Tag Archives: freedom of information

Historic Day for Truth and Transparency

16 May

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:


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.

Freedom of Information Bill in Jeopardy as Rousseff Backtracks

17 Jun

[Published on http://www.freedominfo.org/news/ by Greg Michener]

President Dilma Rousseff reversed her support for expedited passage of a Brazilian freedom of information law this week, ceding to Senators’ desire to reappraise the law and include weakening amendments. The proposed changes to bill 41/2010 aim to eliminate time limits on how long information can be classified as secret and held from the public. Such amendments would contravene regional and national legal guarantees, in addition to delaying and enfeebling a prospective freedom of information law.

About-face Casts Doubt on Open Government Partnership and International Seminar

The government’s decision is a surprising about-face. Rousseff initially sought enactment of a freedom of information law on May 3rd, World Press Freedom Day. This earlier commitment to transparency coincided with President Barack Obama’s visit and his invitation for Brazil to co-chair the Open Government Partnership, due to be announced at the inauguration of the United Nations in September of this year. While casting doubt on Brazil’s role within this promising initiative, Rousseff’s actions also put into question the purpose of an International Seminar on Access to Public Information due to be held in Brasilia in a month’s time, on the 7th and 8th of July.

Transparency as a Priority?

Brazil is only one of a few remaining countries in the Americas continuing to hold out against a freedom of information law, the others being Argentina, Bolivia, Costa Rica, Paraguay, and Venezuela. Over the last ten years eleven countries in the region have adopted laws, including Panama (2002), Peru (2002), Mexico (2002), the Dominican Republic (2004), Ecuador (2004), Honduras (2006), Nicaragua (2007), Guatemala (2008), Uruguay (2008), Chile (2008), and most recently, El Salvador, in March 2011.[1] Rousseff’s actions, which will delay and jeopardize the integrity of Brazil’s prospective freedom of information law, have led Brazil advocate organizations Artigo XIX, Conectas, and ABRAJI, to issue statements condemning the move.

Bowing to Pressures in the Senate

Rousseff’s decision bows to the wishes of Senate President, José Sarney, and Foreign Affairs Committee Chair, Fernando Collor (1990-92). Both politicians are ex-presidents, Sarney having presided from 1985 to 1990 and Collor from 1990 to 1992, before he was impeached on charges of corruption and influence trafficking. Both Senators are also regarded as transparency-adverse chieftains (coronels) from poor northeastern states, where they exercise enormous political and economic control. Senator Sarney justified his adherence to the current policy of “eternal secrecy” (sigilo eterno) by explaining: “Lately, all of us have been beating up on our country. Let’s embrace the country and preserve what it has. We won’t open up those wounds from the past, from our history.”[2]

Senators Collor and Sarney

The reversal represents an apparent effort to maintain the coherence of Rousseff’s majority coalition in the Senate, placating powerful leaders. But President Rousseff’s compromises are also causing internal frictions within her own party. The leader of the President’s Worker’s Party (PT) in the Senate, Humberto Costa, told the Folha de São Paulo newspaper, “the PT does not agree with changes to the project, because it is not in favor of eternal secrecy.” Any changes in the Senate would then need to be approved in the Chamber of Deputies before a law could be passed. Rousseff has made calls to set the bill aside for a few months, which suggests the law may not be passed until late 2011 or even 2012, going into operation a year later– almost too late to scrutinize infrastructure projects now underway for the World Cup (2014), the Olympics (2016), and Brazil’s aggressive hydro dam projects.

Eternal Secrecy Contravenes Regional and National Law

If the proposed weakening amendments are successful, they will snub the Organization of American States’ 2010 Inter-American Court’s decision, Gomes Lund v. Brasil (2010), which mandates that Brazil open all information relevant to the investigation of human rights abuses. It also runs contrary to the creation of a Truth Commission, a measure now being debated in the Lower House of parliament. Finally, eternal secrecy stands in contravention of Brazil’s 1988 Constitution, articles 5 and 37, both of which guarantee the right to access public information.

[1] For more information on the conditions that led to enactment of these laws, see http://gregmichener.com/Dissertation.html

[2] “Ultimamente, todos nós nos acostumamos a bater um pouco no nosso país. Vamos amar um pouco o país e preservar o que ele tem. Não vamos abrir essas feridas do passado, da história.” Reported by the Globo Newspaper, 14 June, 2011. Available at: http://g1.globo.com/politica/noticia/2011/06/nao-podemos-fazer-o-wikileaks-da-historia-do-brasil-diz-sarney.html

A Freedom of Information Law in Brazil: Two Steps Forward, One Step Back

18 Apr

Article written for freedominfo.org, a site curated by the D.C. based National Security Archive,  18 April, 2011: http://www.freedominfo.org/2011/04/rousseff-praise-brightens-outlook-for-brazilian-foi-bill/

Heartening events and significant setbacks added more drama to Brazil’s bid for a freedom of information (FOI) law this past week, but the overall outlook is considerably more promising now than before.

Heartening Events: President Rousseff Declares Support for FOI bill

President Dilma Rousseff confirmed her support for the FOI bill, (41/2010), which was approved by the Chamber of Deputies in April 2010 and has since been awaiting passage in the Senate. This is the first time that President Rousseff has publicly expressed support for the law since taking over from President Luiz Inácio Lula Da Silva in January, 2011. Bandwagoning on the President’s commitment, the media has begun to cover the issue with greater enthusiasm— a positive development for fostering much needed public awareness.

Brazil and the Open Government Partnership

The timing of the announcement coincides with U.S. President Barack Obama’s recent visit and an invitation to join an ‘Open Government Partnership,’ an effort that will include more than 70 countries. The Open Government Partnership was established last year with India’s Prime Minister Dr. Manmohan Singh and is expected to be announced at the opening of the United Nations in September of this year.

President Rousseff has set May 3rd, World Press Freedom Day, as the target date for enactment. At just over two weeks from now, this appears to be an excessively ambitious time horizon—barring some creative legislative maneuvering.

Significant Setback: the Unconstitutionality of Brazil’s FOI Bill

A second event of interest was the recognition of the FOI bill’s unconstitutionality last week in the Senate. Article 35 of the bill mandates the establishment of a ‘Mixed Evaluative Commission,’ to be composed of representatives of the Legislative, Executive and Judicial branches of government, to be responsible for deliberating on issues of classification. The problem is the Commission’s multi-branch composition, which apparently contradicts Article 2 of the 1988 Constitution: the three branches of government must be ‘independent’ of each other.

Why this issue was not discovered earlier, and debates of constitutional interpretation aside, nothing short of legislative wizardry will be required to pass the bill within the next two weeks let alone the next two months. The crux of the issue is that the lawmakers may have to amend the bill, sending it back to the Chamber of Deputies for re-approval and then once again to the Senate.

What makes things even more complicated is the feasibility of rushing legislation in a Congress stacked with ‘urgent’ executive orders (medidas provisorias), which have constitutional priority. Presidents tend to dominate the legislative agenda in Brazil with their urgency decrees. To place the FOI bill ahead of these urgent measures will require some adroit stage management.

Legislative Acrobatics?

Three work-arounds have been suggested. First, the Senate ‘arranges’ the text without amending it, obviating the need for re-approval in the Chamber of Deputies. The meaning of this sounds as mysterious as it seems. A second suggestion is to pass the law as is, and have President Rousseff line-item veto the unconstitutional clause, surgically removing undesirable parts. But this option again presents a constitutional dilemma: congressional passage of an unconstitutional law. The most likely scenario will see 41/2010 return to the Chamber of Deputies.

The question is whether Congress is willing to perform the legislative acrobatics needed to meet the President’s goal of a May 3rd enactment. Although the President’s PT party controls wide majorities in both Chambers, its coalition is not one hundred percent reliable. What’s more, the leader of the Senate is former President José Sarney of the PMDB party, who is not likely to pander to Rousseff’s every whim. While the PMDB is the President’s principal ally, it is better known for its commitment to pork-barrel politics than transparency.

These, in short, are the legislative dilemmas currently facing the FOI bill that has been in Congress since May 2009. What is heartening in all of this is the President’s newly stated commitment. With strong control over both chambers, government should succeed in passing a FOI law— at some point.

Replacing a Truth Commission with a FOI Law

In 2000, Mexico’s President-elect Vicente Fox promised a Truth Commission to address human rights atrocities committed during Mexico’s Dirty War, from the 1960s to the early 1990s. But Fox cancelled the Commission because he needed support for his signature reforms in Congress and sought the legislative cooperation of the PRI, the party that had presided over previous decades of abuse.

A similar bait-and-switch may be happening in Brazil. The Brazilian military and the Department of Foreign Affairs (strongly connected to the former) have been the most salient resisters of greater transparency, let alone a Truth Commission. Yet establishing a Truth Commission to reconcile abuses committed during Brazil’s 1964-85 dictatorship was one of President Rousseff’s campaign promises, and the wheels of said Commission were set in motion soon after she took office. Over the past few weeks, however, consideration of the commission has come to a standstill in Congress.

While Rousseff may just be putting the Commission on the backburner for the moment—it boasts a rather narrow constituency of supporters—it could also be possible that Dilma Rousseff will accept a dead-letter Truth Commission if military resisters yield to a FOI bill. On April 4th 2011 Foreign Affairs stated its preference for the FOI bill originally introduced into Congress in May 2009, which has since undergone considerable strengthening improvements. This was grim news, because the Senate Foreign Affairs Committee has yet to approve the FOI bill, and any change or rejection would send the bill back to the Chamber of Deputies. President Rousseff’s public commitment to a FOI bill and the quiet withdrawal of her pressure for a Truth Commission may be one of the FOI bill’s saving graces.

An Example of Brazil’s Need for Greater Transparency

The FOI bill in Congress is the first step to a fiscally stronger Brazil. On March 30th 2011, the lead opinion piece of O Globo newspaper reviewed a 2003 report by the Comptroller General on federal funds misappropriated by municipal government officials – approximately $60 billion reais annually, about the size of Uruguay’s GDP. It is of little surprise that Brazil has the highest tax-to-GDP rate in the western hemisphere, over 35 percent.

Legislative reforms such as the FOI bill currently stalled in Congress are the first step towards the type of monitoring that can help reduce corruption, put the country’s tax dollars to better use, and ultimately lead to a more reasonable tax burden. Government auditors are insufficient for the monitoring task at hand; the scope of the problem is too large and using auditors for enforcement is expensive. The media and citizens need to lead, and greater public sector transparency is a key precondition for effective oversight. The prospective passage of a freedom of information law will finally give Brazilians one of the tools they need.

Published at Brazil in Focus: Brazil needs a Tax Break

13 Apr

See the article, published on 12 April,  Brazil in Focus

During a recent gathering of industrial leaders in Rio de Janeiro, Eliezer Batista da Silva mused that Brazil has the “taxes of Sweden and the services of Angola.” It’s an old saw, but it gained an extra bite in the mouth of Batista, a founder of the multinational mining conglomerate Vale and the father of Brazil’s richest man, energy mogul Eike Batista.

While the elder Batista’s jab may sound like hyperbole, the comment fell on sympathetic ears at Rio’s Industrial Federation, FIRJAN. Tax reform is the business community’s top priority. And if anyone doubted the point, FIRJAN launched an aggressive television and media campaign – the big tax diet – in the run up to the 2010 elections.

The case for reform is well taken. Brazil has the highest tax-to-GDP rate in the western hemisphere, over 35 percent. Worse, Brazilian taxes are so numerous and their codes so complicated that experts say the system encourages informality (hence, tax evasion), discourages innovation, and retards Brazil’s development beyond commodity-based production. There has been no scarcity of proposals to fix the tax system over the years, but most have run into political roadblocks. The principal problem is resistance from federal, state, and municipal governments fearful that any reform, one way or another, will cost them tax receipts.

If the business community wants to make a compelling case for tax reform, the first step should be to shine a light on how government could be saving or allocating resources more efficiently— how they could be doing better with less.

It’s not a difficult case to make. On March 30th 2011, O Globo’s lead opinion piece reviewed a 2003 report by the Comptroller General on federal funds misappropriated by malfeasant municipal government officials— approximately $60 billion Reais worth, about the size of Uruguay’s GDP.

The key challenge for the business community, the media, and public policy advocates is to better monitor government spending and due process. Government auditors are insufficient for the task at hand; the scope of the problem is too large and using auditors for enforcement is expensive.

The media and citizens need to lead, but greater public sector transparency is a key precondition for effective monitoring. To this end, Brazil has an important tool in its hand, the sort that insiders call comprehensive transparency infrastructure and what everyone else knows generically as a public information law (PL 41/2010) Introduced by Dilma Rousseff in 2010, when she served as Chief of Staff to former president Luiz Inácio Lula da Silva, the law passed the Chamber of Deputies in April 2010 and only awaits sanction in the Senate.

The law not only provides obligations for the Brazilian government to ‘proactively’ publish information about spending and regulation, but it also mandates that governments disclose copies of most primary documents upon request. This is key because greater transparency means better government.  Ever aware that society may be looking over their shoulder, public sector officials are driven to do their jobs in a more organized, efficient and accountable manner.

In the U.S. and Canada, businesses are the most frequent users of access to information laws, accounting for about 40 to 60 percent of all requests, with media, policy specialists, and citizens making up the remainder. These countries passed freedom of information laws in 1966 and 1983, respectively.

It is time for Brazil to join the vibrant global movement towards openness. Freedom of information is a fundamental human right enjoyed by more than 5 billion citizens in more than 90 countries. Half of these countries have enacted laws within the last decade, including 12 Latin American nations, the latest of which was El Salvador on March 3rd.

Some countries have already moved on to a new stage of openness, providing citizens with aggregate open-format datasets. Examples include the U.S.’ http://data.gov and the U.K.’s http://data.gov.uk. The proposed law now in the Brazilian Senate, 41/2010, includes a similarly modern provision for releasing open-format data.

The main obstacle to the passage of the law is not, apparently, the fear of exposing corruption, inefficiency, and incompetence, but those parts of government worried about exposing what occurred during the 1964-85 dictatorship. Certainly, the law 41/2010 prohibits information from being withheld if it is pertinent to the investigation of human rights abuses. But this is first-and-foremost a law designed for use by everyday citizens. It honors the right-to-information of Brazil’s citizens as stipulated in the constitution of 1988, articles 5 and 37.

If Brazil is to achieve good government, never mind saner taxes or a meaningful public sector reform, business leaders and citizens first needs to draw attention to spending, waste, and misplaced funds. Only by building laws that guarantee the free and unfettered access to information can an emerging society as important as Brazil’s monitor and enforce the efficient – and democratic – allocation of resources.

Considering the Diversion of Public Monies in Brazil -A Cool US$35 Billion for Starters

31 Mar

US$35 billion of public monies stolen. A colossal affront to the cities and country they work for? Yes. Preventable? Not yet.

The most significant news item on the diversion of public monies I have seen in some time appeared in yesterday’s Globo as the lead opinion piece: “The Indicators Show Billions Stolen.” The article cites grim figures: of 131 municipalities audited by the Comptroller General, 90 percent showed irregularities; and it is estimated that municipal officials and their accomplices steal 30% of federal and state transfers– US$ 35 billion dollars (R$60 billion) a year. As the author notes, this sum could tidily pay for Brazil’s primary schooling goals, or a presidential term’s worth of Bolsa familia conditional cash transfers –2.5 percent of Brazil’s annual GDP, which goes to its 44 million poorest (11 million families).

Minor in raw numbers, the second news item is equally disturbing. In the poor state of Amazonas, a Federal Police operation on ‘over-billing,’ found that the State University of Amazonas paid US$380,000 (R$615,000) for a website that should have cost US$3000. The contracting official and contractor would have split the excess funds.

In most advanced democracies, citizens, journalists, public advocates or competing firms tend to be the first to note over-billing or billing to nonexistent companies. But note how in both of these articles government entities did the auditing? Without a complete transparency infrastructure — the sort that can only be laid out by a comprehensive Freedom of Information Law — citizens will be unable to help government account for the $30 billion diverted by municipal governments and their co-conspirators. It’s also costly to have government officials do all the sleuthing.

Seeing as Brazilians labor under one of the heaviest tax burdens in the world, it’s about time to start ‘following the money’ and adopting the tools to do so. As the father of billionaire Eike Batista stated at an event I recently attended at the Rio de Janeiro Industrial Association (FIRJAN), the country cannot, should not, and need not go on “with the taxes of Switzerland and the services of Angola.” The country’s freedom of information law awaits passage in the Senate.