Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
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The Brazilian Superior Court of Justice granted a mandado de segurança, protecting a journalist and a company’s right to access public information, by ordering the delivery of data concerning public expenses on official advertising by the Federal Administration between 2000 and 2010. The petitioners, Fernando Rodrigues and Folha da Manhã SA requested the information, but the request was previously denied by an administrative resolution that restricted access to the information. The Superior Court of Justice ultimately granted the action, as it found no grounds to justify the non-delivery of the data, which was considered of relevant public interest.
Folha da Manhã SA and journalist Fernando Rodrigues asked the Minister of the Secretariat of Social Communication of the Presidency of the Republic of Brazil for information regarding the distribution of funds for official advertising between 2000 and 2010 in the following categories: (a) type of advertising; (b) type of media; (c) media outlet; and (d) advertising agency. In response, they only received information regarding the type of media for which public funds were allocated and the total amount, which was over one billion reais.
In the response, the authority refused to provide the information in order to presumably “preserve the media negotiation strategy promoted annually by the Secretary of Communication. Disseminating this information is contrary to the public interest since it implies the loss of the Administration’s negotiation capacity and may result in damage to the treasury by making it difficult to obtain better prices in media contracting” [p. 4].
Dissatisfied with the response, the petitioners filed a mandado de segurança based on the violation of their right of access to public information and the principle of public administration disclosure provided for in Articles 5, XIV, XXXIII; 37, paragraph 3, II; and 220 of the Brazilian Constitution of 1988 . In addition, they requested that the authority provide them with the data through the means of communication that they had originally requested.
The Brazilian Superior Court of Justice had to decide whether a public authority can restrict information that has not been classified as such and whether it can, therefore, refuse to deliver it to citizens who have requested it with certain specificities.
In its reasoning, the Superior Court of Justice recognized the legitimate, legal, and reasonable interest of the petitioners, whose job is to inform the public. In this sense, it pointed out that the information and amounts requested are of evident collective interest, which deems the constitutional exceptions of protection of the security of society or the State (those exceptions that would allow to keep it classified) inapplicable. Therefore, the Court determined that the general rule of disclosure and accessibility of information should prevail in this case.
In addition, it argued that the reason presented by the defendant authority for not delivering the documents–preserving the media negotiation strategy– was inconsistent from a judicial standpoint with the “primary, basic and fundamental duty to make available to the public, the citizens and the press, the expenditures made by the administrative entities” [p. 8]. In this sense, it stated that the grounds presented were invalid if they violated fundamental precepts of direct and immediate application in accordance with the Brazilian Constitution.
The Superior Tribunal of Justice granted the guardianship in the terms requested and determined that the data be delivered within a reasonable period of time, not exceeding 30 days.
 Federal Constitution of Brazil of 1988
Art. 5º “XIV – everyone is guaranteed access to information and protects the secrecy of the source when necessary for professional practice;”
“XXXIII – everyone has the right to receive from public bodies’ information of their particular interest, or of collective or general interest, which shall be delivered within the legal term, under penalty of liability, except those whose secrecy is essential for the security of society and of the State; […]
The direct or indirect public administration of any of the Powers […] shall obey the principles of legality, impersonality, morality, divulgation, and efficiency, and also the following: […]
3º The law shall discipline the forms of user participation in the direct and indirect public administration, regulating especially:
II – the access of users to administrative records and information on government acts […].
The manifestation of thought, creation, expression, and information, under any form, process or vehicle shall not be subject to any restriction, subject to the provisions of this Constitution”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision created an important precedent regarding the limits to the State’s refusal to provide data and information of public interest. It established that public authorities must strictly comply with the Constitution and reaffirmed the general rule of disclosure of information regarding public activity, which includes official advertising.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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