municipalities and in the Federal District (Box 3.14).
The DTC is also in charge of acting as the government’s co-ordinator and point of contact for the OGP process. The DTC’s responsibilities relating to Brazil’s OGP process are in line with those of OGP co-ordination offices in OECD Member Countries (Figure 3.6). Among the 24 OECD Member Countries and Brazil that provided answers to the 2020 OECD Survey on Open Government (OECD, 2021[6]), coordinating the co-creation process (100%) and its implementation (96.6%) is as much part of theses offices’ portfolio as monitoring the implementation (93.1%), communicating about the OGP process (96.6%) or raising awareness both internally (96.6%) and externally (100%).
Figure 3.6. Responsibilities of OGP offices in OECD Member Countries and Brazil
Note: Values in percent. N=29, multiple selections possible.
Source: OECD (2021[4]), 2020 OECD Survey on Open Government.
The DTC’s mandate explicitly mentions that it is the Directorate’s responsibility to “co-ordinate open government policies, in accordance with current legislation” and “promote an open government culture” (Box 3.14). While the institutional mandate seems to establish the STPC (and the DTC) as the co-ordinator of the government of Brazil’s wider open government agenda, interviews conducted during the fact-finding missions revealed that this co-ordination role is mainly limited to the OGP process and to making and co-ordinating policy on those files that are under direct control of the Secretariat (e.g. open government data, access to information). In its current role, the STPC does not function as a dedicated Open Government Office as it does not have the mandate to co-ordinate other policies that contribute to open government (e.g. citizen participation) and that are steered out of other government ministries and agencies.
Box 3.14. The responsibilities of the Secretariat for Transparency and Prevention of Corruption (STPC) and of the Directorate for Transparency and Social Control of the STPC of the CGU
Secretariat for Transparency and Prevention of Corruption (STPC)
I - Formulate, coordinate, promote and support the implementation of plans, programs, projects and standards operation procedures (SOPs) aimed to prevent corruption, promote and strengthen transparency, access public information, open source government data, ethical conduct of public servants, social control, and the principles of open government in the federal public administration and, as well, integrity and ethical conduct between the private sector and its relationship with the public sector.
II - Promote, coordinate and support studies/researches, meant to improve and disseminate knowledge in the areas to prevent corruption, promote transparency, access to information, ethical conduct, integrity and nonetheless share the main principles of open government and social control.
III - Participate in academic forums, for national and international agencies related to fight and prevent corruption, promote transparency, access to information, ethical conduct, integrity and the principles of open government and social control, as well as to establish technical discussions regarding the referred issues in such instances.
IV - Promote the implementation, enforce the execution, carefully coordinate and monitor Federal Law No. 12,527, of 2011, regarding the Open Data Policy of the federal Executive Branch, as per Decree No. 8,777, of May 11, 2016.
V - Support, within the scope of its powers, the negotiation commissions for leniency agreements.
VI - Propose developing measures to identify and prevent situations that constitute conflict of interest, as per describer by Law No. 12,813, of May 16, 2013.
VII – Act as the Executive Secretary role of the Council for Public Transparency and Fight against Corruption - CTPCC.
Directorate for Transparency and Social Control of the STPC
I - promote articulation with federal agencies and entities with a view to the elaboration and implementation of policies, practices and actions of transparency and open government;
II - promote the implementation, execution, coordination and monitoring of Law No. 12,527, of 2011, and the Open Data Policy of the federal Executive Branch, pursuant to Decree No. 8,777, of 2016;
III - support and guide States, Municipalities and the Federal District in the implementation of policies and programs for the prevention of corruption, the promotion of transparency, access to information, ethical conduct, integrity, the principles of open government and social control;
IV - propose and coordinate actions that encourage citizens to participate in social control;
V - supervise the management of the specific electronic system for registering requests for access to information established by Decree No. 7,724, of 2012;
VI - supervise the management of the Federal Government's Transparency Portal;
VII - promote the valorisation of ethical behaviour and the exercise of citizenship, with children, youth and adults;
VIII - guide and exercise technical supervision of the activities of the teams designated in the CGU's regional units to carry out the activities related to the DTC's competence actions;
IX - coordinate open government policies, in accordance with current legislation;
X - promote an open government culture based on sustainable and innovative policies, based on transparency, participation and responsiveness of public bodies and entities;
XI - promote actions that generate a response from the Federal Government bodies and entities to the participation of society resulting from actions of transparency, access to information, social control, open data and open government; and
XII - approve, revise and revoke understandings on the application of Law No. 12,527, of 2011, due to the exercise of the powers provided for in items I, II, III and V of this article
Source: Government of Brazil (2019[33]), Ordinance No. 3553/2019, https://www.in.gov.br/web/dou/-/portaria-n-3.553-de-12-de-novembro-de-2019-227654932
The Secretariat for Transparency and Prevention of Corruption of the CGU could be transformed into the Secretariat for Open Government and Prevention of Corruption
In case Brazil decides to move towards a fully integrated open government agenda (e.g. by adopting an Open Government Strategy), there will be a need to upgrade and review the current institutional settings and arrangements in order to ensure that all relevant public institutions understand their roles and responsibilities as key contributors to the open government ecosystem. Ultimately, the pursuit of an integrated open government agenda requires the identification and empowerment of a dedicated Open Government Office that has a mandate and the capacity to steer and co-ordinate the national open government agenda, including an eventual Open Government Strategy. Strong institutional leadership can ensure co-ordination between the different agendas that are linked to the promotion of openness, and that all institutions work towards a shared vision, synergies are exploited, and good practices are shared.
The Secretariat for Transparency and Prevention of Corruption of the CGU would be in an ideal position to become the country’s dedicated Open Government Office and, as such, the co-ordinator of an integrated open government agenda. As discussed above, it is already in charge of making and co-ordinating the implementation of many of the most relevant open government policies and it has the formal responsibility to co-ordinate the OGP process, providing it with leverage to involve other public institutions.
To formally establish the STPC as the Open Government Office, Brazil could consider transforming it into the Secretariat for Open Government and Preventing Corruption (Secretaria de Governo Aberto e Prevenção da Corrupção, SGA). The STPC’s current Directorate for Transparency and Social Control could then become the new Directorate for Open Government (Diretoria de Governo Aberto, DGA). This change of name may require a review of the National Open Government Policy (Decree 10.160 from 2019) or the adoption of a new decree on the integrated open government agenda, as discussed above.
The SGA’s and DGA’s institutional structures could be aligned with the new integrated open government approach. Under the leadership of a new Secretary for Open Government and Preventing Corruption (Secretario de Governo Aberto e Prevenção da Corrupção) and the new Director for Open Government (Diretor de Governo Aberto), the DGA could consist of specific teams focusing on making and co-ordinating policies on access to information & open data; social participation (in close co-ordination with SEGOV); accountability and social control; as well as co-ordinating the OGP process (Figure 3.7).
In summary, the new DGA could have the following key responsibilities:
Co-ordinate the design, implementation, monitoring and evaluation of the recommended Federal Open Government Strategy (see above);
Co-ordinate Brazil’s OGP process, including the biannual Action Plans;
Act as Secretariat to the recommended Open Government and Integrity Council (see Chapter 4); and
Support the design and implementation of policies on open government data; access to public information; social participation (in close collaboration with SEGOV); accountability and social control; and ethics and integrity (in close collaboration with other Directorates of the new SGA) across the entire federal government.
Foster the creation of an open government culture in the Brazilian public sector (in close collaboration with the National School of Public Administration).
Providing the SGA and the DGA with these responsibilities and establishing it formally as the co-ordinator of an integrated open government agenda would not mean that it would be in charge of designing and implementing all relevant open government policies. Rather, it would mean that the SGA and the DGA would have a formal mandate to create synergies and foster policy coherence across government. In practice, this means that the SGA would be charged to co-ordinate different open government policies, such as the implementation of participatory instruments across the federal government (which is the competence of the Special Secretariat of Social Articulation of the SEGOV – see Chapter 6 on Participation), with the competent ministries and agencies.
Figure 3.7. Proposed structure of the Secretariat for Open Government and Integrity of the CGU
Source: Author’s own elaboration.
Alternatively, in case Brazil decides to pursue an integrated open government agenda while keeping the institutional responsibilities as they are, it could consider creating a National Open Government Co-ordination Office (Oficina Nacional de Coordenação de Governo Aberto) as part of the centre of government. The National Open Government Co-ordination Office would not have substantive responsibilities relating to the design and implementation of open government policies. Rather, it would have the formal responsibility to co-ordinate the implementation of a possible Federal Open Government Strategy across the whole public sector and of ensuring effective enforcement and accountability (e.g. regular progress reports from public institutions could be sent to it).
The GoB could consider creating Institutional Open Government Co-ordinators in federal public institutions
The move towards an integrated open government agenda and the design of the recommended Open Government Strategy (see above) also requires reviewing institutional responsibilities across the wider government. For the moment, according to results of the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions (OECD, 2021[6]) no federal public institutions in Brazil has an office / person that is specifically dedicated to the co-ordination of the institutions’ open government agenda.
Nevertheless, research also show that most public institutions have multiple offices / people that are in charge of key open government policies. For example, more than 90% of the public institutions that answered the Survey had a person / office in charge of open government data and 50% had an office / person in charge of co-ordinating their institution’s participatory initiatives. In addition, more than 90% of public institutions had somebody responsible for integrity policies (as mandated by the Governance Policy, see above) and 95% have an office / person in charge of citizens’ complaints and accountability mechanisms (this role is typically taken over by the ouvidorias). In addition, the CGU also created OGP contact points in different public entities as part of the action plan processes. However, these contact points only oversee the implementation of the commitment(s) made by their entities in the OGP action plan and are not tasked with promoting and co-ordinating other open government policies within their institutions.
Brazil could consider creating dedicated Institutional Open Government Co-ordinators (Coordenadores Institucionais de Governo Aberto) in all public institutions, as a means of fostering co-ordination and translating high-level objectives into institutional realities. This becomes even more relevant, in case Brazil decides to design the recommended Open Government Strategy (and mandate the adoption of Institutional Open Government Plans, see above). Rather than taking over the substantive responsibilities of existing offices in each institution (i.e. the Open Government Data Office of the institution would continue implementing the institutional open data agenda), the Institutional Open Government Co-ordinator would ensure policy alignment and coherence across the house (e.g. ensuring that the open data and the wider transparency agendas of their institutions are linked). While public institutions in Brazil should be free to decide where to situate their dedicated institutional open government person / office, OECD experience shows that this person / office is best situated close to the institutional leadership (e.g. General Secretariat of a Ministry).
In sum, the Institutional Open Government Co-ordinator could have the following responsibilities:
Co-ordinate the design, implementation, monitoring and evaluation of the recommended Institutional Open Government Plan (see above);
Act as direct counterpart to the Secretariat for Open Government and Preventing Corruption in the CGU (see above);
Ensure that all institutional processes that relate to openness (e.g. open budgeting; open contracting) share common objectives and are aligned with the recommended Open Government Strategy (see above);
Participate in the Open Government Community of Practice to share good practices and experiences (see Chapter 5);
Disseminate a culture of open government across the public institutions;
Ensure the implementation of laws and policies relevant to open government principles,
Provide individual and personalised support to the public officials of their institution.
Costa Rica’s Enlaces Interinstitucionales and Canada’s Departmental Open Government Co-ordinators provide interesting examples of existing Open Government Contact Points (Box 3.15).
Box 3.15. Costa Rica’s Enlaces Interinstitucionales and Canada’s Departmental Open Government Co-ordinators
Canada
In Canada, every governmental department has identified an open government co-ordinator. These individuals function as the entry point into the department for the Treasury Board Secretariat (TBS) – the main co-ordinating entity responsible for setting government-wide direction on open government – for all matters related to open government.
Open government co-ordinators:
facilitate open government activities throughout their organisation
assist content owners within the organisation with the process to release data (e.g. identification, preparation, approval mechanisms and entry into the Open Government Registry)
provide recommendations to the senior official responsible for approving the data release
provide assistance to clients within the organisation requesting information via open.canada.ca
provide relevant training in the organisation, where possible
participate in open government working groups, led by the Treasury Board Secretariat, where they share best practices and challenges related to open government.
Open government co-ordinators are typically appointed at the director level and below, and convene on a monthly basis through working group meetings co-ordinated by the Treasury Board Secretariat. TBS is also planning to create an online “co-ordinators corner” where co-ordinators can more easily interact if they wish.
Costa Rica
The Open Government Contact Points (Enlaces interinstitucionales) established to facilitate the design and implementation of Costa Rica’s second OGP action plan represent an important tool to ensure inter-institutional coordination. The initiative to create the Open Government Contact Points was launched by the centre of government in Costa Rica, namely by the Deputy Ministry of the Presidency of the Republic (the main office responsible for open government initiatives in the country). Contact points were established in most central government ministries, decentralised institutions, some municipalities, the Ombudsman, and the Judiciary.
Ultimately, the Costa Rican government aims to create at least one Contact Point in each institution to help implement the wider open government agenda. The Contact Points meet regularly and benefit from capacity-building. While they do not formally report to the Deputy Ministry of the Presidency, the Contact Points voluntarily collaborate with this office and have the potential to provide the CoG with an effective co-ordination tool, both horizontally and vertically.
Source: OECD (2016[3]), Open Government: The Global Context and the Way Forward, OECD Publishing, Paris, http://dx.doi.org/10.1787/9789264268104-en
Increasing the human and financial resources of the CGU’s open government team
Over time, the CGU has become an effective and efficient co-ordinator of open government reforms, largely due to a highly skilled (and convinced) core team working on co-ordinating the OGP action and the different open government policies under its purview. Interviews conducted during the OECD’s peer-driven fact-finding mission and the results of the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions (OECD, 2021[6])show that most public institutions recognise the CGU’s leadership on open government policies and have a general willingness to co-operate with it (Figure 3.8). Nevertheless, almost 80% of public institutions also saw a need to improve the collaboration between the CGU and their institutions. For example, public institutions suggest that the CGU could foster the exchange of good practices and experiences; offer more trainings and courses on specific open government policies for public officials; offer rewards / prices for good practices in the field of open government; and promote a unified definition of the concept of open government across the whole of government.
Figure 3.8. Collaboration of Federal public institutions with the CGU
Note: N=35
Source: OECD (2021[6]), OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions
Ultimately, the implementation of an integrated open government agenda will require a fundamental transformation of the role of the CGU. More than ever, the CGU will need to take over the role of whole of government co-ordinator (rather than comptroller). Increasingly, it will also need to move towards becoming a centre for expertise, providing advice and guidance to public institutions across government and offering trainings. The increased levels of responsibilities should be coupled with increased human and financial resources for the recommended Secretariat for Open Government and Preventing Corruption and the recommended Directorate for Open Government.
Conclusion and Recommendations
A joint conclusion and recommendations for chapters 3 and 4 can be found at the end of Chapter 4.
References
[5] CGU (2020), What is Open Government, https://www.gov.br/cgu/pt-br/governo-aberto/governo-aberto-no-brasil/o-que-e-governo-aberto.
[21] CGU (2018), Brazil’s 4th National Action Plan, https://www.opengovpartnership.org/documents/brazil-national-action-plan-2018-2021/.
[25] CGU (n.d.), Integridade Pública, https://www.gov.br/cgu/pt-br/centrais-de-conteudo/campanhas/integridade-publica/integridade-publica.
[31] ENCCLA (n.d.), Quem somos: Estratégia Nacional de Combate à Corrupção e à Lavagem de Dinheiro, http://enccla.camara.leg.br/quem-somos.
[12] Government of Brazil (2021), Background Report prepared for the OECD Open Government Review of Brazil.
[26] Government of Brazil (2020), DECRETO Nº 10.332, DE 28 DE ABRIL DE 2020: Institui a Estratégia de Governo Digital para o período de 2020 a 2022, no âmbito dos órgãos e das entidades da administração pública federal direta, autárquica e fundacional e dá outras providências., http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/decreto/D10332.htm.
[15] Government of Brazil (2020), DECRETO Nº 10.531, DE 26 DE OUTUBRO DE 2020: Institui a Estratégica Federal de Desenvolvimento papa o Brasil no período de 2020 a 2031, http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/decreto/D10531.htm.
[14] Government of Brazil (2020), Manual Técnico do Plano Plurianual do Governo Federal - PPA 2020-2023, https://www.gov.br/economia/pt-br/centrais-de-conteudo/publicacoes/guias-e-manuais/manual_tecnico_ppa20202023.pdf/view.
[29] Government of Brazil (2020), Normative instruction N°20, https://www.in.gov.br/en/web/dou/-/instrucao-normativa-n-24-de-18-de-marco-de-2020-251068261.
[16] Government of Brazil (2019), DECRETO Nº 10.160, DE 9 DE DEZEMBRO DE 2019: Institui a Política Nacional de Governo Aberto e o Comitê Interministerial de Governo Aberto, http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2019/decreto/D10160.htm.
[32] Government of Brazil (2019), DECRETO Nº 9.681, DE 3 DE JANEIRO DE 2019: Aprova a Estrutura Regimental e o Quadro Demonstrativo dos Cargos em Comissão e das Funções de Confiança da Controladoria-Geral da União , remaneja cargos em comissão e funções de confiança e substitui cargos em, http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2019/decreto/D9681.htm.
[28] Government of Brazil (2019), DECRETO Nº 9.903, DE 8 DE JULHO DE 2019: Altera o Decreto nº 8.777, de 11 de maio de 2016, que institui a Política de Dados Abertos do Poder Executivo federal, para dispor sobre a gestão e os direitos de uso de dados abertos, http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2019/decreto/D9903.htm.
[33] Government of Brazil (2019), PORTARIA Nº 3.553, DE 12 DE NOVEMBRO DE 2019: Aprova o Regimento Interno e o Quadro Demonstrativo de Cargos em Comissão e das Funções de Confiança da Controladoria-Geral da União - CGU e dá outras providências, https://www.in.gov.br/web/dou/-/portaria-n-3.553-de-12-de-novembro-de-2019-227654932.
[24] Government of Brazil (2017), DECRETO Nº 9.203, DE 22 DE NOVEMBRO DE 2017: Dispõe sobre a política de governança da administração pública federal direta, autárquica e fundacional., http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/decreto/d9203.htm.
[27] Government of Brazil (2016), DECRETO Nº 8.777, DE 11 DE MAIO DE 2016: Institui a Política de Dados Abertos do Poder Executivo federal, http://www.planalto.gov.br/ccivil_03/_ato2015-2018/2016/decreto/d8777.htm.
[11] Government of Sweden (n.d.), Openness shapes Swedish society, https://sweden.se/society/openness-shapes-swedish-society (accessed on 17 December 2018).
[30] Government of the United States (2009), Open Government Directive, https://obamawhitehouse.archives.gov/open/documents/open-government-directive (accessed on 10 October 2018).
[22] Ministry of Finance of Finland (2020), Open Government Strategy 2030, https://avoinhallinto.fi/assets/files/2021/03/Open_Government_Strategy2030.pdf.
[4] OECD (2021), 2020 OECD Survey on Open Government.
[6] OECD (2021), OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions.
[8] OECD (2020), Taking an integrated approach to the promotion of transparency, integrity, accountability and stakeholders’ participation: Towards an Open Government Strategy, Internal paper presented to the Working Party on Open Government, GOV/PGC/OG(2020)4/REV1.
[2] OECD (2019), Open Government in Argentina, OECD Public Governance Reviews, OECD Publishing, Paris, https://doi.org/10.1787/1988ccef-en.
[1] OECD (2017), Recommendation of the Council on Open Government, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0438.
[3] OECD (2016), Open Government: The Global Context and the Way Forward, OECD Publishing, Paris, https://doi.org/10.1787/9789264268104-en.
[13] OECD (forthcoming), Centre of Government Review of Brazil.
[7] OECD (forthcoming), Open Government: Global Report.
[19] OGP (2020), Brazil End-of-Term Report 2016-2018, https://www.opengovpartnership.org/documents/brazil-end-of-term-report-2016-2018/.
[18] OGP (2017), Brazil End-of-Term Report 2013-2016, https://www.opengovpartnership.org/documents/brazil-end-of-term-report-2013-2016/.
[17] OGP (2014), Brazil Progress Report 2011-2013, https://www.opengovpartnership.org/documents/brazil-relatorio-do-progresso-2011-2013/.
[20] OGP (n.d.), OGP Commitment Database, https://www.opengovpartnership.org/open-data/#comms_db.
[9] Politize (2018), A Constituição Federal de 1988, https://www.politize.com.br/constituicao-de-1988/ (accessed on 22 July 2021).
[23] Presidency of the Government of Tunisia (2021), Action Plan for the Open Government Partnership 2021-2021, https://www.opengovpartnership.org/wp-content/uploads/2021/08/Tunisia_Action-Plan_2021-2023_EN.pdf.
[10] Thurston, A. (2013), Openness and information integrity in Norway, http://www.opengovpartnership.org/blog/dr-anne-thurston/2013/10/15/openness-andinformation-integrity-norway.
Notes
← 1. The OECD Recommendation of the Council on Open Government (OECD, 2017) defines open government as “a culture of governance that promotes the principles of transparency, integrity, accountability and stakeholder participation in support of democracy and inclusive growth”.
← 2. Public sector integrity policies are closely related to open government policies, but will not be further analysed in this review, as they are the subject to a specific OECD Integrity Review of Brazil (forthcoming).
← 3. Provision 2 stipulates that countries should “ensure the existence and implementation of the necessary open government legal and regulatory framework (…)” (see Box 3.2).
← 4. The 1988 Constitution is Brazil’s seventh Constitution, with prior versions from 1824, 1891, 1934, 1937, 1946 and 1967.
← 5. The first generation of open government initiatives in most countries focused mainly on improving the functioning of government as well as its internal methodology and processes (e.g. access to information, innovation in public sector, open processes, accountability mechanisms, procurement, etc.). The latest generation of open government initiatives focuses on the ways in which the government designs policies and delivers services, and on using open government approaches and applying open government tools in different policy areas (e.g. gender, environment, health, education, urban development, etc.).
← 6. Discussions on the CGU’s role relating to specific parts of the open government agenda (e.g. the implementation of the access to information law), as well as of the roles of other public institutions relating to the implementation of the principles can be found in the dedicated implementation Chapters of this Review (see Chapters 5, 6 and 7).