Bolsonaro’s Turn to Secrecy – Weakening Brazil’s Freedom of Information Law

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Originally published in Folha de São Paulo, authored by Gregory Michener and Irene Niskier.

President Jair Bolsonaro was elected based on two noble promises: advance the rule of law to fight crime and corruption, and strengthen Brazil’s fiscal position by creating a more efficient state. Transparency is a precondition for advancing both of these promises.

So how does a decision to greatly expand secrecy (decree 9690) in government contribute to realizing Bolsonaro’s promises? It does not; it does exactly the opposite.

What is at Stake for Transparency in Brazil

Yesterday’s decree greatly increased the number of public servants who have the authority to classify information as secret or reserved. Before the decree, only ministers and a handful of other high authorities could classify information as ultrasecret (25 year reserve). Now over a 1000 high authorities (DAS 6 and DAS 5), many of them appointed (as opposed to career public servants), will have this power. Thousands of other authorities now have the authority to classify information as ‘reserved’, which entails a 5-year sequestration. In sum, the measure increased the number of people who have the power to make public information off-limits to the public. Practically, a greater number of officials empowered to hide information means there will be greater abuse; information will be inappropriately classified, regardless if it meets official exemptions or not. Increases in secrecy claims should translated into more difficult access and a greater number of appeals, increasing backlog. Practically and symbolically, the decree threatens to kill the effectiveness of Brazil’s access to information law (ley 12.527/2011).  

What is at Stake for Brazil

What is at stake is a fundamental political right – the right to access government information – and one that is powerfully articulated by Brazil’s Access to Information Law (12.527). According to a recent study by the FGV’s Public Transparency Program (RAP), which looks at more than a thousand requests sent to the federal government, the LAI is effective in promoting relatively high levels of responsiveness. What is also at stake are Brazil’s numerous regional and international commitments to transparency and openness, its ambitions to be a part of the Organization of Economic Cooperation and Development, and its credibility in issuing statements about the erosion of democracy in countries such as Venezuela.

This government and Brazil will pay heavy reputational costs if decree 9960 is not abrogated. However, the President still deserves a chance to make things right. Notably, the decree was signed by Vice President Hamilton Mourao and Chief of Staff Onyx Lorenzetti while Bolsonaro was out of the country – as if by stealth. Now back in Brazil, it is critical that President Bolsonaro make good on his promises for transparency and abrogate Decree 9960 as soon as possible.

An Administration Riven by Contradiction

Admittedly, the prospects for a quick reversal of the secrecy decree are not good. Intensifying secrecy fits into a pattern that is raising alarm. Earlier this month Bolsonaro emitted a measure (MP 870/2019) that would “supervise, coordinate, monitor, and accompany[GM1]  the activities and actions of international organizations and non-governmental organizations within the national territory”. Increased secrecy and surveillance are the sort of phenomena we would expect of Venezuela, or other authoritarian enclaves, but certainly not a country whose leaders and institutions cry out for greater openness and civic initiative.

It is clear that the government’s move towards secrecy is emblematic of conflicts that loom large inside the administration. On the one hand, the signatories of the secrecy law, General Mourão and Minister Lorenzetti, represent Bolsonaro’s primary political and military confidants, roles that lend themselves towards secrecy. On the other hand, Bolsonaro’s rule-of-law and economic lieutenants, Ministers Sergio Moro and Paulo Guedes, have clear responsibilities to come to transparency’s defense, as governmental openness is intrinsic to their policy aspirations and Bolsonaro’s policy pledges. This situation augurs an inevitable showdown between a regressive and hermetic statism of old – whose results are clear to see – and a Brazil that aspires towards greater openness and efficiency.

If Bolsonaro intends to follow through with his promises and put “Brazil above all else”, he has a responsibility to abrogate decree 9690.

 [GM1]supervisionar, coordenar, monitorar e acompanhar as atividades e as ações dos organismos internacionais e das organizações não governamentais no território nacional”.

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