Legality, Legitimacy and Logic – Why Expanding Secrecy Makes No Sense

Published in O Globo, authored by Gregory Michener & Irene Niskier.

While President Jair Bolsonaro spoke in Davos, his Vice President, Hamilton Mourão, and Chief of Staff, Onyx Lorenzoni, perpetrated a small change in Brazil’s freedom of information (FOI) law that will amount to big negative effects for transparency, the federal public administration, and the current administration. To recap, a secrecy decree (9690/2019) increased the number of authorities who can classify information as reserved, secret, and ultra-secret. The measure represents an affront to Brazil on three levels – it is illegal, it is illegitimate, and it defies the logic that sustains its approval. The only dignified option is its immediate abrogation, either by the Supreme Court or the President.

Legal It is Not

The first problem with the decree is its legality. Legal it is not, a charge substantiated by a request made by the Public Prosecutor’s Agency on the Defense of Citizen’s Rights that it be brought before the Supreme Court. It is illegal on two counts. It not only contradicts the principles of publicity and accountability affirmed by the constitution (article 5, among others), but it also flouts Article 27 of the FOI law (12.527), a provision that explicitly indicates which officials are authorized to classify information. Decrees cannot modify the content of laws; they can only regulate them.

Legitimately Illegitimate

The second problem with the decree is its political legitimacy. It is at odds with the LAI’s foremost guiding principles (article 3), including the government’s duty to promote a “culture of transparency”, “the development of citizen control over government”, and to uphold “publicity as the general precept and secrecy as the exception”. Furthermore, it is at odds with the platform upon which President Bolsonaro was elected, one that advances a frontal attack on corruption, crime and fiscal waste and privilege, and one upon which transparency is an absolute precondition. Finally, it is well known that secrecy is the first refuge of incompetence, waste, and corruption. By increasing the number of people who can deem information reserved – including many authorities that are politically appointed – the administration is increasing the possibility of subterfuge and transmitting the wrong signal to Brazilians and its regional and international partners.

Illogical – More Bureaucracy, Not Less

The third problem is that, contrary to the justification proffered by Vice President Hamilton Mourão, the decree will generate more, not less bureaucracy. Increasing the number of authorities who may deem information secret or ultra-secret from several dozen to over a thousand, not to mention the increase in authorities that may categorize information as “reserved”, will have one predictable result – an increase in the volume of classified information. A higher number of classifications, in turn, will generate a greater number of appeals, and appeals generate more not less work for the public administration. An increase in the volume of classified information will also require each agency to go through the laborious process of recording its classifications, as mandated by the LAI and Article 31 of decree 7724. Article 31 requires authorities to provide 10 different pieces of information about classified information, as well as keeping track of timeframes for declassification; and Article 32 requires all secret and ultra-secret information to be sent for verification to the final appeals committee (Comissão Mista). Given the burdens imposed by an increase in appeals and classification processes, the logic sustaining the decree’s necessity simply falls flat.

President Bolsonaro’s best option is to revoke the decree before the STF does so. By doing so, Bolsonaro may redeem the electoral covenant he made with Brazilians, illustrating his government’s commitment to legality and integrity.

Leave a Reply

Your email address will not be published. Required fields are marked *