Case Summary and Outcome

Justice Rapporteur Alexandre de Moraes of the Supreme Federal Court (STF) granted a preliminary injunction, suspending a Provisional Measure issued by Brazilian President Jair Bolsonaro in light of the spread of COVID-19. The Provisional Measure restricted provisions of the Access to Information Act suspending deadlines for public bodies to respond to information requests and demanding that information requests be presented again after the public crisis was over. The Federal Council of the Brazilian Bar Association (CFOAB) questioned the Provisional Measure, defending Brazilians’ right to access public information. Justice Rapporteur Alexandre de Moraes reasoned that the Provisional Measure would turn the exception – confidentiality of public information – into the rule, thus damaging the public administration principles of disclosure and transparency. Thereafter, the full session of STF confirmed the preliminary decision delivered by Justice Rapporteur Alexandre de Moraes.

Facts

Law no. 13,979/2020, published in Brazil on February 6 2,020, set forth several measures for the country to face the COVID-19 pandemic. On March 20, Legislative Decree no. 6/2020 officially declared a state of emergency in the country. Within this context, on March 23, Brazilian President Jair Bolsonaro issued the Provisional Measure no. 928/2020, which regulated requests for public information guaranteed by the Brazilian Access to Information Act (Law no. 12,527/2011) during the state of emergency.

Provisional Measure no. 928/2020 suspended the deadlines for responding to information requests by public administration bodies or entities whose employees usually relied on face-to-face contact with the public but were now subjected to quarantine, working from home or similar. The suspension also applied to public agents or sectors primarily concerned with measures to deal with the emergency situation caused by the spread of COVID-19. Moreover, the Provisional Measure demanded pending requests to be presented again after the state of public crisis was over and ruled out the possibility of appealing against negative responses to information requests.

As a result, the CFOAB argued that the Provisional Measure no. 928/2020 was formally unconstitutional, as it failed to respect the separation of powers and did not meet the relevance and urgency requirements which are necessary for the issue of Provisional Measures. Additionally, CFOAB considered the measure materially unconstitutional, since it restricted the rights to information,  transparency and disclosure of public information. Thus, CFOAB filed a Direct Unconstitutionality Action with an injunction request before the STF.

After analyzing the case, Justice Rapporteur Alexandre de Moraes granted the injunction, which was confirmed in a later ruling by the full session of the STF.

Decision Overview

The injunction order was analyzed by Justice Rapporteur Alexandre de Moraes, who based his decision on the analysis of injunction requirements: fumus boni iuris (the probability of the claimant being right) and periculum in mora (actual risk to the proceeding’s outcome in case there is no quick answer from the Court). After that, the full session of the STF confirmed the injunction granted by Justice Moraes.

The main issue before the Court was whether the Provisional Measure resulting from the pandemic was excessively restricting the right of access to public information, based on the principle of publicity in the public administration. The Brazilian Law on Access to Information, aiming to promote transparency in public bodies determines that advertising is the rule, and confidentiality, the exception.

CFOAB claimed that the Provisional Measure was formally unconstitutional, since the Brazilian Access to Information Act already provides rules for crisis scenarios, which are less restrictive to the right to information. Additionally, CFOAB considered that the requirements of relevance and urgency, necessary for the issuance of a Provisional Measure as provided in Brazilian Federal Constitution, were not present.

The CFOAB claimed that the Provisional Measure was also materially unconstitutional because it restricted the constitutional rights to information, transparency and disclosure, considering the measure (i) suspended deadlines for responding to information requests; (ii) violated due process by preventing appeals against negative responses; and (iii) imposed an excessive burden on citizens by demanding that they present requests again after the state of public catastrophe was over.

The Provisional Measure is an instrument to be used by the President in cases of relevance and urgency, since it has the force of law and is effective as soon as it is published. Thus, Justice Rapporteur Alexandre de Moraes considered that the Court should perform a political convenience judgment when analyzing whether the measure should be suspended, because of the seriousness of its possible consequences.

Justice Moraes ruled that the requirements for granting the injunction were present, since the Provisional Measure would turn the exception – confidentiality of public information – into the rule – and access to public information into the exception, thus damaging the public administration principles of disclosure and transparency. Those principles embody the State’s obligation to provide the requested information, under penalty of administrative, civil and criminal liability – with the exception of constitutional cases of secrecy. Moreover, the Justice highlighted that the Brazilian Constitution expressly mentions the disclosure principle as one of the indispensable norms for public administration.

The Justice also argued that the citizens’ political participation in a representative democracy can only be strengthened in an environment of total transparency in which people can express different opinions on public policies adopted by the government. The Justice mentions, in this sense, Justice Holmes, who affirmed individuals’ need to exorcise the “politics of distrust” and democratic self-determination, in order to freely exercise their suffrage and opposition rights.

According to the decision, access to information is necessary to fully exercise democratic prerogatives. Therefore, the disclosure of public information may only be exempted in the event of a superior public interest. Thus, except under certain situations, the public administration has a duty of absolute transparency when conducting public affairs.

Finally, Justice Moraes concluded that the Provisional Measure did not establish exceptional and concrete situations in which it would be justifiable to restrict access to information. On the contrary, it transformed the constitutional principles of disclosure and transparency into an exception, reversing the purpose of constitutional protections for the free access of information by Brazilian society.