observing brazil

Just a very brief update on Brazil‘s new Freedom of Information law (12.527), which took effect on May 16, 2012.

• During its first six and a half months of operation (2012-13), the federal government registered some 51,400 requests.
• The government claims to have answered approximately 95% of these requests.
• 4 of Brazil’s 27 states accounted for  approximately 60% of all requests. (São Paulo, Rio de Janeiro, Minas Gerais, and the Federal District).
• As of January 2013, 15 states had not yet regulated the FOI law, and it is clear that numerous states and cities have not yet implemented the law. The period between legislative approval and activation was just six months.
• FOI audits using a sample of limited requests have produced results that cast doubt of government compliance figures. A team that included FOIAnet member Fabiano Angélico, for example, sent 30 requests to Brazil‘s Federal Public Prosecutor (Ministério Público). Of these, 17 were ignored, and in the case of the 13 remaining requests, authorities admitted to not yet having implemented the law.
• Several FOI audits are underway or planned this year, including one by Article 19 Brazil and one by three departments within the FGV University in Rio de Janeiro.

 A PROMINENT CURRENT EXAMPLE OF THE LAW’S USE

In an article published on February 12, 2013 in the Estado de São Paulo newspaper, jounrnalist Fábio Fabrini used Brazil’s FOI law to audit the handling of fines levied by Brazil‘s regulatory agencies (energy, aviation, telecommunications, shipping, health insurance, and cinema). From 2008 to 2011, R$21 billion ($US 11 billion) in fines were levied, but thus far only 6 % of those fines have been collected. Regulators blame an inefficient legal system that provides multiple opportunities for appeal, whereas other entities blame the poor enforcement attributions of Brazilian regulators.

Analysis of delays of implementing freedom of information law in Brazil, commissioned by Folha de São Paulo – English translation is below pic.

When in November 2011 Brazil approved the right to access public information, it joined the ranks of more than 90 countries that respect the fundamental democratic rights of their citizens. All levels and branches of the Union were required to adopt regulation within six months, by May 16th 2012.  Many entities, however, did not comply. By international standards, this delay is reprehensible but comprehensible; six months is half of what most countries give themselves to implement this important and demanding law. In Brazil, the law is unusually far-reaching; it is not only constitutional, but it also applies to government owned businesses and other entities that receive public money.

All of this still does not excuse non-compliant behavior, however, much less with respect to a law that finally makes good on a right guaranteed by articles 5 and 37 of the 1988 constitution.  When the CGU told citizens that the law “has stuck”[1] in August 2012, they must have never foreseen that eight months after the deadline for implementation, seven states and even The Department of Foreign Affairs (Itamaraty)[2] still stand in contempt of the law, the union, and its citizens.

This behavior is particularly inappropriate for subnational governments, which play a fundamental role in satisfying the most urgent everyday needs of citizens, including education, health, security, and sanitation. In the world’s most advanced democracies, subnational governments perform better on access to information audits than do central governments. They are more accountable. Judging by the CONACIT’s latest report, the inverse holds true in Brazil. If the right to information is to have real value for citizens, this situation must change. To implement the law, states and municipalities must enact regulation to apply the law 12.527, appoint information officers to coordinate and respond to requests, inform all employees of appropriate procedures, put into place information management systems, and comply with both the country’s archive (8159/91) and privacy laws (Lei 9507/97). Only then will we be able to pull the law off of paper and put it into effect.

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[1] http://blogs.estadao.com.br/publicos/lei-de-acesso-pegou-avalia-diretora-da-cgu/

[2] http://www.emtemporeal.com.br/index.asp?area=2&dia=17&mes=01&ano=2013&idnoticia=125355

Click the pic to go to the editorial

Click the pic to go to the Editorial

I did a lot of thinking about impunity in Brazil, and this is part of the result. Click the pic for full piece.

Click on the Pic to follow the link!

A piece I just published with Al Jazeera – click to follow.

Half a year ago I wrote about a historic week, the week of October 23rd. Brazil’s National Congress enacted a freedom of information law and a truth commission — two brave policy advances for a country marked by legacies of secrecy and authoritarianism. Today was a similarly historic day: the freedom of information law and the Truth Commission went into effect. President Dilma Rousseff struggled to hold back tears as she officially convened the Truth Commission.

Tearful Truth Commission Beginnings

A survivor of torture during Brazil’s 1964-85 military dictatorship, Rousseff had until today refrained from emotional displays on the issue. The Truth Commission is not only a politically sensitive topic, but populist appeals for ‘truth’ or ‘revenge’ may rouse the ire of powerful ancien régime elements, giving Rousseff problems inside the Executive Branch and, legislatively, inside Congress. Today, the emotion could not be withheld. The video and an approximate transcript follow:

http://www.youtube.com/watch?v=ecft6ZdGgvE

Brazil deserves the truth, the new generations deserve the truth, and above all, deserving of the truth are those who lost friends and family and who continue to suffer as if they die with every new day (tears and applause).

This is the most dramatic footage I have ever seen of President Dilma, and its authenticity and poignancy will undoubtedly help the President secure even greater popular support. Rousseff enjoys lofty approval ratings of 64 percent, according to the latest DataFolha polls.

Freedom of Information

I have been blitzed by requests for interviews about the freedom of information law lately, and over the last month I have spoken at three government events and been filmed four times. I have decided that I do not much like cameras for now and am beginning to sympathize with politicians who claim that the press often takes statements out of context. An interview I did for the O Globo newspaper misrepresented the interview, portraying solely the negative aspects of Brazil’s freedom of information infrastructure. Nonetheless, these last few months have provided me with a few tentative conclusions regarding the beginnings of Brazil’s freedom of information regime:

1. A lack of awareness and knowledge about the law is generalized, inside and outside of the public administration.

2. Most government officials are well-disposed towards the law, but have not devoted enough resources or attention to its implementation. According to personal government sources, the oversight body — The Comptroller General of the Union — has dedicated a team of 11 to the law. This is a long shot away from serious commitment in a country of two hundred million. Likewise, state and municipal governments are still trying to figure things out, and everyone from archivists, to administrators, to top officials have expressed their unpreparedness. While generalized ignorance and unpreparedness are lamentable, the willingness to be frank about that ignorance and to look for help provide hope.

3. Officials are worried about the “abuse” of the freedom of information law – a very common preoccupation, as any transparency advocate is well aware. This fear is what may also tip officials towards non-disclosure. Government control, whether in the form of encouraging a pliant press or ‘channeling’ participation through corporatist vehicles such as unions and government-civil society deliberative events, is part of the political culture. Freeing information means letting go. Simply put, if Brazil’s freedom of information law is going to work, this political culture must change.

This is a multi-generational project that has finally just begun.