Transition tries to exit to fulfill promise of revoking one hundred years of secrecy without violating Data Law

Report from the newspaper O GLOBO shows that the future government intends to revoke the 100-year secrecy imposed by the current government on some of its actions. The report informs that the transition team is looking for a way to carry out this revocation without violating the General Data Protection Law. Dr. Matheus Puppe, partner in the TMT, Privacy & Data Protection area at Maneira Advogados, was interviewed to comment on the matter.

Transition tries to exit to fulfill promise to revoke confidentiality for one hundred years without violating the Data Law

To revoke Bolsonaro government measures it will be necessary to analyze case by case. Team prepares standard proposal with clearer criteria to be followed

By Aguirre Talento — Brasília

12/12/2022

Campaign promise from the elected president, Luiz Inácio Lula da Silva (PT), the overturn of the hundred-year-old secrecy imposed by Jair Bolsonaro's government comes up against the General Data Protection Law. The so-called LGPD, which has been in force since 2020, prohibits the disclosure of certain personal information about citizens. Technicians assisting the PT member concluded that it is not possible to carry out a “revocation” and that it will be necessary to analyze each case on a case-by-case basis. The Transparency, Integrity and Control nucleus of the transition team prepares a proposal with a legal basis so that Lula can honor what he promised, without running the risk of having to explain himself to the Court.

The group is considering proposing the creation of a standard establishing clearer criteria to be followed by the new government to decide whether information violates someone's “private life” or presents a risk to national security. One of the possibilities would be a presidential decree or even a technical note from the Comptroller General of the Union (CGU) establishing the guidelines.

One way would be to partially disclose the documents, keeping certain information hidden, with stripes. The final word rests with the CGU, responsible for ensuring transparency instruments in the federal Executive.

Over the last four years, the Bolsonaro government has turned into secret documents such as the names of the people who visited First Lady Michelle Bolsonaro at the Palácio da Alvorada, the entries of Bolsonaro's children at the Palácio do Planalto, the process initiated by the Federal Revenue on Senator Flávio Bolsonaro (PL-RJ) in the case of the rachadinhas and even diplomatic telegrams related to the arrest of the former player Ronaldinho Gaúcho, in Paraguay.

Subjective criteria

The Bolsonaro administration used to use an article from the Access to Information Law (LAI) to classify data as confidential. The legislation provides that information considered personal, relating to someone's “private life”, must be protected for one hundred years. It also establishes that information sensitive to national security can be kept confidential for 25 years.

The transition team assesses that the criteria used to support Bolsonaro's decisions are subjective. They understand that much of the prohibited information is of public interest and, therefore, should be open to consultation.

Participating in the discussion of the subject in this thematic group are names such as the former CGU minister Luiz Navarro, the lawyer and former president of the Presidency's Ethics Commission Mauro Menezes, who is responsible for the final report, and the Treasury attorney Jorge Messias, coordinator of the group and tipped to take over as Attorney General of the Union (AGU).

The analysis of the release of documents should be done on a case-by-case basis, as the future government team receives requests to release this information.

Intimacy protection

In a September study, Transparência Internacional Brasil (TI) pointed out that the lack of clear guidelines for disclosing information “appears to contribute to a growing trend of public authorities refusing to reveal information for highly controversial reasons, particularly under the current government of President Jair Bolsonaro.”

TI Brasil consultant Guilherme France agrees that there is a need to provide “more precise guidance”.

— Requests for access to information are often denied because they are considered “disproportionate”, “unreasonable” or “contrary to the public interest”. It is important to better define these terms and expressions to avoid an excessively restrictive interpretation of the Access to Information Law - he argues.

Experts in transparency and LGPD say that it is possible to reconcile the disclosure of information of public interest with the protection of privacy.

Lawyer Matheus Puppe, partner in the Privacy & Data Protection area at Maneira Advogados and member of the Judiciary Integrity Committee (CINT), says that the next government may give new interpretations to confidentiality rules.

— National security is a very broad, generic justification. We are dealing with a transition. Another government official may assess that it does not pose any risk to national security, as long as it does not unduly expose someone's data - he explains.

Lawyer Samantha Sobrosa, digital law supervisor in the data protection area at Russell Bedford Brasil, says that the administration needs to justify the existence of public interest in disclosing certain data.

— It can only be done when serving a public purpose, as stated in the LGPD. This purpose needs to be brought to the citizen in a transparent way, precisely to demonstrate the public interest in accessing information that was considered confidential — he summarized.

Privacy and data protection specialist at Viseu Advogados, lawyer Antonielle Freitas states that “political acts do not fit into the conditions defined for confidentiality”:

— Confidentiality cannot be used to prejudice the investigation of irregularities involving the person to whom the document refers. There are relativizations (in secrecy) considering politically exposed people, representatives of power, who are accountable to society.

https://oglobo.globo.com/politica/noticia/2022/12/transicao-tenta-saida-para-cumprir-promessa-de-revogaco-de-sigilo-de-cem-anos-sem-fer-lei-de-dados.ghtml