Learner’s Submission: Access to Information in Brazil

“In Brazil, the right of access to public information is provided constitutionally since 1988, the date of enactment of the Magna Carta. Only on November 18, 2011, Law No. 12,527, called Law and Access to Information Restriction with “vacatio legis” of 180 (one hundred eighty) days, was sanctioned by the President of the Republic. As most already had the text of constitutional law, it was given the power to regulate, already mentioned, citizens’ access to public information. The devices bring the statute in its wake, rules for three branches, in any sphere of Union, United States, Federal District and Municipalities. NGOs (Non-Governmental Organizations) are also subject to the law, the nonprofit private entities that receive public funds to carry out actions in the public interest and have partnership or agreements with the government must disclose information about money received and its destination.

Law 12.527/2011 created the so-called transparency active, ie, dissemination of information on the initiative of the Administration itself, in ways accessible to citizens; passive and transparency in procedures to meet the specific demands of citizens .

The publication of the Law under discussion meant an important evolution for Brazilian democracy. It represents a paradigm shift, because it establishes that access is the rule and secrecy the exception. In addition, made possible greater popular participation, social control of government actions, society’s access to public information fostered improvements in public administration and in prevention of corruption in the country.

The law has determined that public bodies create call centers within each organ called SICs (Citizens Information Services). These centers need to have structure to assist and guide the public to access information in the collective interest, eg, processing of documents, bidding processes and spending. Information may be requested in the Citizen Information Services (SICs), which will be installed at each public agency. The law also mandates that the citizen is granted the option to request data via the Internet. Other means, such as letter and telephone, will depend on the systems adopted by each agency. If the agency has information within immediate reach, the request can be serviced at the time it is made by Citizen, the SICs. If you need to search, the agency has twenty (20) days, renewable for another ten (10) days, to meet demand. The citizen will be notified by phone or internet. After that period, the public official must justify the reason for not providing the information.

On the internet, the Access to Information Act also requires that public entities to disclose, in a clear and easily accessible information about public administration. Must contain at least record the skills and organizational structure, addresses and phone numbers of their units and opening hours to the public. Also to be published records of any transfers or transfers of financial resources and information on bids, including bids and results. The law also requires that become exposed on the Internet for general data tracking programs, activities, projects and works of the government, as well as answers to frequently asked questions of society. The information should be kept up to date. Only municipalities with fewer than 10,000 (ten thousand) inhabitants are absolved the present on a website, data on municipal operations. However, the bodies of these small municipalities are obliged to provide information when requested.

No need to provide any justification for the request for information. There are no limits to the information being requested. Public servants who do not provide the requested information and submit legal justification may not suffer administrative sanctions and even be prosecuted for misconduct. Can be requested any information about data on public agencies. Is it possible, for example, ask how a ministry or department has spent on wages of servants, public works, ongoing bidding processes, details of audits, inspections and other.

The government of each member state created Brazilian transparency portals, network-accessible computers. Depend on how the body has stored the data for reporting. In cases of digital files, the citizen may obtain information on a CD or other digital media. If you need to print a high volume of papers, the citizen will pay the cost.

Free access to information of public service is a fundamental and constitutional right of the citizen. Law 12.527/2011 brought an instrument for citizenship. This is an achievement, a tool that improves the transparency of management and gives the principles of advertising effectiveness and morality of art inserts. 37 of the Constitution of the Federative Republic of Brazil. Free access became the rule and secrecy the exception.” – Gustavo Oliveira Paganini – Minas Gerais, Brazil

Learner’s Submission: Access and Protection to Information in South Africa

“Tuesday, the 22^nd of November 2011 (Black Tuesday), marked the passing of the controversial Protection of State Information Bill (Secrecy Bill) by the African National Congress (ANC) dominated National Assembly in South Africa.

Although it is still a proposed law and has now been referred to the National Council of Provinces(NCOP) – the lower house of parliament – for further consultations, it has been widely critised for its provisions that could help the government hide corruption and is in direct contravention of the 1995 Freedom Charter.

The following are some of the contents of this piece of legislation:

• There are espionage and hostile activities offenses which punish the communication of classified information which the person “knows or ought reasonably to have known would directly or indirectly benefit” a foreign state or a non-state actor, or prejudice national security. These offenses attract jail terms ranging from 3 years to 25 years;
• Intentionally accessing classified information or unauthorized possession of classified material is a criminal act and can land one in jail for up to 10 years;
• Foreign spies are required to register their status as agents with the government or face between 3 to 5 years in prison;
• Any head of an organ of state may classify or reclassify information. The State Security Ministry is the custodian of all classified information and material remains classified for no longer than 20 years, unless the state provides a compelling reason to keep it secret;
• Disclosing classified information unless protected under the Protected Disclosure Act or the Companies Act is punishable by a fine or a maximum jail term of 5 years;
• Failing to report the possession of and to return a classified document attracts a fine or a maximum 5-year jail sentence;
• The branch that classifies information can decide whether to grant requests for declassification;
• Computer hacking of state records is a criminal offense which attracts a jail sentence of 5 years to 10 years.

The criminal sanctions this bill seeks to impose are very stiff indeed and of great concern, is the absence of a public interest defense clause, which would allow journalists to publish classified information without fear of being arrested for exposing wrongdoing in government or any state organ. It would allow careful decisions to be made by the journalist and editor concerned about whether the public interest indeed justifies disclosure, and if this decision is wrong, there will be criminal law consequences.

In 2002, the African Commission on Human and People’s Rights adopted the Declaration of Principles on Freedom of Expression in Africa, which states:

• Public bodies hold information not for themselves but as custodians of the public good and everyone has the right to access this information, subject only to clearly defined rules established by law;
• The right to information shall be guaranteed by law in accordance with the following principles;
• Everyone has the right to access to information held by public bodies;
• Everyone has the right to access information held by private bodies which is necessary for the exercise or protection of any right;
• Any refusal to disclose information shall be subject to appeal to an independent body and/or the courts;
• Public bodies shall be required, even in the absence of a request, actively to publish important information of significant public interest;
• No one shall be subject to any sanction for releasing in good faith information on wrongdoing, or that which would disclose a serious threat to health, safety or the environment save where the imposition of sanctions serves a legitimate interest and is necessary in a democratic society;
• Secrecy laws shall be amended as necessary to comply with freedom of information principles;
• Everyone has the right to access and update or otherwise correct their personal information, whether it is held by public or by private bodies.

In the meantime the ruling Tripartite Alliance is clearly divided over this piece of proposed legislation which has already been passed by the National Assembly.” – Butholezwe Bhebhe – Johannesburg, South Africa