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Andy Spalding on Brazil’s second pillar: The access to information law

We’re talking about the four major laws, or “pillars,” that Brazil enacted on the eve of the 2016 Olympic Games (and 2014 FIFA World Cup) that completely changed Brazil’s anti-corruption landscape. 

In 2011, Brazil enacted two of the four laws. The first was the procurement reform, known as the Regime Diferenciado de Contratações or RDC. The second pillar was the Law No. 12.527/2011, widely known as the freedom of information (FOI) law or information access law.

Based on the principle, “publicity as the general precept, and secrecy as the exception,” the FOI law moves to an era of active transparency, in which the government is obligated to publish certain forms of information without a request.

It brings an end to what Brazilians called the “eternal secrecy,” in which public documents had an indefinite period of confidentiality because highly classified documents could see their classification renewed indefinitely.

The law has three core components. First, it obligates the federal, state, and municipal governments, as well as state-owned companies and even non-profits receiving government funds, to publish various kinds of information, including documents on government spending, without a request. These so- called “active transparency” obligations extend to the official contact details of all employees, financial operations, spending, procurement contracts, and answers to frequently asked questions.

Second, the law empowers any citizen to request information from the government and obliges the government to provide any such documents that are not classified. Third, it reduces the terms of confidentiality of documents designated as top secret, secret, and undisclosed for 25, 15, and 5 years respectively, and ends the possibility of renewal of these periods.

This law was a bold signal from the government that it was beginning to address endemic public corruption.  But if the FOI law sent a minor tremor through Brazil, the two laws that followed would cause a cataclysmic earthquake.

We’ll discuss those in the next posts, but if you can’t wait that long, see our ebook and related materials at law.richmond.edu/olympics.

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Andy Spalding is a Senior Editor of the FCPA Blog and Associate Professor at the University of Richmond School of Law. He’s the author of the ebook Olympic Anti-Corruption Report: Brazil and the Rio 2016 Games (available here). He’ll be a speaker at the FCPA Blog NYC Conference 2016.

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