This chapter examines opportunities and challenges in the implementation of the open government principle of transparency in Brazil. It analyses the country's legal framework for access to information (ATI), including the mechanisms and tools for proactive and reactive disclosure and provides an assessment of the institutional framework for ATI. Finally, it assesses the role of the broader transparency agenda to enable stakeholder participation in policy design and decision-making. Throughout, the chapter provides recommendations and reflects on good practices from OECD and key partner countries to help the government of Brazil reinforce a culture of transparency.
Open Government Review of Brazil
Towards an Integrated Open Government Agenda
OECD Public Governance Reviews
7. Transparency for Open Government in Brazil
Abstract
Introduction
Transparency often represents both the underlying motivation for - and the intended outcome of - open government reforms, strategies, and initiatives. For the purpose of this chapter, government transparency refers to stakeholder access to, and use of, public information and data concerning the entire public decision-making process, including policies, initiatives, salaries, meeting agendas and minutes, budget allocations and spending, etc. Information and data disclosed should serve a purpose and respond to citizen's needs (OECD, 2021[1]). Concretely, promoting transparency enables citizens to exercise their voice and contribute to setting priorities, monitoring government actions and having an informed dialogue about – and participating in – decisions that affect their lives. In addition, transparency is crucial for good governance and contributes to the fight against corruption, clientelism and policy capture, all of which are imperative for restoring citizens’ trust in government.
Transparency is underpinned by the right to access to information (ATI), which is understood as the ability for an individual to seek, receive, impart, and use information effectively (UNESCO[2]). This right is materialized through ATI laws, which are considered the first-generation of transparency policies. More recently, governments have shifted from solely publishing information and data, towards a more targeted disclosure that is more useful and impactful for stakeholders. In doing so, governments enable a two-way relationship with stakeholders providing information, as well as gathering their feedback to move towards increased accountability and better citizen and stakeholder participation.
Overall, Brazil is highly committed to the principle of transparency. For many years, transparency initiatives have largely dominated Brazil’s open government agenda, most notably with the development of the legal and institutional framework for ATI. These efforts have resulted in a significant volume of information becoming available alongside a simplified process to request it at the federal level. However, further efforts to consolidate the ATI framework across other branches and levels of government are still needed. Moreover, the existing transparency mechanisms could benefit from a more strategic use to monitor government action and to enable wider engagement with stakeholders to reinforce a culture of transparency.
This Chapter examines the opportunities and challenges that Brazil faces in implementing the open government principle of transparency. Based on Provisions 2 and 7 of the OECD Recommendation of the Council on Open Government (hereafter “OECD Recommendation”) (Box 7.1), it provides an in-depth assessment of the legal, institutional and implementation frameworks for access to information, the mechanisms and tools for proactive and reactive disclosure, as well as the role of transparency policies to enable stakeholder participation in policy design and decision-making. While the assessment focuses on the application of transparency policies at the federal government, it also integrates the perspective of other levels and branches of government.
Box 7.1. Provisions 2 and 7 of the OECD Recommendation of the Council on Open Government
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 7
Proactively make available clear, complete, timely, reliable and relevant public sector data and information that is free of cost, available in an open and non-proprietary machine-readable format, easy to find, understand, use and reuse, and disseminated through a multi-channel approach, to be prioritised in consultation with stakeholders;
Source: OECD (2017[3]), Recommendation of the Council on Open Government, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0438
The legal, policy and institutional frameworks for transparency in Brazil
The legal framework for transparency could benefit from more coherence
Transparency has been a high-level federal priority. For many years, transparency initiatives have dominated the open government agenda. For instance, this principle has been included as an objective in the open government policy and the digital government strategy. Moreover, the four Open Government Partnership (OGP) action plans have all had transparency-related commitments (see Box 7.2 and Chapter 3) (OGP[4]). They have contributed to advance the transparency agenda in several fronts, from supporting subnational governments with ATI provisions to developing a federal open data policy, to fostering active transparency in environmental and health issues. In fact, this focus has resulted in an overlap of the conceptual understanding of transparency with open government, meaning that the two terms are used as synonyms. As argued in Chapter 3, this was confirmed during the fact-finding mission where stakeholders would interchangeably refer to both concepts in the same way.
According to the responses to the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions, the approach of the government of Brazil to transparency is trifold: publishing information proactively, guaranteeing citizens' right to information, and providing open government data. According to the Office of the Comptroller General (Controladoria-Geral da União - CGU), who is in charge of the transparency agenda, this approach allows stakeholders to use information and data for engaging and monitoring government action (CGU[5]).
Box 7.2. Transparency commitments in Brazil’s OGP actions plans
Action Plan 5 (2021 – 2023):
Improve the quality and availability of environmental databases by promoting standardization, unification and integration of information from different public bodies and entities.
Make new information on federal public properties available online, improve the quality of information already made available - including on the current use of federal properties - and disclose data in formats enabling reusability by civil society.
Implement standards and guidelines for the integration of systems and data of the various National Health Surveillance System bodies in order to enable interoperability and enhanced usability, with a view to improving communication with the citizen.
Action Plan 4 (2018 – 2020):
Implement instruments and transparency actions, access to information and the development of capacities to expand and qualify the participation and public oversight over the repair processes
Develop a National Electronic System for information requests (e-Sic) in order to implement the Access to Information Law in states and municipalities
Establish, in a collaborative way, a reference model for an Open Data Policy that foster integration, training and awareness between society and the three government levels, starting from a mapping process of social demands
Action Plan 3 (2016 – 2018):
Enhance mechanisms in order to assure more promptness and answer effectiveness to information requests, and the proper disclosure of the classified document list
Ensure requester’s personal information safeguard, whenever necessary, by means of adjustments in procedures and information access channels
Make room for dialogue between government and society, aiming at generating and implementing actions related to transparency in environment issues
Formulate a strategic matrix of transparency actions, with broad citizen participation, in order to promote better governance and to ensure access and effective use of data and public resource information
Action Plan 2 (2013 – 2016):
Restructuring the Transparency Portal
Development of the “Access to Information Library”
“Brazil Transparent” Programme
Development of Monitoring Reports on the Electronic Citizen Information System (e-SIC)
Development of an Indicators Model for Transparency of Brazilian Municipalities
Action Plan 1 (2011 – 2013):
Restructuring the Transparency Portal
Guide for Public Officials on Access to Information
Capacity Building Programmes for Public Officials
Diagnostic Study on the Transparency Values of Executive Branch
Note: This list is not exhaustive.
Source: Authors own elaboration based on OGP (n.d.[4]), Brazil, https://www.opengovpartnership.org/members/brazil/.
Brazil has developed a comprehensive regulatory framework through several laws, decrees and policies with varying scopes of application that regulate several transparency provisions. These provisions are either interlinked or complementary to access to information, such as open data, protection of personal data and archives (see Table 7.1).
Table 7.1. Brazil’s transparency legislative and regulatory frameworks
Note: The list if not exhaustive.
Source: Author’s own elaboration based on (Casa Civil, 2011[6]); (Presidency of the Republic, 2016[7]); (Presidency of the Republic, 2019[8]); (Presidency of the Republic of Brazil, 2018[9]); (Presidency of the Republic, 1991[10]); (Presidency of the Republic, 2000[11]); (Presidency of the Republic, 2009[12]); (Presidency of the Republic, 2020[13]); (Presidency of the Republic, 2020[14]); (Presidency of the Republic, 2019[15]); (Presidency of the Republic, 2005[16]); (Official Diary of the Union, 2021[17]); (Presidency of the Republic, 2019[18]); (Presidency of the Republic, 2016[19]).
In addition to the framework listed in Table 7.1, other laws and decrees also create transparency obligations on sectoral areas (environment, budget, etc.) while others provide protection for specific information (fiscal, personal, etc.). These obligations contribute to develop a more transparent culture in the public administration and provide concrete tools for citizens to monitor government actions. For instance, through the mandatory publication of public revenues and expenditures, citizens and stakeholders can conduct oversight on government spending. However, interviews conducted during the fact-finding mission revealed that the complex net and interaction of regulations and processes can represent confusing obligations, burdensome reporting lines and bureaucratic procedures, particularly for subnational governments. While this challenge is not exclusive to transparency obligations, more clarity and coherence in regard to the primacy and complementarities across the laws, decrees and policies could help improve the overall understanding and implementation. Aware of this challenge, Brazil is considering integrating access to information, open data and other transparency related-elements into a single decree called the Transparency Policy. While it would only apply to the federal government, the Policy could provide the needed coherence among regulations and obligations to federal government institutions. In order to fully integrate the transparency agenda into the wider open government agenda, this Transparency Policy could become part of the Open Government Strategy, recommended in Chapter 3.
Moving from transparency as an element of control to a new culture of governance
At the institutional level, the transparency agenda is co-ordinated by the Directorate of Transparency and Social Control (DTC), in the Secretariat for Transparency and Prevention of Corruption (Secretaria de Transparência e Prevenção da Corrupção - STPC) within the CGU (see Chapters 6 and 8 on how social control is understood as accountability and participation in Brazil). According to interviews during the fact-finding mission, this mandate is recognised by all stakeholders across the government and civil society. In practice, the CGU’s ministerial status provides high visibility and authority to its actions. However, given its historic mandate for internal control, the approach to transparency is often perceived by federal bodies as a control issue rather than an attempt to change the administrative culture, limiting the potential that this agenda has in inclusive policy and decision making as well as in stakeholder participation, accountability and restoring trust in government. Therefore, the CGU could carry out awareness raising campaigns for public officials to move from a control approach into transparency as a new culture of governance that both enables and encourages citizen’s participation in policy-making and service-design and delivery, engages stakeholders in effective monitoring of government actions and prioritizes access to reliable information to identifying counter-measures and promoting open decision-making contributing to regaining citizens’ trust government.
The involvement of stakeholders in the elaboration, implementation and monitoring of transparency agenda increases awareness and buy-in
Another relevant body in regard to transparency is the Council for Public Transparency and Fight against Corruption (Conselho de Transparência Pública e Combate à Corrupção - CTPCC). Created by Decree 9,468 from 2018, the CTPCC acts as an advisory body within the CGU and is composed of fourteen members, seven representatives of the Federal Executive Branch and seven from organized civil society (Presidency of the Republic, 2018[20]). The Council aims to debate and suggest measures for the improvement and promotion of federal policies and strategies on several topics including transparency and access to public information. For instance, the CTPCC is involved in preparing and discussing the content of the Transparency Policy (Official Diary of the Union, 2020[21]). The work of the CTPCC related to anti-corruption and public integrity will be reviewed in detail in the OECD Integrity Review of Brazil (OECD, Forthcoming[22]). Other branches and levels of government have also developed similar advisory bodies that include external stakeholders, such as the Transparency and Social Control Council within the Federal Senate (Federal Senate[23]).
The involvement of civil society organisations in policy elaboration and implementation across levels and branches of government is crucial to increase awareness and uptake and to ensure consistency across thematic areas within the transparency agenda. The CGU could leverage the use of the CTPCC by ensuring a wider representativeness of stakeholders in the elaboration, implementation and monitoring of its transparency agenda to go beyond the usual suspects. In the medium term, as part of the recommended transition towards a fully integrated open government agenda (see Chapters 3 and 4), the Council for Public Transparency and Fight against Corruption could become part of the wider Open Government Council, as discussed in Chapter 4. This integration would strengthen the links between both agendas and ensure coherence and alignment.
The Brazilian legal framework for access to public information
The right to information is recognised at the highest level in Brazil
In public administration, ATI is defined as the existence of a robust system through which government information and data is made available to individuals and organisations (UNESCO, 2015[24]). In 1946, freedom of information was recognised as a “fundamental right and the touchstone of all freedoms” by Resolution 59 of the United Nations General Assembly (UNGA, 1946[25]). As a consequence, the right to ATI has been enshrined in several countries’ constitutions, including in 70% of OECD Countries, such as Belgium, Colombia, Greece and Portugal (Box 7.3). In Brazil, the right to information is recognised in the 1988 Constitution of the Federative Republic of Brazil, as discussed in Chapter 3:
Article 5 XIV and XXXIII: “Access to information is guaranteed to everyone and the confidentiality of the source is protected, when necessary for professional practice; (…) all persons have the right to receive, from the public agencies, information of private interest to such persons, or of collective or general interest, which shall be provided within the period established by law, subject to liability, except for the information whose secrecy is essential to the security of society and of the State”.
Item II of § 3 of article 37: “The law will regulate the forms of user participation in direct and indirect public administration, specifically regulating (…) access by users to administrative records and information on government acts”.
§ 2 of article 216: “It is incumbent upon the public administration, in accordance with the law, to manage governmental documentation and take steps to facilitate its consultation to those who need it” (Casa Civil, 1988[26]).
Box 7.3. Constitutions recognising the right to access information
Belgian Constitution
Article 32: “Everyone has the right to consult any administrative document and to obtain a copy, except in the cases and conditions stipulated by the laws, federate laws or rules referred to in Article 134”.
Colombian Constitution
Article 20: “Every individual is guaranteed the freedom to express and diffuse his/her thoughts and opinions, to transmit and receive information that is true and impartial, and to establish mass communications media.
Article 74: “Every person has a right to access to public documents except in cases established by law
Greek Constitution
Article 5(A): “1. All persons have the right to information, as specified by law. Restrictions to this right may be imposed by law only insofar as they are absolutely necessary and justified for reasons of national security, of combating crime or of protecting rights and interests of third parties. 2. All persons have the right to participate in the Information Society. Facilitation of access to electronically transmitted information, as well as of the production, exchange and diffusion thereof, constitutes an obligation of the State, always in observance of the guarantees of articles 9, 9A and 19”.
Portuguese Constitution
Article 268: “1. Citizens have the right to be informed by the Administration, whenever they so request, as to the progress of the procedures and cases in which they are directly interested, together with the right to be made aware of the definitive decisions that are taken in relation to them. 2. Without prejudice to the law governing matters concerning internal and external security, criminal investigation and personal privacy, citizens also have the right of access to administrative files and records”.
Source: Constitution of Belgium (1994[27]), https://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/GrondwetUK.pdf; Constitution of Colombia (1991[28]), https://www.funcionpublica.gov.co/eva/gestornormativo/norma.php?i=4125; Constitution of Greece (1975[29]), https://www.hellenicparliament.gr/UserFiles/f3c70a23-7696-49db-9148-f24dce6a27c8/001-156%20aggliko.pdf; Constitution of Portugal (1976[30]), https://www.wipo.int/edocs/lexdocs/laws/en/pt/pt045en.pdf.
Having the right enshrined at the highest level creates the necessary legitimacy and mandate for developing a legal and institutional framework for access to information at all levels and across branches of government. However, having solely the right recognised is insufficient if it is not well operationalised with adequate support and effective implementation.
As further discussed in Chapter 2, at the supranational level, Brazil has adhered to a number of international treaties and conventions that recognise the right to information (Table 7.2). These treaties and conventions lay out the general principles for the right to information. Countries that have ratified these instruments, such as Brazil, commit to protect and preserve the rights stated therein by taking administrative, judicial and legislative measures for effectively enforcing them.
Table 7.2. International treaties and conventions recognising the right to information adhered by Brazil
Note: This non-exhaustive list includes the most relevant treaties and conventions recognising the right to information, to which Brazil has adhered.
Source: Elaborated by author, based on (UN, 1948[31]); (OHCHR, 1976[32]); (UN, 2004[33]); (OAS, 1978[34]); (OAS, 2000[35]).
However, despite having signed the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean in 2018 (also known as the Escazú Agreement) Brazil has, so far, not ratified it. To do so would require the Executive to send the Agreement to Congress for ratification. The Agreement is an important regional instrument that aims to guarantee “the rights of access to environmental information, public participation in the environmental decision-making process and access to justice in environmental matters” (ECLAC, 2018[36]). This legally binding Agreement, which entered into force in April 2021, has 26 articles that outline provisions to ensure that the rights for information, participation, and justice on matters relating to the environment are respected. In terms of ATI, it includes obligations for generating, disseminating and providing access to information pertaining to environmental matters. Ratifying this Agreement would not only signal high-level political commitment and leadership to this policy area but would also allow Brazil to strengthen its existing environmental framework. Box 7.4 outlines the main findings and recommendations of Brazil’s OECD Environmental Performance Review.
Box 7.4. Environmental information and transparency in Brazil
In 2021, the OECD evaluated the alignment of Brazil’s environmental legislation, policies and practices with 23 selected OECD legal instruments on the environment. In terms of transparency, the evaluation found that environmental information remains fragmented+. Several institutions collect, consolidate and publish environment-related data. Brazil does not publish periodic state of the environment reports despite having to do so by national law and in contrast to the provisions of the OECD Recommendation of the Council on Reporting on the State of the Environment.
In 2017, the Ministry of the Environment published a set of key environmental indicators (the National Panel of Environmental Indicators) to track progress in implementing environmental and sustainable development policies. This is in line with the requirements of Recommendation of the Council on Environmental Indicators and Information. However, data sources, definitions and calculation methodologies for these indicators need to be clarified and updated.
The national access to information law regulates broad access to public information, as promoted by the OECD Recommendation of the Council on Environmental Information. As found by this Chapter, the law is followed well at the federal level, but its implementation at the state and municipal levels varies.
The recommendation of the 2015 OECD Environmental Performance Review (EPR) of Brazil to develop a uniform system for the collection and management of environmental data, including on environmental law implementation and economic aspects of environmental policies, remains valid.
To facilitate its alignment with the OECD Recommendations on environmental information, the report recommended the government of Brazil to:
Regularly publish state of the environment reports, both at the federal and state levels.
Continue efforts to develop indicators on the implementation of environmental and sustainable development policies and ensure that these are regularly updated and supported by appropriate data sources, definitions and calculation methodologies; enhance consistency between regional and national data.
Provide public access to information about environmental performance of enterprises, including the register of their pollution releases and compliance records.
Source: OECD (2021[37]), Evaluating Brazil’s progress in implementing Environmental Performance Review recommendations and promoting its alignment with OECD core acquis on the environment, https://www.oecd.org/environment/country-reviews/Brazils-progress-in-implementing-Environmental-Performance-Review-recommendations-and-alignment-with-OECD-environment-acquis.pdf
The National ATI Law in Brazil
At a country level, OECD data shows that the operationalisation of the right to information can take different forms depending on the national context and each country’s own particularities. The legal guarantees are mostly made operational through ATI laws that can be enacted at the national and at the local level. According to the Global Right to Information Rating (RTI), ATI laws are present in 134 countries (RTI Rating[38]), including 37 OECD members1. The ATI legal framework can also take the form of specific decrees, as it is the case for Costa Rica, or of directives or laws giving access to certain sectorial information (i.e. environmental, health).
At the national level, Law 12.527 from 2011 (hereafter “national ATI law”) establishes the provisions to enforce the right to access information as provided by the Constitution (Casa Civil, 2011[6]). It represented an important milestone not only for the transparency agenda but more generally for the national open government agenda, as it was developed and adopted in the framework of Brazil’s adherence to the OGP in 2011 (see Box 7.2).
According to the RTI, Brazil’s ATI law is ranked as the 29th strongest in the world, in terms of the quality of its legal provisions. With a total of 108 points out of 150 possible, it ranks significantly higher than the OECD average of 81 and above the average of Latin American countries of 93 (RTI Rating[39])2. The Rating, however, only examines the quality of the legal provisions for reactive disclosure and does not account for their implementation nor for proactive disclosure provisions.
The national ATI law has a wide scope of application but its uptake remains weak at the subnational level
The breadth of application of ATI laws indicates whether the provisions in place apply to all branches of government, to all levels of governments, to independent institutions of the state and / or to the entities carrying out public functions or managing public funds. Unlike most OECD countries, the national ATI law in Brazil has a wide scope of application covering all branches and levels of government, as well as private entities managing public funds, state-owned enterprises, independent institutions and other entities performing public functions (Articles 1-2). Among OECD members, ATI laws include small administrative regions (i.e. towns, cities) in 81% of OECD countries (e.g. Austria, Belgium, and Mexico), 53% cover the legislative and 59% the judicial branches (e.g. Chile, Estonia, and Slovenia), 84% of OECD countries comprise their independent state institutions (e.g. Finland, Japan, and Norway). These numbers vary for other bodies such as state-owned enterprises (78%) or private entities managing public funds (63%).
Similar to other countries with a federal structure, each level of government and each branch of government in Brazil is supposed to define specific rules in their own legislations for implementing the general provisions stressed in the national ATI law. While most public bodies have adopted regulations to comply with the minimum requirements of the national ATI law, a few have gone beyond. Such is the case of the federal government, which adopted Decree 7.724 in 2012 (hereafter “federal ATI decree”), to specify the procedure to provide access to information in 300 federal bodies (Casa Civil, 2012[40]). Importantly, the federal ATI decree assigned oversight responsibility of the ATI obligations to the CGU. The other branches of government have also adopted legal provisions to comply with the national ATI law. In particular, the Federal Senate (the Upper House) enacted the Executive Committee Act N° 9 in 2012 (Federal Senate, 2012[41]) to regulate access to data, information and documents. The Chamber of Deputies (the Lower House) enacted Act N° 45 in 2012 (Chamber of Deputies, 2012[42]), specifying the provisions for the application of the ATI national law. Through the Resolution N° 215 from 2015, the judicial branch also regulated the application of the national ATI law (National Council of Justice, 2015[43]). Some independent institutions, such as the Court of Accounts (TCU) and the Federal Public Prosecutor (Ministério Público Federal - MPF), have also established their own procedures for granting ATI within their institutions in accordance to the national ATI provisions.
However, at the municipal level, the adoption of their own ATI legislation remains weak. All 26 states and the federal district have developed their respective ATI provisions, however, there is limited data showing the exact number of municipalities that have done so. Article 45 of the national ATI law states that “it is up to the States, the Federal District and the Municipalities, in their own legislation, in compliance with the general rules established in this Law, to define specific rules”. Unlike other federal systems, Brazilian municipalities have financial, administrative and political autonomy, as further discussed in Chapter 2. This implies that each of the 5,570 municipalities have to, either adopt minimum regulations to comply with the national ATI law, or develop their own ATI law going beyond. This level of independence that is afforded to municipalities in Brazil influences the enforcement of several national laws at this level, including ATI.
In addition, in a country with important regional disparities such as Brazil (see Chapter 2), municipal capacities also play an important role in the adoption and implementation of the national ATI law as it requires adequate human and financial resources. Strong co-ordination and oversight mechanisms, as well as adequate incentives and effective sanctions, are also needed to ensure effective implementation.
To counter the weak compliance by Brazilian municipalities, the CGU developed the Brazil Transparency Programme (Programa Brasil Transparente - PBT) initiative. The PBT aims to motivate states and municipalities to adopt and implement the national ATI law. Established in 2013, the PBT is a voluntary programme that encourages subnational governments in committing to regulate the national ATI law, by providing implementation support through capacity building activities, technical materials, among other measures. As of November 2019, 1,542 out of the existing 5,570 (28%) municipalities had adhered to the PBT, as well as other subnational entities (such as judicial and legislative branches at both the state and municipal level) (CGU[44]). While the PBT has contributed to an increase of municipalities regulating the national ATI law, a study from the Getulio Vargas Foundation (Fundação Getulio Vargas – FGV), found that adhering to the PBT has not always lead to the actual implementation of ATI provisions (Michener, Contreras and Niskier, 2018[45]).
Further efforts are needed to promote the adoption of ATI obligations from the national ATI law across levels and branches of government. On the short term, the CGU could continue to foster compliance with the national law through initiatives such as the PBT that not only facilitate the adoption of the needed ATI regulatory framework, but also provide implementation support to increase capacities across subnational entities. In addition, as other sections of this Chapter will argue, to address the lack of effective oversight and enforcement of ATI obligations across all levels, stronger institutional mechanisms are needed. In the longer term, if the law is reformed, the government of Brazil could provide further clarity and details to the legal ATI obligations for other levels and branches of government.
Proactive disclosure of information and data In Brazil
Proactive disclosure refers to the act of regularly releasing information before it is requested by stakeholders, which is deemed to be essential as it shows a fully integrated and institutionalised culture of transparency by governments. It also reduces administrative burden for public officials involved in handling and answering individual ATI requests, which can often be lengthy and costly. Favouring proactive disclosure “encourages better information management, improves a public authority’s internal information flows, and thereby contributes to increased efficiency” (Darbishire, 2010[46]). Finally, it ensures timely access to public information for citizens as information is published as it becomes available and not upon request (OECD, 2016[47]). In fact, the proactive disclosure provisions from ATI laws in 21 OECD Member countries have set the legal mandate for open government data requirements and/or responsibilities. Other countries have developed separate open data regulations (OECD, 2018[48]).
The legal obligations for proactive disclosure at the federal level are in line with OECD good practices
Most ATI laws require the proactive disclosure of a minimum set of public information and data to be published by each institution. As in the majority of OECD Member countries, Article 8 of Brazil’s national ATI law requires all public bodies to proactively disclose the organigram and functions of the institution, budget documents, annual ministry reports, opportunities for and results of public consultations, as well as public calls for tenders (public procurement). In addition, Article 7 of the federal ATI decree adds more requirements for proactive disclosure by federal bodies, such as remunerations and subsidies received by public officials, as done by 42% of OECD Member countries. It is important to note, that in practice, more information is published proactively at the federal level, than what is required in both the national ATI law and the federal ATI decree, thanks to other legal frameworks. For instance, Ordinance 262 from 2005 requires all federal bodies to publish their management reports, annual activity reports and audit certificates. Overall, federal practice exceeds national requirements as well as OECD good practices.
The CGU has led efforts to implement proactive disclosure obligations at the federal level
An important element of any ATI law is where and how information is published. In addition to the type of information disclosed, Provision 7 of the OECD Recommendation specifies that data and information disclosed should be “clear, complete, timely, reliable relevant, free of cost and made available in an open and non-proprietary machine-readable format, easy to find, understand, use and reuse, and disseminated through a multi-channel approach, to be prioritised in consultation with stakeholders” (OECD, 2017[3]). In OECD countries, proactively disclosed information is mostly published either in a single location, such as a central portal, on each ministry’s or institution’s website, or in a combination both. In Brazil, public bodies subject to the national ATI law are obliged to disclose the required information through their official websites. These websites have a series of requirements specified by the national ATI law, such as providing a content search tool allowing ATI in an objective, transparent, clear and easy-to-understand language and enabling the recording of reports in various electronic formats, including open and non-proprietary, such as spreadsheets and text, in order to facilitate the analysis of information. All bodies are required to adopt the necessary measures to ensure accessibility of content for people with disabilities. Only municipalities that have less than 10,000 inhabitants are exempted from the mandatory disclosure on websites, but are still obliged to disclose budgetary and financial information. The federal ATI decree provides more in-depth information of how information should be published. Moreover, in addition to the mandatory website for proactive disclosure, some federal bodies have gone beyond the legal requirements to develop tools that facilitate the access and the use of public information and data, such as the “Platform + Brazil” and the “Purchasing Panel” developed by the Ministry of Economy. As the below section on targeted transparency describes in more detail, some of these tools enable a two-way relationship between public institutions and stakeholders.
Efforts have also been made by the CGU to develop platforms that compile available information and data from federal bodies in order to facilitate access and monitoring by stakeholders, notably with the Transparency Portal and the Open Data Portal (see Chapter 4 for a description of all relevant portals in the area of open government). Created in 2004, the Transparency Portal (www.portaltransparencia.gov.br) represents a major landmark for Brazil’s transparency and open government agendas and has helped paved the way for several of the current ATI and open data initiatives (CGU[49]). The portal centralises information from 32 government databases and provides users with different ways to explore and use the information and data with graphic resources, an integrated search engine and the possibility to freely download all available information and data in an open format. The portal mainly contains information on federal expenditure, including federal transfers to states, municipalities and the federal district. The overarching aim of the portal is to serve as an anti-corruption and control tool to monitor the use of public resources. For instance, stakeholders can track and verify whether federal transfers to municipalities have been used to provide the public services they were intended to. Importantly, in case any wrongdoing is identified, the portal provides the necessary information for citizens to make complaints or claims against any federal body through Fala.BR (see section below for more information). Within the portal, the CGU created a web page called the Transparency Network, which provides access to projects and actions relevant to social control. It includes links to some of the tools for social control developed by federal bodies in sectoral areas, such as education (e.g. scholarships paid to individuals), social benefits (e.g. continuous cash benefits), urban development (e.g. National System for Survey of Civil Construction Costs and Indexes (SINAPI), among others. However, the network is not an exhaustive list of all existing platforms nor the portal contains all available public information (CGU[50]).
In practice, the Transparency Portal benefits from wide popularity among citizens and stakeholders with over 27 million visits and 156 million Application Programming Interface (API) requisitions in 2020 (CGU[51]). Its use by civil society has led to concrete changes in government actions. For instance, in 2008, journalists analysed spending of the government’s corporate credit cards and found several abuses (Prado, Ribeiro and Diniz, 2012[52]). As a consequence, the federal government adopted the Decree 6.370 in 2008 to prevent the use of these cards for personal expenses which led to a 25% decrease of government credit card spending between 2007 and 2008 (Folha de S.Paulo, 2008[53]). That same year, the CGU launched a manual to guide federal public officials on how to use this form of payment (CGU, 2008[54]). Another study published in 2015 by a national newspaper analysed data extracted from the Transparency Portal and from the Higher Education Census showing that the Student Financing Programme (FIES) was financing private colleges for high income students instead of low income ones (Estadão, 2015[55]). The study resulted in a regulatory changes for the programme through the normative ordinances 21 and 23 to ensure that credits provided are merit-based (Exame, 2017[56]). These impact stories are testimony to the impact of the use of the Transparency Portal.
As highlighted in Chapter 9 on Open Government Data, another relevant effort is Brazil’s Open Data Portal (https://wiki.dados.gov.br/). The portal provides a central access point for researching, accessing, sharing and using public data. Open government data has also been used by stakeholders for monitoring government actions. For instance, the oncologic observatory (Observatório de Oncologia) uses government open data from the Ministry of Health (DataSUS), the National Cancer Institute (INCA) and the Brazilian Institute of Geography and Statistics (IBGE) to analyse cancer trends in Brazil (Oncology Observatory, n.d.[57]).
The implementation of proactive obligations varies across federal bodies
The creation of these portals has resulted in a significant volume of information and data becoming available to the population. However, interviews conducted during the fact-finding mission revealed a series of challenges in this regard. While some federal bodies have indeed developed good practices beyond the legal requirements, the implementation of basic proactive measures varies across institutions. An ATI Panel created by the CGU provides up-to-date statistics on compliance of proactive and reactive disclosure obligations. It reveals that between 1 January 2012 and 28 February 2022, 67% of federal bodies comply with their proactive obligations, 8% partially, and 25% do not (CGU[58]) (see Figure 7.1). The disaggregated data by shows that the highest compliance score is on information related to tools and technological aspects of websites from federal bodies (92%) and the lowest score is on information related to revenue and expenditures (57%).
Figure 7.1. Compliance with proactive transparency obligations by federal bodies
Note: The data covers the period from1 January 2012 to 28 February 2022.
Source: Authors own elaboration based on data from the ATI Panel (CGU, n.d.[58]) on 28 February, 2022. http://paineis.cgu.gov.br/lai/index.htm
The relatively low compliance rate may be partially explained by the different technical capacities across the over 300 federal bodies. According to interviews, other factors such as the lack of sanctions for non-compliance to the national ATI law, the persistence of a culture of secrecy in certain sectors and a lack of awareness of the benefits of proactive disclosure also influence the levels of compliance. To counter these challenges, the CTPCC proposed the creation of an active Transparency Observatory to expand the monitoring capacity for the proactive publication or withdrawal of information as well as for disseminating new information. The following set of actions were defined for its implementation: 1) a tool to report publication or withdrawal of information; 2) designing a dissemination and action process for information withdrawn; 3) elaborating a monitoring process; and 4) developing a dissemination tool for the information of the observatory (Official Diary of the Union, 2020[59]). As coordinator of this initiative, the CGU is working to implement these actions. Brazil could continue working towards the creation and implementation of the Transparency Observatory as it could help to address challenges related to the unequal implementation of proactive disclosure provisions across federal public institutions. Additional training and awareness raising activities for federal public institutions laying out the importance and impact of proactive disclosure could also help increase compliance. For instance, Brazil could collect and disseminate impact cases, such as the decrease in government credit card spending and the reform on the FIES, to increase buy-in from public officials. When facing a similar challenge of compliance with proactive provisions, the ATI oversight agency of Argentina co-created an Active Transparency Index with public officials and non-governmental stakeholders (Box 7.5).
Box 7.5. Active Transparency Index of Argentina
Argentina adopted its access to information (law 27,275) in 2016. In the framework of the law, the Agency for Access to Public Information (AAIP) was designated responsible for the implementation oversight identified challenges in the implementation of proactive provisions in its Article 32. In response, the AAIP created an Active Transparency Index designed collaboratively with relevant public officials and civil society in the framework of the fourth National Action Plan of the Open Government Partnership. The overarching aim of the Index is to measure the level of compliance of proactive transparency obligations stated in the Law 27,275 as well as to reduce the burden of ATI requests. The Index covers over 26 centralized and 94 decentralized institutions of the National Public Administration, 55 public companies, and 66 universities. These institutions are measured according to the following variables: the procedure to request the access of information, authorities and staff, salary scale, tax declarations, budgeting, audits, subsidies, and other transfers/operations.
Source: Government of Argentina (n.d.[60]), Proactive transparency (Transparencia activa), https://www.argentina.gob.ar/aaip/accesoalainformacion/ta
As further discussed in Chapter 4, the multiplicity of platforms and panels created by the federal government use different structures, terminologies and formats. For citizens and stakeholders, navigating these can be confusing and difficult, resulting in a struggle to find the information they need. For the government, it raises questions in terms of efficacy, reach and coordination. The current efforts on proactive disclosure could thus benefit from more standardization and simplification for users. Building on the example of the Transparency Network web page, the CGU could create a centralised and unique web page mapping all of the existing portals and panels where proactive information is disclosed. This web page could include guiding instructions for users to find the information they need. In an ideal case, this mapping page could be hosted within the Open Government Portal recommended in Chapter 4. Alternatively, should Brazil decide not to create the recommended Open Government Portal, the mapping page could become part of the Transparency Portal. Ultimately, making a more robust system for proactive disclosure that is easier to access and use can also ease the administrative and processing costs of access to information requests faced by federal public institutions, as will be explained below.
Other branches and levels of government have made efforts to proactively disclose information and data
According to the responses of OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions, the other branches of government duly comply with their proactive transparency provisions and have developed their own tools and mechanisms to promote the access and use of their published information and data by stakeholders. For instance, the Federal Senate has its own transparency portal. The portal allows stakeholders to track legislative activity, file ATI requests, access open data, participate in debates and provide opinions on projects and proposals, among other actions (Federal Senate[61]). Similarly, the transparency portal of the Chamber of Deputies has relevant information on legislative results, parliamentary income and expenses, as well an ATI web page (Chamber of Deputies[62]). The Chamber of Deputies also has an Open Data Portal, offering not only relevant open datasets, but also a game that allows citizens to better understand the parliamentarians’ activities through the use of data (Chamber of Deputies[63]). The highest bodies of the judicial branch also have transparency portals that include the publication of proactive information (i.e. the Supreme Federal Court, Supremo Tribunal Federal – STF and the Superior Court of Justice, Superior Tribunal de Justiça – STJ) (STF[64]) (STJ[65]). These portals not only publish additional information beyond what is required by law, but also seek to provide it in a user-friendly way using infographics and simple language.
At the subnational level, however, the implementation of proactive measures varies, according to data from the 360 Transparent Brazil Scale (Escala Brasil 360° Transparente – EBT 360). Created by the CGU, the EBT 360 measures the performance of subnational governments with the national ATI law’s proactive provisions. In terms of proactive disclosure, it verifies whether an official website for publication exists, and which information is made available, such as the organigram and functions of the institution, budget documents, and public procurement processes, among others. It covers all states and 665 municipalities with more than 50,000 inhabitants (CGU[66]). An analysis of the EBT 360 data conducted for this study shows that proactive transparency measures have a significant higher performance with a score of 4.6/5 for states and 4.2/5 for municipalities, than reactive ones with 4.2/5 and 2.7/5 respectively. The results for proactive measures do not show any significant difference between population size and performance of municipalities. The overall higher performance, even in smaller municipalities, implies a stronger uptake and adherence by subnational governments in complying with proactive obligations. This was also reflected in the responses from states and municipalities participating in the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions, all of which publish information proactively on a regular basis and have a transparency portal available. According to interviews from the fact-finding mission, some of the challenges that municipalities face in this regard, in particular smaller ones, relate to the lack of human and financial resources for the acquisition and maintenance of information dissemination tools and portals.
Reactive disclosure of information and data in Brazil
ATI laws typically include provisions for reactive disclosure. Reactive disclosure refers to the right to request information that is not made publicly available. Usually, these provisions describe the procedure for making the request, including who can file the request, the possibility for anonymity, the means to file a request, the existence of fees, and the delay for response to the request.
Protecting the identity of stakeholders requesting information is important
While the Brazilian national ATI law does not mandate applicants to indicate the motivation or reason for the request, it requires the provision of an identification. At the federal level, some of the valid documents for a natural person include the Identity Card (ID), Passport, Voter Registration Card, National Driver's License (CNH), National Registry of Foreigners (RNE), the individual taxpayer registry identification for legal persons (Cadastro de Pessoas Físicas - CPF) and the national registry for legal entities (Cadastro Nacional da Pessoa Jurídica - CNPJ) (CGU[67]). Identifying a requester could discourage stakeholders to request information as they may fear reprisals. For this reason, OECD countries are increasingly allowing for anonymous requests either de jure, with legislation explicitly protecting the integrity and privacy of individuals and parties that file a request for information, such as Mexico, Australia and Finland, or de facto, where countries do not require proof of identity and only ask for an email or contact address to send the requested information, as in Chile or the Netherlands.
Following concerns from civil society groups such as Article 19 and Transparency International Brazil, the federal government implemented a measure to provide identity neutrality to requesters as part of an OGP commitment included in Brazil’s third action plan. While requesters are still required to provide their identity details when filing a request online, the CGU – as oversight body- limits the personal information to a small number of trained public servants and forwards the request to the relevant ministry or body without personal data, protecting de facto their identity. However, this measure only applies to the federal government and could be extended to the subnational levels.
Protecting the identity of requesters is important to avoid the risk of profiling citizens and acting on biases by governments. The CGU could encourage this practice implemented at the federal level to subnational governments. To do so, the CGU could provide the necessary training and awareness-raising for public officials via the PBT to implement it through their respective online platforms. In the longer term, if the law is reformed, the government of Brazil could include a clause of anonymity to ensure the protection of requesters at all levels and branches of government.
The process to file a request for information is well-established at the federal level
The ease to file requests is a critical aspect to measure the quality and usability of an ATI law. In Brazil, requests can be made “by any legitimate means” according to the national ATI law. The federal ATI decree provides more clarity of what these means are, specifying that public bodies should allow requests to be filed online (e.g. dedicated portal), by written communication (e.g. post), or in-person. These standards are also followed in practice by the Chamber of Deputies, the Federal Senate, and the Judiciary. According to the federal ATI decree, each federal body may provide additional means, such as email or telephone. This is also the case in most OECD countries, where requests can be made by email (77% of OECD countries), online (on each ministry’s website or a dedicated portal) (55%), in-person (68%), written communication i.e. by post (94%) or by telephone (45%) to the responsible public official or body. Nevertheless, while the federal ATI decree is specific in terms of means for filing a request, the lack of clarity in the national ATI law amplifies the risk of different interpretations in other levels and branches of government, and thus, of contradictory implementation.
The national ATI law requires all public institutions to create a Citizen Information Service (Serviço de Informação ao Cidadão - SIC). The SIC is an office or person that assists and guides the public in regard to access to information, and that helps citizens and stakeholders to report on the processing of documents in their respective units and to file documents and requests for ATI (Article 9). The Brazilian SIC is the equivalent of what the OECD defines as an ATI office or officer who is typically appointed to guarantee both proactive and reactive disclosure of information (see section below on institutional arrangements). According to the national ATI law, states, the federal district and the municipalities should elaborate rules in their respective legislations to create a SIC (Article 45). For federal government institutions, the federal ATI decree specifies that the SIC should be “installed in an identified physical unit, easily accessible and open to the public”. It mandates federal government institutions to disclose the telephone and electronic mail for the SIC on their websites.
To ease the process of requesting information, the CGU created in 2020 an online platform called Fala.BR (hereafter “Fala”) to replace what was formerly known as the e-SIC. Fala is an innovative platform that combines the federal ouvidorias3 and the SIC obligations. It allows citizens to not only request information, but also to make complaints or claims against any federal body, express satisfaction or dissatisfaction for a service or programme, and provide suggestions for improving or simplifying public services (CGU[68]). Importantly, users can also follow the progress of their request and file an internal appeal in case of non-conformity with the response. In addition, as further explained below, Fala allows the CGU to provide up-to-date statistics on requests. Overall, by centralising ATI requests into a single system, the Fala platform has significantly simplified the process for citizens, stakeholders and federal government institutions when making or processing an ATI request.
For subnational governments, however, the development and maintenance of such a platform represents an important administrative burden, especially for municipalities with limited resources and a lack of necessary IT skills and/or connectivity. This creates a bigger gap between the federal government and the subnational level and other branches of government when implementing ATI obligations. To counter the gap, through the PBT, the CGU offers the software of Fala to any interested government body along with a manual detailing the necessary specifications for implementation (operational environment, configurations, minimum equipment requirements, etc.). The CGU also offers technical trainings for public officials who will manage it. However, as aforementioned, only 28% of municipalities have adhered to the PBT. Some subnational governments have chosen not to use Fala, as they had already developed comprehensive ATI online systems of their own. This is the case, for instance, of the city of Porto Alegre and the federal district of Brasilia. Both of them are capital cities representing bigger populations and having greater resources than the average. This is also the case in other branches of government, where only the Federal Senate adopted the Fala system, whereas the Chamber of Deputies and the Judiciary use their own portals4.
For citizens, the process to file a request for information implies the need to first, differentiate between information pertaining to local, state and federal authorities, and second, searching for the applicable means to file a request. To further increase uptake at the subnational level, stronger incentives should be put in place for adopting the Fala system. This could for example be done by further portraying its benefits, such as the easing of administrative costs. The government may also consider creating interactive guidelines or manuals for citizens and stakeholders on how and where to request government information depending on the type of information. These guidelines or manuals could direct stakeholders towards the relevant branch or level of government responsible for the information.
Reasonable and clearly defined fees encourage stakeholders to request information
While filing a request for information in 85% of OECD countries is free of cost, 82% of countries charge fees related to the reproduction of the information, for example, depending on the number of pages to be reproduced. When a variable fee is charged, a cap on the amount of the fee is applied only in a limited number of countries, such as Austria, Finland and France. Most governments distinguish between the charging of fees related to documents that are already available, for example, on a central government portal, and those requests that require searching, retrieval, reproduction and mailing of the information. This is also the case in Brazil. Article 12 of the national ATI law states that “information search and provision services are free of charge, unless the public body or entity is otherwise demanded to deliver document copies, situation in which only the costs of such services and materials will be charged”. The applicable fees are the responsibility of each public body and are regulated by law 14.129 from 2021, which provides principles, rules and instruments for digital government (Presidency of the Republic, 2021[69]). The national ATI law includes a waiver of fees when the economic situation of the requester does not allow him/her to do so without prejudice to self- or family support. Following the Organization for American States (OAS) Model Law 2.0 on Access to Public Information (OAS, 2020[70]), Brazil could consider advocating to include the possibility of providing the information free of charge if it is deemed in the public interest, or in setting a minimum threshold of pages that can be delivered free of charge in the national ATI law if it is reformed.
Federal bodies have a high response rate to ATI requests
Once a request is filed, ATI laws specify the delay for response. The average delay is 21 working days in OECD countries (OECD, 2016[47]). This is also the case in Brazil, where public authorities are required to confirm the receipt of request immediately and have a 20-day maximum deadline for responding with additional 10 days for extensions. These extensions require informing the applicant. Since the federal ATI decree came into effect in 2012, the average time for response by federal bodies is of 15 days, below the maximum deadline. As Figure 7.2 shows, even with an increase of number of requests over time, the average time of response has decreased. This suggests that the ATI system, at the federal level, has improved in efficiency.
Figure 7.2. Number of ATI requests and average time of response by federal bodies (2012-2021)
Source: Authors own elaboration based on data from the ATI Panel (CGU, n.d.[58]) on 28 February, 2022. http://paineis.cgu.gov.br/lai/index.htm
In other countries, such as Spain, laws provide for negative administrative silence. This means that in the absence of a response within the period specified, the applicant can consider his/her request denied. Although countries can have legitimate reasons for denying a request (see section below on exemptions), the absence of a proper justification to the requester may imply arbitrary responses and legal insecurity, ultimately affecting trust in the law, in the government and in public officials. On paper, Brazil’s national ATI law guarantees that all denials should indicate the reasons for the refusal, communicate in case the public body does not have the information or indicate if the information is already publicly available (Article 11). In case of a denial, requesters should also be informed of the possibility for appeal including the deadlines, conditions and competent authorities to do so (see section below on appeals).
According to the ATI Panel created by the CGU, which is an online platform based on Fala data and which provides up-to-date statistics on ATI requests, federal bodies have a response rate of 99.5% for the more than 1.1 million requests received between 2012 and February 2022. The disaggregated data indicates that in 69% of those cases access to information was provided, 5% partially, while only 8% were denied. For the remaining 18%, information either pertained to other bodies, did not exist, the request was repeated, or was not a request for information (i.e. stakeholders asking the Ministry of Citizens why they have not received their social aid) (CGU[58]). As Figure 7.3 shows, the amount of cases where access was provided has been relatively stable over time even with an increase of cases per year, except for a slight decrease in 2020 that can correspond to the COVID-19 pandemic (see Box 7.6 for more information). An independent study conducted by FGV analysing 3,550 requests for information confirmed the high response rate for federal bodies with 91%, compared to 53% for states and 44% for municipalities (Michener, Contreras and Niskier, 2018[45]).
Figure 7.3. Type of responses to ATI requests by federal bodies (2012-2021)
Note: The ‘other’ category comprises information pertaining to other bodies, did not exist, the request was repeated, or was not a request for information.
Source: Authors own elaboration based on data from the ATI Panel (CGU, n.d.[58]), on 28 February, 2022. http://paineis.cgu.gov.br/lai/index.htm
The current efforts to improve the quality of information provided should be continued
According to data from the ATI Panel, user satisfaction with requests for information have increased over time both in terms of quality, that is responses are satisfying, and clarity, that is responses are easy to understand (see Figure 7.4). While this progress reflects the important efforts made by the CGU to improve ATI efficacy and efficacy, the data only reflects the perception of 15% of users that made a request for information and who responded to the user satisfaction survey. In fact, during the interviews of the fact-finding mission, civil society groups raised concerns about the quality of the information provided by certain public bodies.
Figure 7.4. User satisfaction with ATI requests from federal bodies (2012-2021)
Note: The scale is 0 to 5, where 5 represents the most satisfying or most easy to understand.
Source: Authors own elaboration based on data from the ATI Panel on 28 February, 2022. http://paineis.cgu.gov.br/lai/index.htm
These concerns, although not reflected in the aggregated data from the ATI Panel, could be explained by several factors. First, the Fala system is relatively recent (mid-2020) and while it has simplified the process for public bodies, it also requires a period of adaptation for the teams of over 300 federal bodies in charge of dealing with ATI requests. Second, COVID-19 impacted the government’s capacity to respond to ATI requests in terms of onsite staff, access to internet connectivity and availability of resources (see Box 7.6). Third, as it will be explained below, the inefficiency of certain appeals process, the lack of sanctions for non-compliance and, in a few cases, of political pressure in specific policy areas, may also influence the quality of responses from certain federal bodies. Lastly, the indicators used in the ATI Panel by the CGU do not differentiate, for example a full vs partial response. One measure that the CGU has conducted to respond to the concerns of the quality of the information is the development of a searchable database in which all the requests made since July 2015 (date in which the e-SIC came into effect) and their answers are available for consultation by all stakeholders (Federal Government of Brazil[71]). While this is an important measure that helps increase transparency of the process and of the information provided, several stakeholders, during the fact-finding mission, raised that the website is difficult to navigate.
The CGU should continue carrying out efforts to improve the quality and transparency of information provided. In terms of the metrics used in the ATI Panel, the CGU could consider providing more transparency as to how indicators are calculated. In addition, as the below section will argue, a more efficient appeals process and stronger sanctions could stir federal government institutions to systematically provide information that is of higher quality. The government could also aim to improve the usage of the searchable database of requests and answers through a consultation with end-users. In addition, Brazil could follow the example of Mexico City in elaborating a framework or protocol to ensure ATI is provided during a crisis context (Box 7.6).
Box 7.6. Impact of the COVID-19 Pandemic on access to information in Brazil
In Brazil, the Provisional Measure No. 928 (medida provisória) suspended deadlines to answer ATI requests for public authorities who were subject to telework or quarantine, or if the public official or sector was primarily involved in the COVID-19 response. However, following a strong mobilisation from civil society and a ruling by the Supreme Court, the provisional measure was suspended. To analyse compliance during this period, the CGU published a report comparing data of requests between 2019 and 2020 for the period corresponding to the introduction of the state of health emergency in the country with Decree No. 6/2020 (March 20 to December 31, 2020). Data shows that average requests for information stayed relatively stable in both years and that the time of response decreased (14 days in 2019 to 13 days in 2020). Moreover, while access was provided in 50% of the cases in 2020, only 6% were denied. Surprisingly, the satisfaction level of users receiving a response remained almost the same during the pandemic from 3.9/5 to 4/5.
This data implies, on the one hand, while government capacity was indeed limited in terms of onsite staff, access to online connectivity and availability of resources, strong efforts were made to comply with ATI obligations. The few cases were requests and appeals were not responded or were outside the legal response period corresponded mostly to the ministry of health, which was overburdened with the health emergency. On the other, the government performance suggests that the Fala system, which was introduced during the pandemic, helped ministries cope with the administrative burden of requests. However, the provisional measure in itself reveals the lack of legal framework for ensuring ATI during a crisis context.
The Mexico City Protocol for access to information in times of crisis
Following an earthquake in 2019 and the COVID-19 Pandemic in 2020, the government of Mexico City decided to create a protocol for access to information and transparency in times of crisis. In sum, it outlines the minimum actions for transparency in emergency situations, by bodies subject to the ATI law, by oversight bodies, and by people and communities in each of the stages of a risk situation: prevention, reaction and recovery. These actions can include the digitization of documents, identifying which information should be published and disseminated during the emergency situation and how to monitor and evaluate emergency ATI actions.
To create the Protocol, the government conducted an open and participative process. First, it carried out 6 co-creation tables with multi-stakeholders to co-design a preliminary draft of ideas, proposals and definitions to be included in the Protocol. Second, in collaboration with the National Centre of Disaster Prevention and external specialists on risks management, the content for the Protocol was elaborated. For this stage, 3 co-creation tables with multiple stakeholders were made to revise the content in a collaborative way and agree on a final document. Third, once the Protocol was launched, a toolkit was co-elaborated with stakeholders to help different actors implement the Protocol. It is written in plain language and reflects different needs of all sectors of society. It is also adaptable to any crisis context and provides recommendations to avoid the circulation of fake news during a crisis.
Sources: (Regional Alliance for Freedom of expression and information, 2020[72]) http://www.alianzaregional.net/wp-content/uploads/2020/09/Saber-M%C3%A1s-XI-2020-3.pdf; (Federal Government of Brazil, 2021[73]) https://www.gov.br/acessoainformacao/pt-br/lai-para-sic/politica-monitoramento/informe-lai-covid-19; (InfoCDMX, 2021[74])
Further efforts are needed to consolidate reactive disclosure in other branches and levels of government
In other branches of government, the implementation of reactive disclosure measures varies. In terms of quantity of requests, the Chamber of Deputies received the largest amount of requests with 36,634 in 2019 and 20,041 in 2020 and responded to most requests below the 20-day limit (99% in both years) (Chamber of Deputies[75]). In comparison, the Federal Senate received 1,090 requests in 2019 and 537 in 2020 and responded on time in 94% of cases in both years (Federal Senate[76]). A study by the FGV analysing ATI responses in Brazil found that the judiciary had the lowest response rate (78%), compared to other federal branches, including the legislative (95%), the executive (93%) and autonomous bodies (89%) (Michener, Contreras and Niskier, 2018[45]). These findings were reflected during the fact-finding mission, were some stakeholders mentioned an increased perception of lack of quality of responses by the Judiciary. While the federal judiciary bodies do have room for improvement in terms of implementing ATI, the main challenges in terms of compliance seem to be situated at the state judiciary level. In fact, the FGV study found that state judiciary has a lower response rate than the executive (74% compared to 93%) (Michener, Contreras and Niskier, 2018[45]).
Similarly, at the executive level in subnational governments, the EBT 360 shows that while important progress has been made in terms of compliance with the national ATI law since 2015, challenges remain. To measure compliance with reactive disclosure provisions at this level, the methodology of the EBT 360 consists of filing real requests for information and publishing the performance results as a ranking per state and per municipality. An analysis of the latest EBT 360 data made for this report show an average score of 4.2/5 for states and 2.7/5 for municipalities. In practice, municipalities did provide a response to a request for information in 52% of the cases and in an additional 8% the response did not answer to the request. In sum, only 3 out 8 requests were responded correctly and in due time (CGU[66]). This data is similar to the findings from the FGV study, which found a 43% response rate in municipalities (Michener, Contreras and Niskier, 2018[45]). Further, EBT 360 data show that there seems to be a correlation between the population size of municipalities and their ATI responses. Larger municipalities tend to have higher compliance rates. This highlights the impact that territorial disparities, such as limited technical capacities and access to Internet, can have on ATI compliance. However, there are large disparities across the results, showing that small municipalities can achieve a high compliance score, and bigger ones can do poorly. This implies that, in addition to territorial disparities, incentives and/or leadership can also influence municipal compliance on ATI requests.
Improving the process for classifying information
Countries can have legitimate reasons to exempt some information from being disclosed. Public interest tests and harm tests are two common ways to exempt information to ensure that these are proportionate and necessary. Under harm tests, refusals are only made when disclosure poses a risk of actual harm to a protected interest, whether it is for a person, national defence, economic interests, or other. The public interest test is known as the balancing act, whereby public officials “weigh the harm that disclosure would cause to the protected interest against the public interest served by disclosure of the information” (Right2Info[77]). A mandatory public interest override, which can force disclosure of information that is in the public interest, such as information on human rights abuses, corruption, or crimes against humanity, is also an important standard in ATI laws.
In Brazil, public institutions in all branches and levels of government may deny access to information that fall under a list of exceptions, including national security, international relations, personal data, public health and safety, among others (Article 23). While the list follows international best practices, it lacks clear public interest and harms tests that could help guide public officials in applying exceptions. In addition, the national ATI law states that information or documents regarding conducts that violate human rights practiced by public agents or by order of public authorities cannot be object of restricting its access (Article 21) and forbids the destruction of documents related to human rights violations (Article 32). This mandatory public interest override is in line with international best practices, included for instance in Article 27 of the ATI model law 2.0 of the OAS. Furthermore, the federal ATI decree establishes additional conditions for denying a request, particularly, for those considered “disproportionate or unreasonable” or requiring “additional work” (Article 13). An analysis by the CSO Article 19 found that these federal exceptions can be used by bodies to justify a denial, which would force requesters to file appeals to justify their request for information (Regional Alliance for Freedom of expression and information, 2019[78]).
The national ATI law also provides that information held by public bodies and entities may be classified as top-secret (25 years), secret (15 years) or reserved (5 years). Only a limited number of government officials who have been accredited and trained on security and treatment of classified information in accordance with a federal regulation can impose top-secret information. These include the president, vice-president, ministers, commanders of military forces, and heads of diplomatic and consular missions (Casa Civil, 2012[79]). The classification of any information must be formalised with a decision clearly indicating the subject, basis and period. Decisions pertaining to information at the federal level are then reviewed by the Mixed Information Reassessment Commission (Comissão Mista de Reavaliação de Informações - CMRI). The CMRI is a collegiate body that is composed of nine key ministries, including the CGU, the Ministry of Justice and Public Security, and the Civil House of the Presidency of the Republic, which presides over it. In addition to its oversight role on information classification, the Commission also acts as the last administrative appeal body (see section below on appeals) (Federal Government[80]).
During the fact-finding mission, civil society organisations expressed concerns about the process for classification of information. One example is Decree 9,690 from 2019, which expanded significantly the number of public officials who could impose a top-secret and secret classification (Article 19, 2019[81]). While the federal government revoked the decree following strong pushback from civil society organisations, the action points to the risk of using presidential decrees for restricting transparency and to the persistence of a culture of secrecy. The political profile of accredited officials may reflect partisan interests when classifying key information. This can undermine the impartiality of the process, eroding citizen trust in government as a reliable source of information.
Brazil could consider following the article 38 of the ATI model law 2.0 of the OAS, which advises that the rules and procedures to govern classification must be, first, subject to the process of an open consultation, and second, be broadly disseminated (OAS, 2020[82]). Conducting such a process could help counter the sentiment of opacity around the classification decision-making and increase awareness of public officials whilst protecting the process from political changes. As the below section will show, the CGU could consider changing the composition of the CMRI beyond the executive branch to include stakeholders from other state institutions including autonomous bodies. In addition, if the national ATI law is amended, Brazil could consider adding clear public interest and harms tests to help guide public officials in applying exceptions. In the short term, a manual focusing on simple language as well as trainings for public officials working on the SIC could help guide the application of exemptions.
More transparency in the appeals process can improve the application of the right to access information
ATI laws commonly provide requesters with the possibility to file appeals of the decision. The grounds vary across countries, but most often include a denied request (100% of OECD countries), negative administrative silence (94%), breaches of timelines (84%), or excessive fees (53%). As with requests, the procedure of filing appeals should be simple, free of charge, and completed within clear timelines. The most common mechanisms for recourse can be: 1) internal (79% of OECD countries), wherein requesters appeal to the same institution or body which denied their original request for information, 2) external (85% of OECD countries), to an independent institution that can conduct its mandate without interference from other state/public institutions (e.g. an information commission, Ombudsperson) or to the institution within the executive that is charge of this role and 3) judicial (97% of OECD countries), to an administrative court. Some countries require that requesters first lodge an internal or external appeal (OECD, 2016[47]).
In Brazil, requesters have the right to appeal in case of a denial of information or a failure to provide the justification for denial within 10 days according to the national ATI law. According to Brazil’s responses to the 2020 OECD Survey on Open Government, while not specified in the federal decree ATI, appeals and/or complaints may also be made for breaches of timeline, excessive fees and when responses are considered incomplete or differ from the original request. For information pertaining to federal bodies, there are several levels of appeals:
Internal appeals: requesters can first, file an appeal to the hierarchical authority in the public institution to which he/she requested the information and, second, to the highest authority of the same institution. Requesters can file both appeals online through Fala or in-person in the institution’s Ouvidoria and/or the SIC office, as defined by each public institution.
External appeals: a third appeal can be made to the Federal Ouvidoria's Office (OGU) within the CGU, and a fourth to the CMRI.
Judicial appeal: A judicial appeal can be filed at any stage, without the need of exhausting internal or external appeals. A Federal Court will receive the process and the results may receive appeal to higher courts from both parts.
All the appeals process, except for judicial ones, are outlined in the national ATI law and further specified in the federal ATI decree for the Executive branch. According to data from the ATI Panel, since 2012, only 12% of the more than 1.1 million requests to federal bodies have been appealed. As shown in Figure 7.5, with the exception of 2021, the number of appeals has increased over time in parallel with requests for information.
Figure 7.5. Number of ATI requests and appeals by federal bodies (2012-2021)
Source: Authors own elaboration based on data from the ATI Panel on 28 February, 2022. http://paineis.cgu.gov.br/lai/index.htm
From the appeals that are filed, on average 67% get solved in the first level, 20% in the second, 10% in the external appeal to the CGU, and only 3% reach the CMRI. As Figure 7.6 shows, since the federal ATI decree came into effect in 2012, the appeals solved in the first and second level have consistently represented more than 80% of the total. In terms of time to respond, both internal appeals take, on average, 28 days, the third, 52 days and the fourth, an average of 255 days. Data show that response time has also decreased in recent years. For instance, the average from 2018 to 2021 is of 12 days for internal appeals, 31 for the third and 123 for the fourth level. However, the overall lengthy process for the third and fourth level may undermine the requesters’ effective application to the right to access information.
Figure 7.6. ATI appeals to federal bodies solved by level (2012-2021)
Source: Authors own elaboration based on data from the ATI Panel on 28 February, 2022. http://paineis.cgu.gov.br/lai/index.htm
To increase transparency of appeals, the government created the “ATI Decisions Search”, where the decisions of both external appeals instances, the CGU and the CMRI, are published online (Federal Government[83]). However, during the fact-finding mission, civil society organisations raised concerns about the independence of the appeals decision-making process. An independent analysis conducted by the FGV analysed favourable decisions to requesters made by the CGU at the third level of appeals and found that in most cases (62%) federal bodies do not provide a response and ignore the first and second level of appeals. Once these bodies are contacted by the CGU, they respond to the request. For the rest, bodies either violated precedent established by the CGU (20%) or did an illegitimate use of exemptions (13%) (Michener, Forthcoming[84]). Another study analysing the cases reaching the CMRI (the fourth level) found that most decisions are the same as those taken by the CGU in the third level of appeals (Camargo and Filho, 2019[85]). While the ATI Decisions Search provides insights into behaviour of federal government institutions, limited information that exists regarding the internal appeals (i.e. first and second level) can lead to mistrust of the overall appeals decision-making process.
More transparency in regards to the internal appeals is needed. The government could continue making efforts to limit the response time at all levels of the appeals process. Moreover, the Brazilian government could provide more time for requesters to file appeals. The OEA ATI model law 2.0 suggests a limit of 60 business days for internal and external appeals to ensure that stakeholders have enough time to file it. As mentioned in the above section, the CGU could consider changing the composition of the CMRI beyond the executive branch to include stakeholders from other state institutions including autonomous bodies. Finally, the government could provide the DTC with the authority to issue binding decisions when information should be disclosed by a public body following an appeal.
There is room for improving the process for appeals in other branches and levels of government
The national ATI law calls on every State, Federal District and Municipality to elaborate their specific rules for appeals (Article 45). As provided by the National School of Public Administration (Escola Nacional de Administração Pública - ENAP) course on ATI regulation in municipalities, each should establish at least one level of appeal (ENAP, 2015[86]). However, few subnational governments have in practice elaborated such rules. The data from the EBT 360, which reflects the results of the requests for information filed anonymously by the CGU, indicates that only 44% of municipalities and 86% of states mentioned the possibility of filing an appeal to stakeholders when responding to a request (CGU[66]). This goes against the national ATI law, which provides that requesters should be informed of the possibility for appeal including the deadlines, conditions and competent authorities to do so. The low uptake and lack of information regarding the appeals process in municipalities is confirmed in an independent study from the FGV, which found that only 4 capital cities, among the total of 26, provide information on how to file appeals (Schwaitzer and Michener, 2020[87]).
Despite the lack of specific rules in this regard, there are competent bodies with which requesters can file external or judicial appeals at all levels and branches of government. At the subnational level, this pertains to the state prosecutor and the local legislature. In fact, several stakeholders during the fact-finding mission mentioned that due to the lack of effective internal appeals at this level, they go directly to the judiciary to file an appeal. The responsibility for appeals also varies in the other branches of government. For instance, for the judiciary it is the National Council of Justice (CNJ), for prosecutors, it is the National Prosecutor Council, and for the Legislative Branch, it falls either on the State or the Federal Court of Auditors (Federal Government[88]). In the judiciary for example, the CNJ provides stakeholders the possibility to file two levels of internal appeals, both within 10 days. In case of a denial, the bodies of the judiciary are mandated to notify the CNJ Ouvidoria (National Council of Justice, 2015[43]).
The institutional framework for access to information in Brazil
Strengthening ATI oversight capacities for a more effective implementation
An important factor for the effective implementation of ATI laws is the existence of robust institutional arrangements to ensure their application. The entitlements and responsibilities of these bodies vary widely among OECD Member and Partner countries, but can be grouped into: 1) enforcement, 2) monitoring and 3) the promotion of the law.
1. In relation to enforcement, bodies can be in charge of managing the ATI panel, of consolidating the proactively disclosed information from other government institutions, of reporting to Parliament on its implementation on a regular basis (e.g. yearly), and of redistributing misallocated or non-allocated requests among government institutions. It is also related to appeals and/or revisions processes, such as handling complaints on breaches to the law, initiating investigations on potential breaches, issuing opinions/witness in litigations on the law and sanctioning public officials/institutions for non-compliance.
2. The responsibilities to monitor can be related to the compliance of the law itself, the internal appeals process and/or the awareness of the law among the population.
3. Finally, bodies responsible for the promotion of the law can be in charge of advising public institutions on its application and providing trainings and/or awareness-raising campaigns to civil servants and/or civil society.
Evidence collected by the OECD suggests that there are common elements supporting the effective functioning of ATI oversight bodies. First, the establishment of a clear and well-disseminated mandate, that sets clear roles and responsibilities, is an important factor ensuring the body’s legitimacy. Second, the institutional autonomy and the independence of public officials within the organisation are key to ensure impartiality of the decisions and the operations. Last, the enforcement capacity, both in terms of competence to issue sanctions and of having adequate human and financial resources, is crucial to effectively conduct its mandate (OECD, 2019[89]).
As shown in Figure 7.7, ATI oversight bodies can take the form of an independent information commission (or agency or other body) which a mandate purely to oversee the implementation of ATI laws (15 OECD countries) or also it can be a body, like an ombudsperson or other independent institution with an ATI mandate as part of a wider remit (e.g. human rights, discrimination or gender) (9 OECD countries). The ATI oversight mandate can also be assigned to a central government body, which is not independent from the executive branch (17 OECD countries). Some countries have systems in which two or more public bodies oversee the implementation of access to information laws. For example, Chile has a Council for Transparency and a Transparency Commission within the Ministry General Secretariat of the Presidency. Further, 11 countries have no body specified in the law, or have a body that does not fall under any of the aforementioned categories.
Figure 7.7. Bodies responsible for the enforcement, monitoring and/or promotion of the ATI law, 2020
Note: The other category comprises countries that either have no body specified in the law, or have a body that does not fall under any of the aforementioned categories.
Source: OECD 2020 Survey on Open Government.
Brazil’s national ATI law mandates that the federal executive branch designates oversight responsibility to a specific body over federal bodies (Article 41). This responsibility was assigned to the CGU by the federal ATI decree. As part of its attributions, the CGU is responsible for increasing awareness, providing training, promoting a culture of transparency, and submitting an annual report to the National congress. In practice, these responsibilities are divided into three bodies within the CGU. First, as aforementioned, the OGU acts as external appeals body (3rd level) for ATI requests made at the federal level. Second, the Directorate of Transparency and Social Control (DTC) within the STPC leads the oversight and monitoring of the implementation of the ATI obligations at the federal level, in particular with compliance with deadlines and procedures. The DTC also conducts capacity building and awareness raising activities related to ATI and the broader transparency agenda (see Chapter 3 for a discussion of the responsibilities of the DTC). Although it is not legally required, the DTC also fosters the implementation of the national ATI law through programmes such as the EBT and the PBT in other levels and branches of government, while respecting their independence and autonomy. And third, the Federal Internal Affairs Office (CRG) is in charge of enforcement and sanctioning, for instance, with cases raised by the DTC.
According to Article 33 of the national ATI law, individual public officials or private entities subject to the law that fail to comply with the provisions can lead to the following sanctions: warning; fine; termination of the relationship with the government; temporary suspension from participating in bidding and impediment to contract with the public administration for a period not exceeding 2 years; and declaration of unfitness to bid or contract with the public administration, until rehabilitation is promoted before the authority that applied the penalty. As mentioned, the CRG has the competence to issue sanctions for public officials but not for federal bodies. Therefore, the CGU privileges the use of soft measures, such as rankings for federal bodies to encourage competition and increase compliance. These rankings are mostly published in the ATI Panel. Another measure is the monitoring procedure for omissions to the ATI law by federal bodies, which was put in place by the DTC (Federal Government, 2018[90]). According to the level of omissions of each federal body, the DTC applies a series of measures described in Table 7.3 before recurring to sanctions to the public official.
Table 7.3. ATI Omission Monitoring Procedure
Source: Authors own elaboration based on (Federal Government, 2018[90])
On 28 February, the ATI Panel provided as snapshot that only 112 omissions5 were pending, that is, requests that expired and were not answered. Most of them correspond to requests for information (80%) and the rest to first and second level of appeals (15% and 5% respectively) (CGU[58]). During the fact finding mission, it was raised that administrative sanctions are rarely applied to public officials by the CRG. However, the lack of sanctions can lead to an increase of violations and a discretionary use of exemptions, creating a perverse incentive for non-compliance from public officials. As explained by the CGU, the DTC and the CRG have limited human and financial resources to carry out the investigation related to the breaches of all the ATI responsibilities by public officials. According to the OECD 2020 Survey on Open Government, the DTC has only 6 full-time public officials dedicated to the implementation of the federal ATI decree across 300 federal bodies, including the monitoring procedure described in Table 7.3. Similarly, the CRG has a team of 20 public officials working on the enforcement and sanctioning. In addition, CGU’s overall budget has decreased by half since 2018 as a percentage of government spending putting pressure on the CGU’s capacity to deliver on its mandate.
Measures that apply soft pressure, such as rankings, have helped increase overall compliance among federal government institutions. However, the challenge of non-compliance is even more important at the subnational level, where the regulations elaborated by some local governments omit sanctions for public officials that violate the ATI obligations (Michener, Contreras and Niskier, 2018[45]). Thus, to ensure the correct implementation of ATI obligations, the use of more efficient mechanisms for sanctioning non-compliance are necessary. This could be addressed by strengthening the capacities of the CGU, first, by increasing the human and financial resources of both the DTC and the CRG to effectively conduct their mandate. Second, requiring federal government institutions to commit checking pre-defined standards before denying a request, for example in through the Fala platform, could help nudge them towards increased compliance.
Institutional autonomy and a clear and well-disseminated mandate are important elements for ATI oversight institutions
During the fact-finding mission, concerns were raised regarding the level of independence of the CGU to act as the oversight body for the ATI law at the federal level. Some stakeholders expressed their preference to file a judicial appeal rather than the administrative process (internal and external appeals).The DTC, in addition to the ATI implementation obligations, is also responsible for the broader transparency agenda, as aforementioned. On a larger scale, the STPC –which includes the DTC- has the attributions for social control, ethical conduct, integrity in public and private institutions, as well the open data policy. Having this broad mandate in a single institution can help connect the larger transparency agenda with the federal ATI obligations and amplify the impact of some of the ATI initiatives conducted in the framework of the national ATI law, such as the trainings and capacity building activities. However, as raised by certain stakeholders during the fact finding mission, there is a potential conflict of interest given the duality between the CGU’s role both in making the transparency policy as well as in being in charge of the implementation and oversight of the ATI provisions at the federal level.
Increasingly, bodies responsible for ATI take a joint role for ATI and personal data protection. This is the case for instance, in Mexico, Argentina, and Belgium. Although both topics are treated as separate legal frameworks in most countries and require different technical capacities and training, their proximity and complementarities have often pushed governments to centralising the role into a single institution. An example of this proximity is when a request for information pertains the personal data of a third person. In Brazil, the National Data Protection Authority (Autoridade Nacional de Proteção de Dados - ANPD) was created in 2020 (Presidency of the Republic of Brazil, 2020[91]) in the framework of the General Law for the Protection of Personal Data (LGPD) (Presidency of the Republic of Brazil, 2018[9]). The ANPD is part of the Presidency of the Republic and benefits from technical and decision-making autonomy (Presidency of the Republic of Brazil, 2020[92]). There is thus a potential fragmentation in the effective implementation of both agendas, in particular for ATI requests related to personal data.
To address this complexity, Brazil could ensure, in the long term that the institution with the oversight mandate of the national ATI law has the necessary institutional autonomy and the independence of public officials within the organisation to ensure impartiality of the decisions and the operations. The National Institute of Transparency, Access to Information, and Protection of Personal Data (INAI) in Mexico is a prominent example of a constitutional autonomous and is independent from state authorities (Box 7.7). In the shorter term, as aforementioned, the government of Brazil could strengthen the capacities of both the DTC and the CRG by increasing their human and financial resources.
Box 7.7. The National Institute of Transparency, Access to Information, and Protection of Personal Data (INAI) of Mexico
Following the adoption of the Mexican ATI law in 2002, the INAI was first established as a decentralized body of the Ministry of the Interior. Due to its lack of autonomy, many stakeholders, including citizens and politicians across the political spectrum, demanded the creation of an autonomous body, which was then created through a constitutional reform in 2014. Given that the INAI is a constitutional body, it is independent from other state authorities, and therefore free from the influence of the executive, legislative, or judiciary branches of government.
The INAI is composed of seven commissioners who are designated by the Congress of the Mexican Federal Union to guarantee their independence. The law establishes that profiles of stakeholders who have relevant experience in ATI and protection of personal data should be chosen.
Currently, the main role of the INAI is to guarantee that 865 federal public entities grant access to public information in line with the law. It also responds to appeals, coordinates the National Transparency System and promotes transparency and ATI more broadly. Since 2003 until the end of 2020, more than 2 million requests for ATI have been made. In that same period, requesters made more than 100,000 appeals.
The INAI has represented one of the most important democratic advances in Mexico and has been key to expose several high profile cases unveiling corruption and human rights abuses through the use of ATI.
Source: INAI (n.d.[93]) What is the INAI ? https://home.inai.org.mx/?page_id=1626
Increased capacities and further co-ordination are needed to improve ATI oversight across branches and levels of government
For other levels and branches of government, the national ATI law does not stipulate any obligation for bodies subject to the law to designate their own oversight authorities. Following good practice from the federal level, the Senate established the Transparency Secretariat which has the competence, among others, to guarantee access to data, information and documents of collective or general interest which are produced or in its custody. Similarly, the Transparency Secretariat of the Chamber of Deputies is responsible for supervising compliance with the national ATI law; foster a culture of transparency and evaluate the application of legislation on transparency. In the Judicial branch, this role is assigned to the respective Ouvidoria office.
In contrast, few states and municipalities have designated an oversight authority. A study from the FGV found that 16 states and 10 capital cities (from a total of 26 plus the federal district) assign ATI oversight responsibility to a defined body (Michener, Contreras and Niskier, 2018[45]). In addition to the designation of individual oversight authorities in each body subject to the law, the Federal Attorney for Citizens' Rights (PFDC) within the Federal Public Prosecutor (Ministério Público Federal - MPF) is charged with protecting and defending constitutional rights, including access to information (MPF[94]). As a constitutional autonomous body, the PFDC within the MPF can issue recommendations to public agencies or service providers, so that they respect human rights and the legal and constitutional norms that protect citizens. However, during the interviews it was raised that its limited human and financial resources and its heavy workload, hinder its enforcement capacities in terms of ATI at the subnational level.
Brazil could create a special task force between the CGU and the Federal Public Prosecutor in order to increase compliance and enforce oversight of the ATI law at all levels of government and in all branches of the state. Increasing communication and co-ordination among both institutions through a joint task force could increase enforcement by linking the sanctioning power of the Federal Prosecutor with the CGU’s monitoring mechanisms and established leadership. Brazil should also consider strengthening the enforcement capacities of the Federal Public Prosecutor by ensuring it has access to the necessary human and financial resources to effectively deliver on their mandate. When facing a similar challenge, Argentina established a Federal Council for Transparency (Consejo Federal para la Transparencia) to promote technical co-operation and consultation on transparency and access to information policies across all levels of government. The Mexican National Transparency System also provides an example of an ATI coordination body in a federal country (Box 7.8).
Box 7.8. The Federal Council for Transparency in Argentina
Most provinces within Argentina’s federal structure have adopted their own ATI laws or incorporated access to information provisions into their constitutions. Accordingly, article 29 of Argentina’s national ATI law created a Federal Council for Transparency (Consejo Federal para la Transparencia). The Federal Council is composed of high-level representatives of all provinces and the City of Buenos Aires.
Established as a permanent interjurisdictional body, the Council aims to promote technical co-operation and consultation on transparency and access to information policies across all levels of government, in order to promote agreement on policies and criteria for access to public information. The Council is supported administratively and technically by the Agency for Access to Public Information of the executive branch, whose director also presides over biannual meetings, which also aim to assess the degree of progress in terms of active transparency and access to information in each of the jurisdictions.
The Mexican National Transparency System
The Mexican National System of Transparency, Access to Public Information and Protection of Personal Data (Sistema Nacional de Transparencia - SNT), is a coordination and deliberation body, whose objective is the cooperation, collaboration, promotion and dissemination of efforts related to transparency, access to information and protection of personal data, in accordance with the provisions of the General Law of Transparency and Access to Public Information and other applicable regulations.
The SNT is composed of: 1) The National Institute of Transparency, Access to Information and Protection of Personal Data, which acts as a coordinator; 2) The Enforcement Bodies of the Federative Entities; 3) The Superior Audit of the Federation; 4) The General Archive of the Nation; and 5) The National Institute of Statistics and Geography.
The comprehensive coordination efforts of the SNT contribute to generate quality information and improve information management; to facilitate the knowledge and evaluation of public governance; to the promotion of the right of access to information and the dissemination of a culture of transparency and its accessibility; as well as to a more robust government accountability.
Source: Mexican National Transparency System (n.d.[95]), http://www.snt.org.mx/; OECD (2019[96]), Open Government Review of Argentina, https://dx.doi.org/10.1787/1988ccef-en.
The establishment of an information office or officer in each public body can improve implementation
Several ATI laws across the OECD require the establishment of an information office or officer responsible for ensuring compliance with the law. These officers are usually appointed to guarantee both proactive and reactive disclosure of information. Currently, ATI laws stipulate such a role in 50% OECD countries (see Figure 7.8). However, countries without this legal provision can still create a similar position in practice. The absence of these officials, either because the legislation does not provide for them or because the positions are not created or filled, has proven to be a significant obstacle to its implementation (OECD, 2019[89]). Providing ATI officers or units in all public institutions with adequate resources for implementation, including sufficient human and financial resources, is essential to effectively implement an access to information law.
Figure 7.8. Requirement for an access to information office or officer stipulated by law, 2020
Source: OECD 2020 Survey on Open Government.
In Brazil, the role of the ATI office in public institutions is designated to the SIC in all bodies subject to the national ATI law. For federal government institutions, the federal ATI decree also mandates the designation of an authority to ensure compliance, to monitor the implementation and to submit periodic reports to the CGU. In practice, all 300 bodies subject to the federal ATI decree have established a SIC and a monitoring authority, however, their internal arrangements can take different forms. In most cases (70%) according to the CGU, both roles are designated to a person or unit inside the body’s Ouvidoria’s office. Ordonnance 581 from 2021 establishes that the SIC can be part of the Ouviduria, meaning receiving the requests for information or internal appeals through Fala (Official Diary of the Union, 2021[97]). Once received, the person or unit: 1) forwards the request to the responsible team in charge of the information, and 2) ensures that the response is clear, correct and up-to-date. As it is not mandatory, some ministries have created technical units, outside the Ouvidoria offices, to cluster the proactive disclosure and open data responsibilities. Even though the internal arrangements are not uniform, data shows that compliance has increased (see Figure 7.2 for ATI compliance data and Chapter 8 for a wider discussion on the roles of the Ouvidorias).
Both legislative bodies at the federal level have effectively designated the SIC to a specific person or unit (Chamber of Deputies[98]) (Federal Senate[99]), whereas some of the judicial bodies, such as the STJ and the Superior Electoral Court (Tribunal Superior Eleitoral - TSE) have merged this role with their respective Ouvidoria office (STJ[65]) (TSE[100]). Some branches of the state have also developed their own training materials. This is the case for the Federal Senate which provides courses on legislative transparency (Federal Senate[101]).
However, few subnational governments have currently designated a physical SIC. According to data from the EBT 360, 73% of surveyed subnational entities provide the following information on their official website: address, telephone and office hours. While this does necessarily translate to the existence of a physical SIC, these elements imply that at least a person is in charge of the ATI obligations. The lack of a designated person or unit at the subnational level is often related to a lack of enforcement, of incentives and/or of awareness for doing so. In general, complying with ATI obligations can be perceived as an administrative burden, which can lead to slower response times or weaker quality. This is particularly the case for municipal governments in Brazil, who often have limited resources in general and even more to implement their ATI obligations. For instance, not all of the physical SICs have adopted the Fala platform, as mentioned above. Moreover, while 92% of subnational entities responding to the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions declared having a dedicated form online for making requests, not all municipalities have developed their own electronic system to facilitate online requests. An analysis from the FGV found that municipalities were more responsive to ATI requests when they had designated an ATI unit (Michener, Contreras and Niskier, 2018[45]).
According to the responses to the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions, 55% of federal government institutions and 62% of subnational governments reported the lack of staff and/or financial resources as one of the main challenges to implement ATI provisions (Figure 7.9). This finding was confirmed during the fact-finding mission, where several bodies recognised facing difficulties in terms of resources and capacities. Institutions usually do not receive additional resources to implement the ATI law and thus face the financial burden of training and building internal capacities to comply with their ATI and open data obligations. As each body has the flexibility of assigning the person(s) in charge, the profiles vary across bodies and, in many cases, people do not have the necessary skills or training. In fact, 42% of federal government institutions as well as the Chamber of Deputies and the Senate, also mentioned the lack of training and guidance for public officials as a relevant challenge. As also mentioned in Chapter 3 on the broader open government agenda, this points to the need to professionalise the role of ATI officers with the necessary skills and training for both proactive and reactive disclosure (for example, on information management or on data privacy regulations). In terms of staff and financial resources, the government could aim to increase the number of officials solely in charge of ATI. In addition, skills need to reinforced, to do so the government could include key competencies and knowledge for proactive and reactive disclosure of information and data in a dedicated competency framework, a code of conduct. Alternatively, the government could consider creating a specific job profile for the SIC position. This could professionalise the career of public officials working on ATI.
Figure 7.9. Main challenges in implementing the access to information law at different levels and branches of government
Note: Responses were provided by 33 federal bodies, 3 representatives of other branches of government at the federal level (Chamber of Deputies, Senate and Judiciary), and 13 subnational governments (9 states, 4 municipalities).
Source: OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions
Increasing capacities by expanding ATI training for public officials at all levels of government
The CGU facilitates several capacity-building activities and materials on open government, including ATI, to federal government institutions, as discussed in Chapter 4. For instance, it has published a series of guides, manuals and guidelines related to the ATI Law to help federal public officials working in SICs. These materials are updated frequently and cover several key topics, such as using the Fala platform and disclosing proactive information (Federal Government of Brazil[102]). Through the ENAP, the CGU indirectly provides courses on ATI and related transparency topics (ENAP[103]). Another relevant example is an annual training organised for public officials called the SIC Network (RedeSIC) for all levels and branches of government, including members of the media, academic experts and civil society organisations. Created by the CGU in collaboration with the Ministry of the Economy in 2014, the Network aims to promote cooperation and exchange of information knowledge and experience among the SICs and foster mutual assistance (Federal Government of Brazil[104]). According to the fact-finding mission, these trainings have contributed to increase capacities at the subnational level. The CGU could consider expanding the existing SIC Network to propose more frequent thematic and regional workshops to build capacities and exchange good practices. Additionally, the SIC Network could become a formalised body under the umbrella of the Open Government Network recommended in Chapter 3 to allow a permanent exchange of ideas and experiences among ATI officials. The Network could also be used to build internal awareness to sensitise public officials on the importance of transparency in policymaking, while disseminating the existing guidelines and manuals to incentivise the uptake of the national ATI law.
In response to the capacity challenges at the subnational level, the CGU created the TIME Brazil programme that is discussed in Chapter 4 and that includes a transparency dimension. To adhere, subnational government have to 1) conduct a self-assessment of their level of maturity on each dimension according to a matrix; 2) designate a working group to monitor implementation; and 3) sign a high-level adhesion to the programme (CGU[105]). In terms of transparency, the matrix measures how governments regulate and implement proactive and reactive provisions of the national ATI law. Once a subnational government has adhered, the CGU provides guidance and technical assistance. On transparency, for instance, the CGU helps in terms of regulating and implementing the national ATI law as well as with guidance to comply with the obligations (CGU[106]). Further efforts should be made to encourage the appointment of a person or unit in charge of the ATI law within subnational governments. Through the PBT and the TIME programmes, the CGU could provide additional training and capacity building to increase compliance and implementation of the national ATI law at this level. The CGU could leverage good practice cases of municipalities from the TIME programme to motivate others to adhere to this initiative. When facing a similar challenge for ATI and open government implementation at the subnational level, the government of Colombia conducted a territorial transparency strategy to build capacities and expand the knowledge-base of existing mechanisms and tools (Box 7.9).
Box 7.9. The Territorial Transparency Strategy of Colombia to increase ATI and open government capacities
The Territorial Strategy is an initiative led by the Secretariat of Transparency of the Presidency of the Republic of Colombia that seeks to provide technical assistance to public entities at the territorial level, to strengthen their capacities on issues related to the promotion of transparency and the effective fight against corruption. The Strategy is aimed at public officials of 18 departmental governments and 11 prioritized municipal mayors. This Strategy was created to:
Improve the institutional capacities of territorial entities in matters of transparency and the fight against corruption, recognizing the challenges of their contexts
Strengthen knowledge on existing mechanisms and tools that seek to mitigate corruption and promote a culture of transparency.
The Territorial Strategy provides technical assistance in the form of training, awareness-raising and technical tables on topics related to: Open Government, the Law of Transparency and Access to Public Information, Anticorruption and Citizen Service Plan, Social control, among others.
Adequate monitoring and evaluation mechanisms are needed to measure the relevance of ATI provisions
Developing adequate mechanisms for monitoring and evaluating the implementation of any policy and practice relating to open government initiatives and practices is crucial, as further discussed in Chapter 4. For transparency, and access to information in particular, robust data and statistics on the number of requests, the topics requested, the average time of response, the reasons for denial/refusal, among others, allows countries to identify challenges, bottlenecks and specific needs for information. For instance, 40% of OECD countries, like Australia and Portugal, require public institutions to proactively publish information that has been recurrently requested. This measure can help ease the administrative burden of ATI requests, saving time and resources to the public administration in the future. Evaluation in particular makes it possible to predict the law’s impact upstream (ex ante), to adjust its provisions as they are implemented (in itinere) and to determine whether they should be continued, abandoned or corrected (ex post). Ultimately, monitoring and evaluation helps to improve the quality of public debate and to restore the legitimacy of public action by basing discussions and choices on facts and analysis (Conseil d’État, 2020[108]).
In Brazil, the national ATI law calls all bodies subject to the law to submit periodic reports on compliance. It also requires the designated body at the federal level, the CGU, to submit an annual report to the National Congress on the implementation of the law at the level of the federal government. The CGU monitors the application of the national ATI law in federal bodies through a series of measures (see also Chapter 4 for the CGU’s role in monitoring and evaluating the wider open government agenda). First, it centralises ATI statistics based on data extracted from Fala. This data is then published in the ATI Panel. As aforementioned, it allows for a comparison of compliance between public institutions and provides up-to-date data in an easy and interactive way. The available data covers not only the total number of requests, but also the topics requested, the profile of the requesters, appeals, and compliance to proactive transparency obligations. Second, the CGU conducts a compliance assessment of proactive and reactive provisions as well as open data obligations of all federal ministries (QualiLAI) (Federal Government of Brazil[109]). Third, the CGU monitors the total number of omissions to the ATI obligations by federal bodies (Federal Government of Brazil[110]). As noted in Chapter 4, monitoring of open government policies and practices in Brazil is quite advanced, and this is also the case in the field of access to information. Monitoring efforts have been crucial in measuring ATI compliance and progress over time. As also noted for the wider open government agenda, further efforts are needed to increase the use of evaluations to better understand the underlying causal mechanisms leading to success or failure of the ATI law.
Furthermore, in general terms, the branches of the state do collect relevant data to monitor compliance. The Chamber of Deputies publishes yearly reports with relevant ATI statistics (Chamber of Deputies[75]) and also monitors the use of proactive disclosure by measuring the most accessed pages and used Application Programming Interfaces (API). Some judicial bodies collect ATI data on compliance and publish yearly reports with statistics, such as the TSE (TSE[100]). The Senate also collects data and publishes relevant yearly and monthly statistical reports on ATI requests as well as a yearly analysis of ATI implementation and the challenges faced (Federal Senate[76]). Certain autonomous bodies, such as the MPF, publish yearly reports of their Ouvidoria activities, including ATI requests (MPF[111]).
However, since there is no national standard for ATI reports, the statistics on the use of ATI found in certain branches and at the subnational level vary. A study from the FGV found important gaps in the provision of such data. Some years are not reported or data is limited (for instance, only provide the number of requests received) (Schwaitzer and Michener, 2020[87]). The EBT initiative from the CGU helps counter the gap of official statistics in states and municipalities. While it does not measure the number of requests nor does it cover all subnational governments, it does provides a representative picture of compliance at the subnational level. The analysis of this data can help policy-makers further understand the drivers for implementation and identify challenges and incentives that may help increase compliance in the future.
The elaboration of a unique template for periodic reports that could be integrated into the Fala platform to subnational governments could be provided by the CGU. This could facilitate the reporting obligations from subnational governments, while also facilitating standardized data across levels of government that could be analysed in the future. In parallel, to improve monitoring capacities in subnational governments, the CGU could continue its efforts to increase the use of Fala through the TIME Brazil Programme. Using Fala can enable the collection and publication of ATI monitoring data by states and municipalities. The CGU could also dedicate further efforts to the evaluate the current available data to find trends, good practices and challenges to better understand the underlying causal mechanisms influencing success or failure of the ATI law. The publication of such an evaluation could be a powerful communication tool portraying government commitment and progress on implementation. For instance, Italy conducted an evaluation to measure progress and implementation effectiveness to the ATI law using monitoring data and surveys (Box 7.10).
Box 7.10. Evaluation of Italy’s access to information law
The Italian Department of Civil Service conducted an evaluation to measure progress to the ATI law for the 2017-2020 period. Using yearly monitoring data and on-line surveys for relevant public officials, the reported analysed ATI requests received by Ministries and the Presidency of the Council of Ministers. It measured several aspects of the law, including number of requests per ministry, the timeliness of responses and the appeals process. Ultimately, the evaluation led to a better understanding of the implementation effectiveness of the ATI law.
Source: Italian Department of Civil Service (2020[112]), Monitoring on the implementation of the FOIA 2017-2019, https://foia.gov.it/osservatorio/monitoraggio/articolo/monitoraggio-sullattuazione-del-foia-2017-2019
There is a need to raise awareness on the importance and the benefits of the ATI law
The awareness of citizens and stakeholders to uphold their ATI right is essential. They need to know about the existence of the law, the process to file a request, the possibility to appeal, etc. For example, some citizens do not know to which public institution they should ask for information. In several countries and subnational governments, an ‘information culture’ is not fully established as citizens still retain, rightly or wrongly, an image of the administration shrouded in a culture of secrecy. In those cases, governments often struggle to put in place the necessary measures to increase awareness and encourage the use of ATI by citizens. In order to counter the lack of awareness, some countries provide guidelines and/or trainings, such as Colombia and Ireland. Others conduct public communication campaigns on ATI, such as Australia, Estonia and Mexico.
Brazil has made efforts to raise non-public stakeholders’ awareness on the importance and existence of the national ATI law. For instance, at the level of the federal government, the CGU disseminated videos presenting, in simple language, aspects of the law, such as where and how to request information, how to proceed in the event of denial of access (CGU[113]), as well videos on how to use the Fala Portal (CGU[114]). Fala also includes a dedicated section aimed at stakeholders. This section includes step-by-step infographics for requesting information (Federal Government of Brazil[115]) and a manual for guiding citizens to register requests, monitor compliance with the response deadline, consult the responses received, file appeals, present complaints, among other actions (CGU, 2020[116]). Other actions have included the use of social networks on the right to ATI published by the CGU and relevant ministries (CGU[117]) as well as in-person trainings on proactive and reactive disclosure with media and civil society. In addition to the activities of the SIC Network aforementioned, the CGU conducted a workshop on transparency tools (Fala, transparency portal, ATI law, open data portal, etc.) in the last editions of the International Congress of Investigative Journalism of the Brazilian Association of Investigative Journalism (Abraji) (CGU, 2017[118]). During the COVID-19 pandemic, the CGU participated in a webinar event led by Abraji to discuss “8 years of the ATI law: transparency in quarantine”, with representatives of civil society organizations (Abraji, 2020[119]).
While these are important measures that should be continued and expanded, they are targeted only to information pertaining to federal government institutions and to a certain population profile. In a country of continental proportions like Brazil, where only 70% of the population have access to the Internet (World Bank[120]), ATI may be limited for under-represented and marginalised groups, such as indigenous populations. The inexistence or little publicity of the use of physical channels to make a request, in particular in SICs at subnational governments, also represent an obstacle for certain groups of society (Regional Alliance for Freedom of expression and information, 2019[78]).
In fact, responses to the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions showed the lack of awareness of the public (58% of federal bodies, the Chamber of Deputies and the Judiciary and 77% of subnational governments) and the lack of training and guidance for citizens (33%, and the Judiciary and also 77% of subnational governments) as important challenges in the implementation of their ATI obligations. Several factors can help explain these challenges. First, trust in government is low in Brazil (17% compared to 34% in LAC and 45% in OECD countries (OECD, 2020[121])) affecting the perception of the information received by stakeholders either proactively disclosed or upon request. In fact, during the fact finding mission, stakeholders pointed out they are not fully confident that they can obtain trustworthy information or are suspicious of its veracity, timeliness and relevance. Second, a culture of secrecy persists in some public bodies, as confirmed by several public institutions during the interviews. Third, the media who typically play an important role in using the ATI law in other countries, do not make as much use of the national ATI law in Brazil. According to Fala, only 1% of requests at the federal level were made by media organisations (CGU[68]). This may be due to an unfavourable climate towards journalists, as the World Press Freedom Index ranks Brazil 111 from 180 countries6 in 2021 (RSF[122]). Last, the existing awareness-raising campaigns, described above, call on the need to better communicate with a wider variety of stakeholders beyond the “usual suspects” through multichannel mechanisms.
Building on existing efforts, the federal government could host seminars and discussion groups for all age groups in society to raise awareness on the importance and the potential impact of the ATI law. In light of the moderate internet penetration rate and uneven digital literacy levels across the country, multichannel mechanisms should also be considered to counter the existing digital divide. Efforts should be made to raise awareness of ways to file a request and on existing instruments and tools to file complaints in case the information found shows government malpractice. These seminars and communication strategies could be organised through the SIC Network and conducted by each SIC representative in order to reach a wider audience. In regards to the media, the government could consider conducting consultations with diverse news outlets beyond the most prominent media organisations to facilitate understanding of what information would be of value and in what form. Building strong relationships with a diverse range of journalists, civil society organisations and academics can help all actors be aware of the types of information available and explore ways to publish it in a relevant and accessible manner. For instance, the Council for Transparency in Chile conducts several seminars, guides and consultations for a wide range of stakeholders and Article 19 in Mexico City created a board game to teach citizens about their right to access information (Box 7.11).
Box 7.11. Awareness-raising campaigns on the right to access information in Chile
The Council for Transparency (CPLT) is an autonomous body with legal personality and its own assets, created by the Law on Transparency of the Public Function and Access to Information of the State Administration in Chile. As part of its mandate, it conducts several initiatives for a wide range of stakeholders to raise-awareness on the access to information law. It conducts regular seminars on diverse topics related to ATI, including a week of transparency held yearly, as well as workshops on transparency during the COVID-19 crisis and on the importance of the protection of personal data, among others. The CPLT also holds discussion groups and consultations with civil society on diverse transparency topics and publishes infographics, videos and manuals on how to use the ATI law.
Using board games to teach citizens in Mexico City about their right to access information
Article 19 in Mexico City created a board game called “Your right to know”, with the aim to help civil society, journalists and activists learn how to use ATI laws to guarantee their rights, acquire knowledge and challenge governments and institutions on key issues. It has been highly successful in Mexico city and is widely disseminated by the Mexican National Institute for Transparency, Access to Information and Personal Data Protection (INAI). The game covers practical modules on how to create and submit a request, relevant institutions involved in the process, the types of public information that exist and the processes for appeals.
Reinforcing a culture of transparency in Brazil
Beyond information disclosure, transparency mechanisms can also include policies that enable a two-way relationship with stakeholders encouraging more accountability and participation by opening the decision-making process and the actions taken by public officials at every stage of the policy cycle (Cucciniello et al., 2014[126]). This broader approach to transparency builds upon the first generation of policies focused on information disclosure, towards more mature transparency initiatives that place citizens and stakeholders at the centre and enable the analysis of government policy-making as it happens (Janssen et al., 2017[127]). This second generation of transparency policies use its instrumental value to achieve other policy objectives (i.e. transparency in budgeting to decrease corruption) and to contribute to value co-creation with stakeholders.
In practice, using transparency as an enabling mechanism for opening the policy process requires creating a two-way relationship with stakeholders. This involves both one-way forms of communication, such as communicating key reforms and policies and their expected outcomes and impacts including the proactive disclosure of government information and data, as well as transactional communication, which focuses on gathering feedback on policies, consultations, and public hearings and encouraging dialogue throughout the process of designing and delivering public services and policies. This requires governments to foster more active transparency by facilitating the analysis of government policy-making as it happens.
This is even more relevant given the rise of new technologies, as stakeholders become both users and providers of information through online platforms and consultations. In addition, new channels of communication provide innovative ways for stakeholders to participate and be engaged in public life. In that context, the rise of platform technologies has the potential to complement, expand and improve transparency mechanisms in the public decision-making process. Not only can they reduce administrative costs and procedures, but they can also help reach other segments of society and build new channels of continued communication with stakeholders.
Using targeted transparency measures to further engage with stakeholders
Targeted transparency is defined as “the use of publicly required disclosure of specific information in a standardized format to achieve a clear public policy purpose” (Weil, Graham and Fung, 2013[128]). This transparency mechanism uses disclosure as a means to attain or improve other policy objectives, for example, for decreasing violence among youth or preventing overweight. Moreover, it is conceived to achieve a specific result that is accompanied with a behaviour change from the target population, for example, improving a specific public service, reducing the risk of health issues, or improving the performance of schools. It therefore implies the need to translate the purpose of a public policy into the realities of the specific target population by taking into account their needs and expectations (Dassen et al., 2012[129]).
In Brazil, there are increasing initiatives from public institutions to make information and data useful for citizens. As shown in Figure 7.10, 73% of federal bodies that responded to the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions made efforts to improve the comprehensibility of information. For instance, some have added simple language requirements to the information published on their websites (e.g. the Ministries of Infrastructure and of Women, Family and Human Rights), or have published glossaries or dictionaries on technical terminologies, as done by the Federal Highway Police (Federal Highway Police[130]) and the Ministry of Science, Technology and Innovation. The TSE, from the federal judiciary, created a website for electoral justice that also uses simple language (TSE[131]).
Moreover, 58% of federal bodies and 46% of subnational governments conduct user consultations to understand needs. For instance, the Casa Civil and the Ministry of Justice and Public Security consulted stakeholders on open data needs (Open Data Portal, 2019[132]) (Participate + Brazil, 2020[133]). The Chamber of Deputies also integrated feedback from stakeholders to improve the usability of its portal created in 2019 (Chamber of Deputies, 2019[134]). Another 45% of federal bodies and 69% of subnational governments make efforts to improve accessibility of information. Some examples include the classification of information by thematic areas, as done by the National Supplementary Health Agency and by the National Telecommunications Agency (Anatel).
Figure 7.10. Initiatives taken at different levels and branches of government to ensure that the information and data is relevant and used by stakeholders
Note: Responses were provided by 33 federal bodies, 3 representatives of other branches of government at the federal level (Chamber of Deputies, Senate and Judiciary), and 13 subnational governments (9 states, 4 municipalities).
Source: OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions.
As Figure 7.10 shows, most federal bodies (73%) and subnational governments (85%) undertake innovative ways to communicate in order to ensure that the information proactively published is relevant and used by citizens. Some examples of such initiatives include the Regulatory Agenda of Anatel. The Regulatory Agenda is an online tool that seeks to provide greater publicity, predictability, transparency and efficiency to the regulatory process and allows stakeholders to monitor the commitments pre-established by the regulatory body (ANATEL, 2021[135]). The dynamic panels elaborated by the National Agency for Petroleum, Natural Gas and Biofuels (ANP) use a business intelligence tool that allows stakeholders to view updated data on the main activities regulated by the ANP (ANP, 2020[136]).
Other levels of government and branches of the state also have relevant examples in this regard. For instance, the Chamber of Deputies has developed infographics to explain the legislative process (Chamber of Deputies[137]) and the TSE, from the federal judiciary, conducted a communication campaign regarding fake news in the electoral process (TSE[138]) and developed a WhatsApp automated chatbot to allow stakeholders to ask questions related to the elections (TSE[139]). Another example of the public services portal elaborated by the State of Santa Catarina, which provides a single entry point for citizens with information regarding the purpose of the service, the documents or requirements necessary to obtain it, the steps to follow, the length for a request, the service's website, the nearest providing units location, as well as the legislation governing it (Government of the State of Santa Catarina, n.d.[140]). These represent important efforts in harnessing the use of transparency in policy-making to achieve greater awareness and engagement in public policies. However, these initiatives are mostly made on an ad hoc basis and are not usually aligned to achieve specific policy objectives. For instance, efforts to improve comprehensibility of information are limited to a specific initiative, rather than adopting a simple language approach for all policies and strategies.
The existing transparency mechanisms in sectoral policies contribute to build a more robust open government
Brazil also implements transparency mechanisms in sectoral policies such as budgeting, procurement, health, education, among others. As mentioned in the section on proactive disclosure, most of these initiatives are in place to comply with the legal or regulatory obligations (including the national ATI law). Some public bodies have gone beyond to develop additional tools that not only facilitate the access and the use of public information and data, but also provide avenues for stakeholders to monitor government actions, to provide feedback, to file complaints and to engage in policy processes. Ultimately, by encouraging more accountability and engagement, transparency mechanisms enable a two-way relationship with stakeholders in sectoral policies. In doing so, they contribute to consolidate transparency as a means to attain other policy objectives and build a more robust open government ecosystem.
A noteworthy example is Brazil’s transparency mechanisms in budgeting The Ministry of Economy developed the “Platform + Brazil”, which is an integrated and centralized tool aimed at computerizing and operationalizing the transfer of resources from the Federal Tax Budget and Social Security to a state, district, municipal, direct or indirect public administration body or entity (Government of Brazil[141]). These efforts have earned Brazil the score of 81/100 in the Open Budget Survey conducted by the International Budget Partnership (IBP). This score is significantly higher than the global average (45) and reflects the country’s efforts to disclose budget information in line with international best practices in terms of availability, timeliness, and comprehensiveness (IBP[142]).
The Ministry of Economy also developed a “Purchasing Panel” (http://paineldecompras.economia.gov.br/), which allows citizens to access and monitor information and data related to the entire cycle of the public procurement process at the federal level (Ministry of the Economy[143]). Similarly, the Ministry of Health developed a dashboard to monitor the resources allocated to health issues, both in terms of income and expenditures within the scope of the Union, States, Federal District and Municipalities, named “SIOPS” (Ministry of Health[144]), as well as a dashboard that provides data on health indicators and other related health issues called “Tabnet” (Ministry of Health[145]). A final example worth noting is the application “Click School” developed by the Ministry of Education to facilitate and encourage the access to the main educational and financial information of schools (Government of Brazil, 2020[146]). To illustrate how tools, such as Click School, can be used by stakeholders for creating public value it is worth mentioning the QEdu platform. Created by non-government stakeholders, the QEdu platform uses open data from the Ministry of Education to show the performance of students by state-municipality-school in a user-friendly way (QEdu[147]). According to interviews during the fact-finding mission, the platform is widely used by both public and private stakeholders interested in education policies.
Building on all the ongoing initiatives and the parallel efforts to develop a Transparency Policy at the federal level (see above), the CGU could integrate the perspective that transparency policies, including access to information, proactive disclosure and open data, should be demand-driven. This would require establishing a comprehensive approach towards targeted transparency with mechanisms that, on the one hand, provide and communicate information and data in a way that is relevant and can be used by stakeholders. Conducting consultations with stakeholders to ensure that these mechanisms are user-friendly is key to ensure their usability. On the other hand, these mechanisms should also allow stakeholders to monitor government action in a systematic way with avenues to file complaints, gather their feedback, and engage throughout the whole policy cycle. Encouraging more accountability and engagement can enable a two-way relationship with stakeholders in sectoral policies. A relevant example in infrastructure and procurement processes is the platform to monitor public tenders and works in Buenos Aires, Argentina (Box 7.12).
Box 7.12. The Buenos Aires Obras initiatives for transparency and monitoring of public services
As part of the Open Government Ecosystem of the City of Buenos Aires, the Buenos Aires Obras (BA Obras) is an online platform in open format that provides geo-referenced and visualized information on the public tenders and works carried out by the City Government. For each public work, the platform offers a technical sheet with 30 indicators that are updated every four months. The indicators measure different aspects of the work, including the location, budget, the company in charge, the number of workers it employs, the expected execution period, photos of the work, progress on implementation, and direct access to the contract specifications. The information is updated every four months.
The platform includes different communication channels to increase awareness and usability by stakeholders. These channels include meetings organised by commune to show the largest public works in the area as well as the existence of the portal for monitoring their progress. There are also communication initiatives in specific communities using flyers, banners and other materials to raise awareness as well as a chatbox that can solve citizens queries related to city procedures, complaints and requests for information.
BA Obras seeks to increase transparency in the administration through real-time monitoring of public works carried out by the government, with updated and structured data in accordance with international transparency standards, integrated reporting, and with a clear and organised updated frequency. Finally, BA Obras is an “open source” initiative in that its software can be used for free to create new platforms. Currently, several cities in Argentina and in Latin America have created their own portal based on the BA Obras open code.
Source: (Government of the City of Buenos Aires, n.d.[148]) “BA Obras”, http://www.buenosaires.gob.ar/baobras; (Government of the City of Buenos Aires, n.d.[149]) Community of open works (Comunidad de obras abiertas), https://www.buenosaires.gob.ar/agendadetransparencia/gobierno-abierto/ba-obras/comunidad-de-obras-abiertas.
Recommendations
1. Strengthen the existing legal, policy and institutional frameworks for transparency.
Continue with the creation of the Transparency Policy by integrating access to information, open data and other transparency related-elements into a single decree to provide the needed coherence among regulations and obligations to federal government institutions.
Consider integrating the Transparency Policy into the Open Government Strategy, recommended in Chapter 3, to fully integrate the transparency agenda into the wider open government agenda.
Carry out awareness raising campaigns for public officials to move from a control approach into transparency as a new culture of governance that both enables and encourages citizen’s participation in policy-making and service-design and delivery, engages stakeholders in effective monitoring of government actions and prioritizes access to reliable information to identifying counter-measures and promoting open decision-making.
Leverage the use of the Council for Public Transparency and Fight against Corruption by ensuring a wider representativeness of stakeholders in the elaboration, implementation and monitoring of its transparency agenda to go beyond the usual suspects.
In the medium term, as part of the recommended transition towards a fully integrated open government agenda (see Chapters 3 and 4), the Council for Public Transparency and Fight against Corruption could become part of the wider Open Government Council.
2. Ensure the wide scope of application of the national access to information is effectively implemented at all levels and branches of government.
On the short term, continue to foster compliance with the national law through initiatives such as the Brazil Transparency Programme that not only facilitate the adoption of the needed ATI regulatory framework, but also provide implementation support to increase capacities across subnational entities.
In the long term, if the law is reformed, provide further clarity and details to the legal ATI obligations for other levels and branches of government.
3. Improve the reactive disclosure of information.
Continue working towards the creation and implementation of the Transparency Observatory as it could help to address challenges related to the unequal implementation of proactive disclosure provisions across federal public institutions.
Provide additional training and awareness raising activities for federal public institutions laying out the importance and impact of proactive disclosure to increase compliance.
Create a centralised and unique web page mapping all of the existing portals and panels where proactive information is disclosed. This web page could include guiding instructions for users to find the information they need.
4. Strengthen the implementation of reactive disclosure of information and data.
Encourage the practice of protecting the identity of requesters implemented at the federal level to subnational governments by providing the necessary training and awareness-raising for public officials via the PBT to implement it through their respective online platforms.
In the longer term, if the law is reformed, include a clause of anonymity to ensure the protection of requesters at all levels and branches of government.
Increase uptake at the subnational level by providing stronger incentives for adopting the Fala system.
Create interactive guidelines or manuals for citizens and stakeholders on how and where to request government information depending on the type of information. These guidelines or manuals could direct stakeholders towards the relevant branch or level of government responsible for the information.
Advocate to include the possibility of providing the information free of charge if it is deemed in the public interest, or in setting a minimum threshold of pages that can be delivered free of charge in the national ATI law if it is reformed.
Continue efforts to improve the quality and transparency of information provided.
Consider providing more transparency as to how indicators are calculated in terms of the metrics used in the ATI Panel.
Aim to improve the usage of the searchable database of requests and answers through a consultation with end-users.
Elaborate a framework or protocol to ensure ATI is provided during a crisis context.
Consider changing the rules and procedures that govern classification of information so that these are, first, subject to the process of an open consultation, and second, broadly disseminated.
In the long term, consider adding clear public interest and harms tests to help guide public officials in applying exceptions.
In the short term, a manual focusing on simple language as well as trainings for public officials working on the SIC could help guide the application of exemptions.
Continue making efforts to limit the response time at all levels of the appeals process.
Provide more time for requesters to file appeals, ideally, 60 business days for internal and external appeals to ensure that stakeholders have enough time to file it.
Consider changing the composition of the CMRI beyond the executive branch to include stakeholders from other state institutions including autonomous bodies.
Provide the DTC with the authority to issue binding decisions when information should be disclosed by a public body following an appeal.
5. Strengthen access to information oversight capacities for a more effective implementation.
Increase the human and financial resources of both the DTC and the CRG to effectively conduct their mandate.
Require federal government institutions to commit checking pre-defined standards before denying a request, for example in through the Fala platform, to help nudge them towards increased compliance.
In the long term, ensure that the institution with the oversight mandate of the national ATI law has the necessary institutional autonomy and the independence of public officials within the organisation to ensure impartiality of the decisions and the operations.
In the short term, strengthen the capacities of both the DTC and the CRG by increasing their human and financial resources.
Create a special task force between the CGU and the Federal Public Prosecutor in order to increase compliance and enforce oversight of the ATI law at all levels of government and in all branches of the state.
Increase communication and co-ordination among both institutions through a joint task force could increase enforcement by linking the sanctioning power of the Federal Prosecutor with the CGU’s monitoring mechanisms and established leadership.
Strengthen the enforcement capacities of the Federal Public Prosecutor by ensuring it has access to the necessary human and financial resources to effectively deliver on their mandate.
6. Reinforce the information office or officer in each public body to improve implementation.
Increase the number of officials solely in charge of ATI.
Include key competencies and knowledge for proactive and reactive disclosure of information and data in a dedicated competency framework, a code of conduct.
Consider creating a specific job profile for the SIC position. This could professionalise the career of public officials working on ATI.
Consider expanding the existing SIC Network to propose more frequent thematic and regional workshops to build capacities and exchange good practices.
Encourage the appointment of a person or unit in charge of the ATI law within subnational governments.
Provide additional training and capacity building through the PBT and the TIME programmes to increase compliance and implementation of the national ATI law at this level.
Leverage good practice cases of municipalities from the TIME programme to motivate others to adhere to this initiative.
7. Improve monitoring and evaluation mechanisms to measure the relevance of ATI provision.
Elaborate a unique template for periodic reports that could be integrated into the Fala platform to subnational governments.
Improve monitoring capacities in subnational governments by increasing the use of Fala through the TIME Brazil Programme.
Dedicate further efforts to the evaluate the current available data to find trends, good practices and challenges to better understand the underlying causal mechanisms influencing success or failure of the ATI law.
8. Raise awareness on the importance and the benefits of the ATI law.
Host seminars and discussion groups for all age groups in society to raise awareness on the importance and the potential impact of the ATI law.
Consider multichannel mechanisms to counter the existing digital divide.
Raise awareness of ways to file a request and on existing instruments and tools to file complaints in case the information found shows government malpractice.
Consider conducting consultations with diverse news outlets beyond the most prominent media organisations to facilitate understanding of what information would be of value and in what form.
9. Use targeted transparency measures to further engage with stakeholders.
Integrate the perspective that transparency policies, including access to information, proactive disclosure and open data, should be demand-driven.
Establish a comprehensive approach towards targeted transparency with mechanisms that, on the one hand, provide and communicate information and data in a way that is relevant and can be used by stakeholders.
Conduct consultations with stakeholders to ensure that these mechanisms are user-friendly to ensure their usability.
Allow stakeholders to monitor government action in a systematic way with avenues to file complaints, gather their feedback, and engage throughout the whole policy cycle.
References
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Notes
← 1. Costa Rica does not have an ATI law, but provides this right in practice through a presidential decree.
← 2. Analysis based on the RTI country ranking, consulted on 22, June, 2021 https://www.rti-rating.org/country-data/.
← 3. The ouvidorias represent a complex network of offices at both the national and sub-national levels that handle citizens’ requests and demands. Ouvidorias have wide-ranging responsibilities and competences including, but not limited to, “defending the rights of public service users’ before the state, promoting their participation in the processes of formulation and execution of public policies, exercising supervision of the provision of services and receiving complaints and protecting complainants”. See also Chapter 5 on Civic Space, Chapter 6 on Participation, and Chapter 8 on Accountability.
← 4. As per the responses to the OECD Survey on Open Government Policies and Practices in Brazilian Public Institutions. .
← 5. As of the 3rd of August, 2021.
← 6. The World Press Freedom Index ranks 180 countries and regions (from an ascending order) according to the level of freedom available to journalists. It is a snapshot of the media freedom situation based on an evaluation of pluralism, independence of the media, quality of legislative framework and safety of journalists in each country and region. https://rsf.org/en/world-press-freedom-index