Publications - 27/04/20

The Impacts of Coronavirus on the Legal Word: Brazilian Supreme Court, Supremo Tribunal Federal (STF), suspends Provisional Measure 928/20, which restricted the Brazilian Access to Information Law (Lei de Acesso à Informação)

On 03/23/20, Brazilian federal government published the Provisional Measure No. 928 (MP 928/20), amending Law No. 13.797/20, which provides measures to deal with the international public health crises resulting from the Coronavirus.

Article 1 of the MP 928/20 modifies Article 6-B of Law 13.797/20, suspending deadlines for answers to access to information requests in the bodies or entities of the public administration whose employers are subject to quarantine, teleworking or equivalent, regarding the established in the Brazilian Access to Information Law (LAI – Lei de Acesso à Informação), Law 12.527/11. Moreover, it established that requests for access to information pending a response must be reiterated within 10 days, from the date on which the period for recognizing public calamity ends. In addition, the aforementioned MP also foresees that the appeals attacking negative responses to request for information that are not admitted will not be accepted.

Two Ações Diretas de Inconstitucionalidade (ADIs 6347) were received by STF on 03/25/2020 presented, respectively, by the Rede Sustentabilidade party and by the Brazilian Bar Association (OAB), questioning, precisely, the constitutionality of article 6-B of Law 13.979/20, modified by MP 928/20.

The Federal Council of OAB argues, in ADI 6351, that the restrictions imposed by MP 928/20, which are (i) the suspension of time limits for the analysis of requests, (ii) the prerogative of reiterating requests for access of information pending response to be made only at the end of the public calamity period; and (iii) the inability to submit appeals for negative requests, are against the principle of due process and would enable the State to act arbitrarily.

The Rede Sustentabilidade party, on the other hand, considers that society´s right to information is being limited by this mentioned modification in the law. The inspection of the measures taken by the government in relation to the crisis created due to the pandemic would also be compromised from the changes implemented in MP 928/20.

The Brazilian Supreme Court (STF), when analyzing the wording of Article 1 of MP 928/20, granted the request for precautionary measures to the authors of ADIs 6347 and 6351, suspending the effectiveness of the aforementioned provision. The rapporteur of the case, Minister Alexandre de Morais, justified his decision by arguing that “the contested article intends to transform the exception – confidentiality of information – as a rule, removing the full impact of the principles of advertising and transparency”

Therefore, even in cases of public calamity of national repercussion, the Public Administration honors the Principle of Publicity (princípio da publicidade), as determined by the Brazilian Constitution, article 37.