Harmonizing Freedom of Information and Trade Secrets
in State Owned Enterprises: Why Procedures Matter
by Guilherme
SIQUEIRA DE CARVALHO, University of São Paulo,
assistant at the General Ombudsman Office of the
State of São Paulo.
This paper investigates the problem of harmonization between freedom of information and the
economic interests of State-Owned Enterprises (SOEs), especially in light of
the Brazilian legal framework. Since that topic has hardly been object
of academic discussion so far, the paper is limited to an initial approach,
based on preliminary findings of
the research on ‘economic secrets in State-Owned Enterprises’.
The challenge
lies in limiting secrecy to exceptional circumstances, thus preventing it from
becoming the rule. In order to face that challenge, it is fundamental to draw
on the experience acquired by handling secrets related to national security,
which is the typical exception to freedom of information, alongside with the
protection of private data.
First, the above mentioned problem will be extend,
indicating in further detail why trade secrets in SOEs are a relevant challenge
to freedom of information. The following section argues that the democratic
supervision of SOEs can learn from the experience of national security secrecy,
which is performed mainly through the development of accountability procedures which restrain the discretionary power of
authorities. The final section highlights the absence of such procedural
elements in the regulation of trade secrets in SOEs.
Unlike most of
other forms of government organizations, State-Owned Enterprises are
characterized by their hybrid public-private nature. Public as a consequence of
its control by the government, which usually defines the ultimate goals of the
company, such as steering relevant and strategic markets – energy,
infrastructure, transportation, finances – or providing public services for the
population. The private aspect of the SOEs, on the other hand, is usually
connected to its organization in the form of a company, which means they are at
least partly profit-oriented and often rely on capital from private
shareholders.
Because of
those hybrid features, designing the legal framework in which SOEs should
operate proves to be specially challenging, since it must not only protect the
public interest underlying the creation of the enterprise – which includes the
company’s competitiveness and successful economic performance –, but also take
into account the private interests of minority shareholders. That’s why many of
the general provisions applicable to government bodies are seen as inadequate
for SOEs, which usually require greater flexibility in order to operate in
competitive market economies.
Transparency
rules are a good example of the difficulty in harmonizing the public and
private aspects of SOEs. In the public sector, full transparency is
increasingly regarded as the ultimate goal, and in the last few decades
democratic governments have made significant efforts to grant access to all
information held by public bodies[1].
After all, Bobbio famously defined democracy as ‘the
rule of public power in public’ (1984). In private enterprises, on the other
hand, secrecy is still considered the natural option and the disclosure of
information is tightly controlled. After all, information is an increasingly
valuable resource and its possession can result in a relevant competitive advantage.
Companies that wish to survive in a competitive environment must therefore
protect themselves from unwanted disclosure of information, which can
negatively affect their economic performance.
It is not
clear how transparency rules ought to be applied in SOEs, as they are located
in the threshold between public and private sector. Should they aim at full
transparency, enabling citizens to evaluate their policies and performances? Or
would it be better to treat strategic information as an asset, limiting
disclosure to tightly controlled circumstances? Those questions can be answered
in at least three different ways.
The first
course of action available is not to recognize trade secrets held by SOEs as a
legitimate exception to freedom of information. In this scenario, transparency
prevails over the economic interest of the company, which is thus compelled to
disclose any relevant information to the public, no matter the harm it may
cause to the activities performed by the enterprise.
It is
important to remember, however, that the successful economic performance of the
SOE is in the public interest. First of all, due to the public resources
invested in creating and maintaining the enterprise, so that the company’s
losses are also government’s losses. Secondly, if there are no prospects of
financial returns, private partners are less willing to invest in the company,
thus threatening the very existence of many SOEs.
Since
information has an undeniable strategic value in today’s economy, to impose on
SOEs the indiscriminate disclosure of information would surely impair their
ability to operate effectively in competitive markets and, consequently, their
economic efficiency. Of course the world of SOEs is very diverse, and many of
them do not face any actual competition nor do they rely on private
shareholders. In those cases, one could arguably give up trade secrets in favor
of public transparency without causing any significant damages to the company’s
results. At the other extreme, however, there are many SOEs that do operate in
highly competitive global markets (Kowalski
et al., 2013) and in which private shareholders play an important role.
For that
reason, even though a conceivable alternative, it is extremely unlikely that
SOEs (or lawmakers) simply waive the right to withhold strategic information
for the sake of transparency,[2]
even though in specific scenarios it may be possible to adjust the rules to the
market conditions in which the company operates.
If trade
secrets are an unavoidable reality, a second alternative in dealing with the
dilemma is to exempt SOEs from transparency obligations applicable to other
government bodies, especially those related to freedom of information. According
to the Global Right to Information Rating, developed by Access Euro[3],
among the 111 countries with Access to Information legislation, 22 do not
include SOEs – including Australia, Austria, Belgium, China, Denmark, France,
Greece, Switzerland, Taiwan and Turkey – and other 13 only do it partially –
including Canada, Chile, Colombia, Ireland, Italy, Japan, the Philippines and
South Korea.
The problem
here is that, even though there are legitimate reasons for denying access to
information held by SOEs when this disclosure may be detrimental to the
company’s performance, the simple exclusion of these companies from the scope
of freedom of information legislation results in a dangerous gap of public
accountability, in two different ways.
First, SOEs
seem to provide an environment prone to corruption. On the basis of 224
corruption cases, for instance, a report by the Organisation
for Economic Cooperation and Development concluded that ‘SOE officials were
bribed in 27% of cases but received 80.11% of total bribes’ (OECD, 2014,
p. 22). Recent corruption scandals in Brazil illustrate how pervasive
corruption in SOEs can be. In 2014 an investigation task force unveiled a
corruption scheme in Petrobras, a state-owned oil
company whose losses have been estimated in over U$ 6 billion. The same
investigation has brought other SOEs under suspicion, such as Eletronuclear (whose CEO was was
sentenced to serve 43 years in prison), Eletrobras,
the National Bank for Economic and Social Development (BNDES), among
others. The explanation for that apparent connection between SOEs and
corruption can only be speculated here, but it doesn’t seem far stretched to
point as plausible reasons (i) the fact that SOEs are
often charged with carrying out large infrastructure programs; (ii) the highly
technical fields in which they operate, making outside supervision difficult;
(iii) the greater flexibility in awarding contracts and choosing commercial
partners; and (iv) lack of transparency.
Secondly, even
if SOEs were absolutely immune to corruption, opacity can hinder accountability
of elected officials. In many cases, the activities of SOEs are a relevant part
of the government’s political and economical strategies. In recent years, for
example, Petrobras and BNDES have played a major role
in furthering the economic policy of the Brazilian federal government (Mantega,
2005), while Caixa Econômica,
another public bank, was fundamental for the success of social policies such as
Programa Bolsa Família (Soares, 2012). In this scenario, secrecy can deprive
citizens from relevant information about their government’s actions[4].
Likewise, problems and difficulties in providing public services may be hidden
from society under the pretext of protecting trade secrets.
The importance
of accountability in SOEs should not be underestimated. Even though state
ownership is not as popular and frequent today as it once was, partly due to
the large privatization programs in the 1980s and 1990s, SOEs can still be
considered relevant actors in the global economy, especially among emerging
economies, where state ownership is often seen as an important tool in
promoting economic growth (Kowalski et al.,
2013). Brazil is a good example: in spite of undergoing large scale
privatization in the last decades, SOEs still play a central role both in
domestic economy and in public services. In 2014, the federal government alone
controlled 135 companies – 48 under direct government ownership –, which
employed more than five hundred thousand people[5].
In the financial sector, roughly half of all credit operations were performed
by government-owned banks, which are also responsible for 40% of all
transaction accounts in Brazil (Brasil, 2015, p. 44).
In the attempt
to hold SOEs accountable to society, transparency plays an undisputable role.
As highlighted by Bobbio
(1980), the government of the economy, unlike traditional power, is performed
not so much through laws or decrees, but rather through the control of large
economical hubs, including SOEs. As a result, this form of governmental action
frequently eludes democratic and judicial review, and that’s a reason why Bobbio calls
for a theory of this ‘undergovernment’, aimed at
removing it from the domains of the ‘invisible power’. Bobbio’s remarks seem as true
today as they did thirty years ago, and even after the privatization of the
1980s and 1990s state-owned enterprises remain too relevant to be left in the
shadows.
If lawmakers
are to acknowledge trade secrets in SOEs without exempting them from FOI
legislation altogether, a middle ground must be found. Therefore, the third –
and quite obvious – path available is to treat the dilemma not as an absolute
choice between secrecy and transparency, rather as a question about the degree
of transparency which should be imposed on state
owned-enterprises. After all, sola dosis facit venenum
– the dose makes the poison.
The abstract
formula that summarizes that scenario would be: ‘information held by SOEs is
public, unless its disclosure may harm a legitimate economic interest of the
company’. That formulation reflects a well known FOI principle according to
which information is presumed public and access may only be denied in limited
and exceptional circumstances.[6]
The structure, therefore, is divided in two parts: first, there is the general
rule: ‘all information is public’; then, the exception: ‘unless there is a
legitimate reason for withholding it’.
Although very
simple at a first glance, the effectiveness of such formula hinges on the
answer to a delicate question: how do we make sure that exception remains an
exception? How can we guarantee that ‘exceptional’ secrecy is not gradually
going to expand to the point where it is, de
facto, the rule?
The duality
rule/exception must not be regarded (only) quantitatively. The ‘proportion’ of
data considered secret is a relevant indicator, but so is its quality. The fact
that a public body withholds only 5% of all its documents doesn’t mean per se it complies with the general rule
of publicity, because those few withheld documents may contain all information
necessary for an effective social control, whereas the remaining 95% could say
little about the activities carried out by the organization.
According to Bobbio (1980), one of the main differences
between an autocratic and a democratic regime lies in the fact that, in the
first, secrecy is the rule, whereas in the latter it is an exception regulated
by laws which do not allow improper extension. In
democracies, the exceptionality of secrets proves the rule of publicity, as in
the old maxim from Cicero: exceptio probat regulam in casibus non exceptis.
The challenge thus consists in designing the laws which
regulate secrecy in such a way that it is limited to exceptional circumstances,
reinforcing the general provision of publicity.
The
archetypical exception scenario to government transparency, alongside with the
protection of personal data, is national security. There is little, if any,
dispute about the legitimacy of withholding information for safety purposes,
and even the most enthusiastic advocates for public transparency acknowledge
the need of secrecy to some extent whenever the safety of people is at stake.
Virtually all declarations on the right to information from civil society
organizations admit that possibility.[7]
Evidently,
that doesn’t mean that governments should have a carte blanche when it comes to national security; on the contrary,
the need to reconcile publicity and national security actions has been the
focus of long debates, and attention to this topic has grown in the last few
years, partly as a consequence of Edward Snowden revelations about massive
surveillance conducted by intelligence agencies. Therefore, if we are to
understand which mechanisms can be put into place in order to limit secrecy to
really exceptional circumstances, there is no better way to start than to look
at the experience acquired by regulation of secrecy for national security
purposes.
As a first
step in that direction, in this part I analyze how the Brazilian Freedom of
Information Act (FOIA)[8]
regulates the withholding of information for security reasons. I do not intend
to dwell on details, but to present the overall strategy adopted by the
lawmakers, which I argue can be divided into two complementary processes:
first, on a conceptual level, there is what I call the denaturalization of secrecy; secondly, there is proceduralization.
The idea that
information held by government agencies is presumed public is relatively
recent. Until not so long ago, the general public only had access to those
documents voluntarily disclosed by the authorities (see Schudson,
2015). Even today, in spite of the growing acceptance of the right to
information, the presumption of publicity is far from being uncontroversial,
and many officials resist granting access to information solely on discretionary
grounds.
In that
scenario, confidentiality is the standard situation and demands no further
justification. No one has to state which documents are
to be kept away from the public: their secrecy is merely an attribute of the
information they contain.
The paradigm
shift towards openness changes everything. If information is prima facie public, someone must define
when and on which grounds access should be restricted. This is what I call denaturalization, the process through
which secrecy is no longer seen as the natural
state, but as the consequence of a decision by an authority. Brazil
provides an illustrative example: whereas the 1991 Law on Archives stated that
‘documents which, if disclosed, would endanger the security of society and of
the State […] are originally
confidential’[9],
the 2011 FOIA established that information must be classified by competent
authorities in order to be considered as secret.
Information
may only be legitimately withheld, therefore, when it is duly classified, that is, when an authority
formally decides that the concrete data or document falls within the scope of a
legal exception to the general rule of transparency. The denaturalization
process thus transforms the content of information in a necessary, but not
sufficient, condition of secrecy.
That’s why
denaturalization is indispensable for the limitation of secrecy. As long as
secrecy remains a general standard, no one is really responsible for it and,
therefore, one can hardly control it. Legal decisions, on the other hand, must
fulfill a series of formal requirements and that enables control and review.
Any attempt to withhold information without prior classification is invalid and
the responsible authorities are then liable for the consequences of the illegal
act.
The question
then turns to the list of requirements which must be
met for a classificatory decision to be considered valid. That’s where the proceduralization of secrecy comes into play.
Legal
decisions imply some degree of discretionary power; otherwise, there may be
application, but no decision. Discretionary power, however, is not arbitrary and must be exercised within
the limits defined by law and in accordance with its goals. Proceduralization
here means the definition of formal criteria along the deliberation process which enable external control, thus narrowing the
discretionary power of the decision maker.
My analysis
indicates that proceduralization of security-related
secrecy in the Brazilian FOIA resorts to six main elements, which are expanded
below: (i) narrow legal definitions; (ii) legal
competence; (iii) justification; (iv) possibility of
review; (v) publicity; and (vi) time limits.
The process of
legal reasoning is often described as the application of an abstract rule to a
set of facts. In the case of secrecy, since the right to information sets a
presumption of publicity in its favor, the decision maker must evaluate whether
or not the information under scrutiny falls within the scope of a legal
exception.
That means the
degree of discretionary power attributed to the decision maker is proportional
to the amplitude of the exceptions foreseen by the law. Undetermined legal
definitions may be applied to a broader range of documents and data than
narrow, concrete rules. Vagueness is, therefore, a great obstacle to the
limitation of secrecy (Perlingeiro, 2015, p. 45). That’s why the
principles of the right to information include the idea that any exceptions
should be regulated in detail by the law (see
footnote 6, above).
When the
Brazilian Constitution states information must be public, except when
indispensable for the security of the State and the society,[10]
one can always point to the vagueness of such concept and wonder whether it is
any guarantee at all for the freedom of information. In order to narrow that
extremely broad definition, article 23 of the Brazilian FOIA determines that
information can only be regarded as indispensable for security purposes when
its disclosure may: (i) jeopardize national defense
or sovereignty or the integrity of the national territory; (ii) harm or
jeopardize the nation’s negotiations or international relations; (iii)
jeopardize the life, safety or health of the population; (iv) represent
significant risk to economic, financial or monetary stability, (v) harm or
jeopardize strategic plans or operations from the Armed Forces; (vi) harm or
jeopardize projects of research and scientific or technological development;
(vii) jeopardize the safety of institutions or of national and foreign high
authorities and their families; (viii) impair intelligence activities, as well
as ongoing investigations related to prevention or repression of illegalities.
According to
the Brazilian FOIA, in order to classify any information, the authority must
refer to at least one of these eight scenarios. It’s true that article 23 can
still be accused of being too vague, since many of the adopted terms are
extremely broad themselves, such as ‘economic stability’, ‘national
sovereignty’ or ‘safety of institutions’. Nonetheless, if compared to the
general exception of ‘safety purposes’, article 23 provides narrower definitions which restrain the freedom of the decision
maker.
If the
lawfulness of secrecy depends on a legal decision, who is entitled to make that
decision? Just as important as narrowing the exception rules is the definition
of the authorities that have the attribution to apply them, because, although
seemly elementary, competence is a fundamental aspect in the limitation of
secrecy. When information held by public agencies is presumed to be restricted,
there is no one I can hold accountable for the withholding of information.
Competence is, therefore, a premise of accountability.
The Brazilian
FOIA specifies which officials are entitled to classify information and to what
extent. According to article 27, for a document to be considered top secret the
classificatory decision must be approved by the president, the vice-president,
a minister, a head of the Armed Forces or a chief of a diplomatic mission. The
other security gradings (secret and confidential) are
available to a wider range of authorities, but still very limited if compared
to the size of the administration. Any withholding of information without the
approval of the competent authority is invalid. As a result, by limiting the
range of authorities entitled to classify information, the law creates
obstacles for the trivialization of such decision.
Competence and
jurisdiction also enable liability. Not only is it considered a violation to
withhold information without a lawful restriction by a competent authority, but
also the classification of information for unlawful reasons (such as hiding the
evidences of illegal action) may result in the removal of the authority from
public service, in addition to civil and criminal liability.
If the legal
exceptions to transparency are relatively broad or vague, the mere indication
by the authority that certain documents fall within its scope does not suffice.
For external control to be effective, the classificatory decision must be
justified, that is, it should explicitly demonstrate how the specific
information is relevant for security purposes.
The
presentation of specific reasons for the withholding of information is widely
acknowledged as a principle of the right to know. The Tshwane Declaration of
Principles (see footnote 6, above),
for instance, states that ‘the burden of demonstrating the legitimacy of any
restriction rests with the public authority […]. In discharging this burden, it
is not sufficient for a public authority simply to assert that there is a risk
of harm; the authority is under a duty to provide specific, substantive reasons
to support its assertions’.
The Brazilian
law incorporated that idea, and article 24 prescribes that the classificatory
decision must entail the reasons which justify it. The
sole paragraph, however, allows that the decision be kept in secret for the
same time of the classified information, which certainly hinders, or at least
postpones, any possibility of social oversight. Nonetheless, the absence of
justification can lead to the annulment of the classification, as well as to
the liability of the competent authority.
The Tshwane
Declaration of Principles also sustains that freedom of information legislation
should include ‘prompt, full, accessible, and effective scrutiny of the
validity of the restriction by an independent oversight authority and full
review by the courts’. By submitting the classifying authority to independent
review, either hierarchical or by the courts, the room for abuse and arbitrary
withholding of information grows narrower.
Brazilian
legislation admits the possibility of review in at least three ways. First, any
citizen can petition the authority responsible for the restriction, or its
superior, to request reevaluation of the classified document, in accordance
with article 29 of FOIA. In regard to information categorized as secret or top
secret, article 35 foresees the review by the Joint Committee on Information
Reassessment, which consists of representatives from several ministries.
Finally, although there is no specific provision in the FOIA, classificatory
decisions are also subject to judicial review, as every other administrative
act in Brazil.
The existence
of multiple review layers assures that the classificatory decision is not final
or irrevocable, which greatly reduces the risk of abuse or unlawful withholding
of information by public agencies.
As
contradictory as it may appear at first glance, the limitation of secrecy can
only be achieved with some degree of publicity. The classified information
itself, of course, must remain confidential, but the classificatory decision
must be publicized, or else it would be impossible for society to identify
unlawful withholding of information. After all, a citizen can only appeal
against a classificatory decision if he knows it exists.
As already
mentioned, the Brazilian FOIA considers the classificatory decision itself
secret (article 28). The existence of such act, however, must be made public.
Article 30 demands that every public agency publish on its website a roster of
every document classified in each grading (top secret, secret or confidential),
identified for future reference, as well as a list of all information
declassified in the prior twelve months.[11]
That active
disclosure of information gives visibility to the extent of secrecy in public
agencies. The monitoring of the development of such records through time
provides society with a further indicator of the transparency policies of its
government.
The
withholding of information for security reasons is instrumental, that is, it is
justified by its utility to an end: protect society and institutions.
Therefore, whenever that information ceases to be of significant impact on
security, there is no longer a justification for the access restriction. The
ultimate consequence of this idea is the abolition of eternal secrets. Bobbio (1980) summarizes that conclusion: ‘one
of the principles of a constitutional state: the public character is the rule,
and secret is the exception, and even so an exception which doesn’t make the
rule any less valid, for the secret is only justifiable if limited in time’.
It is not
always easy, of course, to determine when exactly information ceases to be
indispensable for security purposes, and unlawful withholding of information,
even if not eternal, can still produce a lot of harm. Nevertheless the
definition of temporal limits contributes to restrain discretionary power,
especially when authorities are expected to justify not only the classification
of the document, but also the time imposed at the moment of the decision.
In Brazil,
article 24 of FOIA sets deadlines proportional to the security grading of
information. Top secret documents may be withheld up
to 25 years, whereas secret and confidential information only 15 and 5 years,
respectively. As already mentioned, the grading influences also the definition
of the competent authority for the classification, so that longer restrictions
are usually a prerogative of higher ranks of the public administration.
How about the
regulation of trade secrets in SOEs? Does the Brazilian law provide similar or
analogous procedural elements, which enable limitation of secrecy to
exceptional circumstances? The answer appears to be negative. More than that, a
closer look reveals that trade secrets haven’t gone through the process of denaturalization at all and are still,
to a large extent, regarded as a mere attribute of the information held. When
it comes to commercial interests, there is no actual decision to be made:
information simply is intrinsically
secret.
As a consequence,
the withholding of information for economic purposes lacks all procedural elements which would enable external control. First of all,
Brazilian law does not provide any specific definition of commercial secrets in
SOEs. Article 22 of FOIA mentions briefly as a legitimate exception to freedom
of information ‘the industrial secrets resulting from economic activities
directly carried out by the state’. The definition of ‘industrial secret’ is,
however, extremely uncertain and is usually associated with information
protected as intellectual property, such as patents or industrial designs.
Another recent
piece of legislation, the Statute of State-Owned Enterprises (Law 13.303, of
June 30, 2016), states that ‘the criteria for the definition of what ought to
be considered strategic, commercial or industrial secret will be set in an
executive decree’ (article 86, §5). Such regulation, however, still doesn’t
exist and the exact circumstances, which allow the restriction of information
held by companies, remain imprecise.
Likewise,
since there is no decision to be made, there is no legal competence to the
imposition of secrecy and it is unclear who is entitled to determine which
documents or data may be disclosed and which are to be treated as secrets. Of course,
the decision eventually has to be made, especially in response to FOIA
requests, but at that point the restriction is not seen as an autonomous
decision, rather as a mere fact.
Since FOIA
denials have to be justified and are subject to revision by the Ministry of
Transparency, one could argue that the trade secrets are externally
controllable. The justification in those cases, however, is usually vague and
does not meet the requirements of classification for security purposes. Also,
the ministry’s analysis, although partly restraining the discretionary power of
the SOEs, often defers to the argument of the company, without further inquiry
into the actual harm the disclosure of the information would provoke.
Most
importantly: the absence of an autonomous decision regarding trade secrets
enables secrecy to remain both invisible and eternal. Because there is no need
to ‘classify’ information, it is impractical to evaluate the extent of secrecy
in SOEs and one can only find out if any given information is secret or not by
means of a FOIA request. In addition to that, there are no time limits for
trade secrets, even after they cease to be relevant for the company’s
activities.
Brazilian SOEs
are expressly subject to FOIA. However, the possibility of invoking commercial
interests for withholding information has led to the application of a peculiar
transparency regime, which differs from other institutions controlled by the
government. For instance: whereas the salaries of public officials are
considered public and accessible information, according to a ruling by the
Supreme Court[12],
SOEs are dismissed from the disclosure of the same information regarding their
employees.[13]
The list of FOIA requests which were denied on the basis of trade secrecy
includes: number and geographic distribution of employees, organizational
chart, copy of contracts, value of sold assets, tax receipts from public
procurements, records of board of administration’s meetings, work methodology,
auditing reports[14].
As a
consequence of its hybrid public-private nature, State-Owned Enterprises find
themselves in a delicate situation when it comes to transparency. The challenge
is to protect information relevant for the companies’ performances while at the
same time maintain secrecy as an exceptional measure to be adopted only in
limited circumstances.
In the
national security realm, Brazil sought to harmonize secrecy and transparency
through the development of procedures which empower
society to control decisions made by public officials responsible for the
classification of relevant documents and information. Those different
procedural elements act together to limit the discretionary power of
authorities and to inhibit the unlawful expansion of secrecy.
Secrecy in
SOEs, on the other hand, hasn’t been the focus of the same attention by
Brazilian lawmakers, and its regulation lacks almost all the elements
which enable effective control by society. Even though that conclusion
is limited to Brazil, it is not hard to imagine that many countries face
similar problems, particularly those where SOEs are still significant actors in
the economy.
Trade secrets
and security-related secrets are different and there is no reason to believe
they should be regulated in equal terms. Nonetheless, the experience
accumulated with information necessary for security purposes should not be
overlooked, and it teaches us two valuable lessons.
First, it is
important to acknowledge secrecy as a consequence of a decision. Only by doing
this can we bring it to the realm of accountability. Secondly, procedures play
a major role in narrowing the discretionary power of authorities, thus
diminishing the risk of abuse and illegitimate withholding of information. If
trade secrets are to be harmonized with the principles of the freedom of
information, lawmakers around the globe shouldn’t spare efforts in designing
effective procedures aimed at limiting secrecy to the exceptional circumstances
in which it is justified, and only for the time it is actually necessary.
REFERENCES
Brasil. Perfil
das Empresas Estatais Federais, 2014. (Ministério do Planejamento Desenvolvimento e Gestão, 2015). <http://bit.ly/2kIaUxe>
accessed January 29, 2016.
Bobbio, N. «La Democrazia e il Potere
Invisibile», Rivista Italiana di Scienza Politica, 10(2), 1980 p. 181–203.
Kowalski, P.
et al., State-Owned Enterprises: Trade
Effects and Policy Implications, OECD Trade Policy Papers, n. 147(OECD
Publishing, 2013). <http://dx.doi.org/10.1787/5k4869ckqk7l-en> accessed
January 29, 2016.
Mantega, G. «O BNDES e o Novo Ciclo
de Desenvolvimento», Revista do BNDES, Rio de Janeiro, n. 23, jun. 2005, pp. 3-16.
Mendel, T. Freedom of information: a comparative legal
survey, 2nd ed. (Unesco, 2008).
OECD, OECD Foreign Bribery Report: An Analysis of
the Crime of Bribery of Foreign Public Officials, (OECD Publishing, 2014).
<http://dx.doi.org/10.1787/9789264226616-en> accessed January 29, 2016.
Perlingeiro, R. «Principles of the right to access offical information in Latin America», Revista de Investigações Constitucionais, vol. 3, n. 2, may/aug. 2016, p. 143-197.
Perlingeiro, R. « The Right to Information from the
Procedural Standpoint (Judicial and Non-Judicial)», Revista de Direito
Administrativo e Constitucional, n. 61, jul./sep.
2015, p. 43-50.
Soares, S. (2012). ‘Bolsa Família, Its Design, Its Impacts and Possibilities for the
Future’, IPC-IG Working Paper, No. 89. Brasília,
International Policy Centre for Inclusive Growth.
Schudson, M. Rise of
the right to know: Politics and the Culture of Transparency, 1945–1975
(Harvard University Press, 2015).
[1] A good example of such efforts is the Open Government Partnership (OGP), a 2011 initiative aimed at making national and subnational governments more open, accountable, and responsive to citizens. Originally with eight members, OGP has grown to seventy five participating countries by the end of 2016.
[2] For instance, the ‘Model Inter-american Law on Access to Public Information’, approved by the Organization of American States (AG/RES. 2607 -XL-O/10), may deny access to information when its disclosure ‘would create a clear, probable and specific risk of substantial harm, [which should be further defined by law] to […]the ability of the State to manage the economy [or] legitimate financial interest of a public authority’.
[3] Available at <www.rti-rating.org/>.
[4] In 2014, for example, brazilian newspapers indicated that the federal government, eager to curb inflation, used Petrobras to control fuel prices. In a year of presidential elections, the strategy was extremely controversial and resulted in major losses for the company. The government, however, hesitated to admit any interference in Petrobras, which denied public access to its pricing policy.
[5] Subnational governments, especially at the state level, also control a relevant number of enterprises in a variety of economic areas, such as infrastructure, basic sanitation, transport, and so on.
[6] According to the Principles on Freedom of Information Legislation, drafted by Article 19 and endorsed by the UN Special Rapporteur on Freedom of Opinion and Expression in his report to the 2000 session of the United Nations Commission on Human Rights (E/CN.4/2000/63), ‘The principle of maximum disclosure establishes a presumption that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances’ (available at <http://bit.ly/1lYHR4n >). For more information on the maximum disclosure principle, see Mendel, 2008.
[7] See ‘The Public's Right to Know: Principles on Freedom of Information Legislation’, mentioned in footnote 5, above, as well as ‘The Global Principles on National Security and the Right to Information (Tshwane Principles)’, available at <https://osf.to/24OsfjM>, and the ‘Principles on the Right of Access to Information’, drafted by the Inter-american Juridical Committee (CJI/RES.147 - LXXIII-O/08).
[8] Law n. 12.527, of November 18, 2011.
[9] Law n. 8.159, of January 8, 1991, article 23, §1º.
[10] Article 5. […] XXXIII – 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.
[11] Article 30 can be seen as the minimum compliance level to Principle 23 of the Tshwane Declaration exemplifies: ‘A public authority that holds information that it refuses to release should identify such information with as much specificity as possible. At the least, the authority should disclose the amount of information it refuses to disclose, for instance by estimating the number of pages’.
[12] Supremo Tribunal Federal, Recurso Extraordinário com Agravo n. 652.777, April 23, 2015.
[13] A noteworthy exception is the State of São Paulo, which has publicized the salaries of SOEs’ employees on the internet since 2015.
[14] The requests and denials can be consulted in <http://bit.ly/2jmeJYy>. The mentioned cases were registered under the following protocol IDs: 99903.000329/2014-78, 00190.024893/2013-11, 99923.000691/2015-91, 00190.015163/2014-19, 00190.024892/2013-77, 00190.502923/2015-04, 99909.000277/2013-07, 99923.000047/2015-13.