Three years of the Access to Information Act: for a culture of transparency

by Digital Rights LAC on August 24, 2015


The Right to Information is essential to the individual to fully exercise their freedom of expression. Through access to information, there is a social empowerment that allows the citizen to exercise a qualitative participation and social control of public policies. In this sense, the Access to Information Act (Law 12.527/2011) plays an instrumental role in ensuring this right.

By Bárbara Paes, Fernanda Balbino e Joara Marchezini, Article 19

In the month that the law fulfills three years of validity, Article 19, non-governmental human rights organization dedicated to promoting and protecting freedom of expression, including access to information, has released the second edition of Law Monitoring Access to Public Information report, for the year 2014.

The report includes the implementation of follow-up work of the same law, whose fundamental premise that transparency should be the rule and secrecy the exception. The regulation of the Right to Information contributes to a change in the existing culture of secrecy inside the government of the country, placing the state as a guardian of public information, not as owner.

The report examined 51 bodies of three federal government spheres, checking the implementation of the law through criteria of active transparency (obligation to publicize a minimum of information on official websites) and passive transparency (obligation to answer formal information requests).

The monitoring showed a substantial improvement within the Active Transparency. In the passive, the proportion of unsatisfactory answers virtually remained, although the number of unanswered requests has fallen, showing greater commitment in serving the citizen. Of the 255 requests for information, 68.2% were fully answered and 23.2% received partial responses. A small number (2%), but significant, was not answered, mainly those made to the organs of Justice System. At the same time, 5.5% of applications were denied access to information, and in two cases public agencies claimed not to have the information.

For the preparation of the monitoring, we observe the fulfillment of the basic criteria of the Access to Information Act with regard to the active transparency and passive transparency. In this category, we qualitatively analyze the resources and their response, aimed at ensuring access to information. In active transparency, we evaluate the respective websites of the organs, monitoring compliance six evaluative criteria based on the disclosure of the minimum required by law. The objective was to conduct an independent evaluation of the implementation of the Access to Information Act (LAI) and establish recommendations of short, medium and long term to public agencies.

Of the 38 agencies analyzed, 73.7% (28) fulfilled all minimum obligations under the LAI. While in the Legislature, the two evaluated public agencies – Federal Senate and Chamber – breached a criterion each. The most serious case was due to Judiciary: none of the 11 evaluated organs has fully complied with the criteria for Enable Transparency. Seven of them (63.6%) did not complied two or more criteria, making organs of this power the less suitable for LAI.

Information on popular participation and list of documents classified as confidential remain the largest gaps in the Active Transparency in all powers. In the Executive, only 44.7% of the bodies had a specialized section for the dissemination of public hearings, public consultations, among others. In the courts and in the legislature, no body has fulfilled the criterion of disseminating information on classified documents.

Advances noticed in the Active Transparency occurred mainly about institutional information and “frequently asked questions and answers” – two criteria fulfilled for all evaluated organs. Another notable progress has been the dissemination of news about the holding of public hearings and consultations in the Executive, reaching a total of 92.1% of the organs, thanks to the implementation of the “Join” tool of the federal government. This progress, however, is restricted to this sphere of power.

Have to analyze passive transparency, there were five models of inquiries for each organ. Analysis of the responses evaluated four criteria: the type of response, quality of response, response time and the possibility that the progress of the application be accompanied by the applicant. Under the Federal Executive, 73.2% of requests were full access to requested information and 73.9% of satisfactory quality of response. The rates were the highest in the Monitoring. Still, the average response time was 16 days, within the stipulated by LAI, which states that the agencies have 20 days to provide the information.

In the Legislature, the ten questions submitted to the House and the Senate, six of them provided full access to information and satisfactory answers. The average response time was the lowest among all: 11 days. Judiciary also appears in Passive Transparency as the least transparent power. Only 50.9% of the responses were considered for full access and 56% were regarded as satisfactory – this is the lowest percentage among the three powers. Two of the eleven bodies had a response time average over the limit stipulated by law.

Requests for public participation were the most problematic, showing that the data gaps is not limited to the Active transparency. There was a certain neglect of the promotion of popular participation mechanisms and the provision of documents relating to these spaces. Popular participation is an essential part of a policy of transparency that self-respecting social control and the contribution of civil society. In this sense, the documents –bills and lists of public hearings, reports of future hearings or public consultations– are essential for citizens to understand what was discussed, check the pluralism and diversity of those present, whether the directly affected population (if applicable) participated, being important tools of transparency and legitimacy of public decisions.

Despite the positive findings recorded in the report in relation to the issue last year, adapting to LAI by federal agencies is still far short of what it should, after 3 years of the Access to Information Act. The requests for information were simple and relatively easy to answer. The funds were made when the response sent by the agency was not satisfactory, so the high amount of resources carried out indicates how difficult it is to also obtain access to correct and updated information even after the implementation of the Law.

The monitoring aimed to evaluate the fulfillment or not otherwise of the minimum requirements of the Access to Information Act, so that important issues such as accessible language, updating and accessibility were not priority in the analysis. If the report had given more weight to these aspects, the overall picture would be much less positive. This type of analysis will be our goal for more in-depth and qualitative evaluations in the coming years.

Three years after the enactment of the Access to Information Act and considering the slow progress in its implementation process, the Monitoring again points to the need to create an autonomous body to promote the right to access, control and monitoring of law enforcement with participation of civil society and political independence. Through an autonomous body, it enables to promote the culture of transparency and information management, phasing out the existing information gaps.

We believe that the report and its recommendations can contribute to the greater realization of the right to information and assist in its promotion, serving as support material for discussions on the responsibilities of each public agency in the implementation of LAI. In addition, the report provides a historical perspective that shows the evolution of the bodies in relation to the analyzed criteria, considering the comparative degree between the first and second year of the study. All the methodology used, and the results and responses from each of the agencies are available in that report and on the website Portal Open Access – Observatory.

Image: (CC BY-NC) Icecoldcola / Flickr