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Evaluating Compliance with Freedom of Information.Pdf The Brazilian State and Transparency Evaluating Compliance with Freedom of Information Gregory Michener Luiz Fernando Marrey Moncau Rafael Velasco The Brazilian State and Transparency Evaluating Compliance with Freedom of Information Edition produced by FGV’s Rio de Janeiro Law School Praia de Botafogo, 190 | 13th floor Rio de Janeiro | RJ | Brazil | ZIP code: 22250-900 55 (21) 3799-5445 www.fgv.br/direitorio The Brazilian State and Transparency Evaluating Compliance with Freedom of Information Gregory Michener Luiz Fernando Marrey Moncau Rafael Velasco FGV’s Rio de Janeiro Law School Edition This Work is licensed under the Creative Commons license Attribution-ShareAlike 4.0 International To view the full legal license visit: https://creativecommons.org/licenses/by-sa/4.0/legalcode You have the right to: Share — to copy and redistribute the material in any medium or format. Adapt — remix, transform, and build upon the material for any purpose, including commercial. The licensor cannot revoke these freedoms as long as you follow the license terms. Under the following terms: Attribution — you must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but must not in any way suggest endorsement from the licensor. ShareAlike — if you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original. No additional restrictions — you may not apply legal terms or technological measures which would legally restrict others from use permitted by the license. Printed in Brazil This first edition was completed in June 2016 This book is in the Legal Deposit Division of the Brazilian National Library. Authors are responsible for all concepts and information presented in this book. Coordination Rodrigo Vianna, Sérgio França, Thaís Mesquita Cover Antonio Valério Diagramation Antonio Valério Reviser Ana Silvia Mineiro Catalographic card prepared by Mario Henrique Simonsen Library / FGV Michener, Gregory The Brazilian state and transparency: evaluating compliance with freedom of information / Gre- gory Michener, Luiz Fernando Marrey Moncau and Rafael Velasco. – Rio de Janeiro : Escola de Direito do Rio de Janeiro da Fundação Getulio Vargas, Centro de Tecnologia e Sociedade, 2016. 130 p. Em parceria com a EBAPE. Inclui bibliografia. ISBN: 978-85-63265-68-5 1. Transparência na administração pública – Brasil. 2. Direito à informação – Brasil. 3. Brasil. [Lei n. 12.527, de 18 de novembro de 2011]. 4. Poder judiciário – Brasil. I. Moncau, Luiz Fernando. II. Velasco, Rafael Braem. III. Escola de Direito do Rio de Janeiro da Fundação Getulio Vargas. Centro de Tecnologia e Sociedade. IV. Escola Brasileira de Administração Pública e de Empresas. V.Título. CDD – 341.3 Table of Contents Acknowledgments 11 Executive summary 13 Introduction 19 Chapter 1 – Methodology 25 1. General Audit 25 1.1. Setting up the field experiment; user identities to test for bias 27 2. The Judicial Branch Audit 28 3. Preparations; procedural rules to ensure realistic responses 29 4. Metrics 30 4.1. Defining what constitutes a response 30 4.2. Evaluating response accuracy rates 31 4.2.1. Accuracy evaluation criteria 31 4.2.2. Double coding of responses 32 4.2.3. Testing the reliability of double coding 33 4.3. Timeliness of responses 34 Chapter 2 – Results 35 1. Introduction 35 2. Aggregate analysis 35 2.1. Jurisdictional level analysis 36 2.2. Analysis by branch of government 41 3. The field experiment; user identities and question groups 46 3.1. Results; descriptive statistics 48 3.2. Statistical tests 49 4. Conclusions 51 5. Appeals; their place in the study 52 5.1. Introduction; background and procedure 52 5.2. Successful appeals; overturning unsatisfactory responses 53 Chapter 3 – Best practices and barriers to transparency 55 1. Introduction 55 2. Best practices 55 3. Barriers to Public Transparency 56 3.1. Requirements that the request be submitted or retrieved in person 57 3.2. Rejection of the request based on a broad interpretation of the “undue additional work” clause 58 3.3. Transmitting information in formats not processable by computers 60 3.4. Aggregation of information in a pattern different from the original request 62 3.5. Implementation of potentially intimidating procedures 62 Chapter 4 – Audit of the platforms used to manage FOI requests 65 1. Introduction 65 2. Information access barriers: a lack of compliant digital platforms 65 2.1. Impossibility of filing an appeal 66 2.2. Character limits 66 3. Evaluation of digital platforms 66 3.1. Methodology of evaluation; what constitutes a good FOI digital platform? 67 3.2. Submission of a confirmation email 67 3.3. Submission of a notification of response 67 3.4. Availability of a specific section for filing appeals 67 3.5. Use of log-in procedure instead of confirmation/protocol numbers 68 3.6. Summary 68 4. Comparative analysis of digital platforms 68 5. Conclusions 70 Part 2 – Judicial Branch Audit 71 Chapter 5 – Results 73 1. Methodology 73 1.1. Audit coverage 73 1.2. Development and submission of requests 74 1.3. Topics of requests 74 1.4. User identities: simulating the request process experienced by a regular citizen 82 1.5. Submission of requests 82 1.6. Appeals 82 1. 7. Field experiment; testing responses to justified vs. non-justified requests 83 2. Results 84 2.1. Results by request category 84 Request Category 1 85 Request Category 2 88 Request Category 3 90 Request Category 4 91 Request Category 5 93 Request Category 6 95 Request Category 7 96 2.2. Detailed results 98 2.3. Analysis of the courts 101 Chapter 6 – Barriers to transparency and access 103 1. Bureaucratic barriers 104 2. Legal and regulatory barriers, and misuse of exemptions 106 2.1. Excessively broad interpretation of exemptions 106 2.1.1. Disproportionate or unreasonable requests 107 2.1.2. Generic requests or requests requiring additional work 108 2.2. Misinterpretation of exceptions; active transparency and the format of documents 109 2.2.1. Requests for information already available in active transparency platforms 110 2.2.2. Questions regarding data format 112 Chapter 7 – Evaluating the platforms used to manage freedom of information requests 117 Conclusion 119 References 127 Index of tables Table 1 – Subjects of requests and number of submissions for each request 26 Table 2 – Kappa scores scale 33 Table 3 – Kappa score of the General Audit 34 Table 4 – Kappa score of the Judicial Branch Audit 34 Table 5 – Distribution of requests by user identities 47 Table 6 – Distribution of requests between institutional and non-institutional identity users 47 Table 7 – Chi-square test of differences in response rate 49 Table 8 – Chi-square test of differences in accuracy rate 50 Table 9 – T-test of differences in average response time 51 Table 10 – Results of hypothesis testing 51 Table 11 – Platform evaluation 69 Table 12 – Distribution of audited courts 73 Table 13 – Request topics of the Judicial Branch Audity 75 Table 14 – Requests by identity 82 Table 15 – Courts by group 84 Table 16 – Court ranking 102 Index of figures Figure 1 – Aggregate Results 36 Figure 2 – Aggregate analysis of average response time 36 Figure 3 – Federal level results 37 Figure 4 – Average response time at the federal level 37 Figure 5 – State level results 38 Figure 6 – Average response time at the state level 39 Figure 7 – Municipal level results 40 Figure 8 – Average response time at the municipal level 41 Figure 9 – Results by branch of government 42 Figure 10 – Average response time by branch of government 42 Figure 11 – Analysis of executive branches by jurisdictional level: states and federal government 43 Figure 12 – Average response time of executive branches by jurisdictional level: states and federal government 44 Figure 13 – Analysis of executive branches by jurisdictional level: municipalities and federal government 45 Figure 14 – Average response time of executive branches by jurisdictional level: municipalities and federal government 46 Figure 15 – Field experiment results 48 Figure 16 – Average response time for field experiment 49 Figure 17 – Aggregate analysis results of Judicial Branch Audit 85 Figure 18 – Results of Request Category 1 86 Figure 19 – Average response time for Request Category 1 87 Figure 20 – Results of Request Category 2 88 Figure 21 – Average response time for Request Category 2 89 Figure 22 – Results of Request Category 3 90 Figure 23 – Average response time for Request Category 3 91 Figure 24 – Results of Request Category 4 92 Figure 25 – Average response time for Request Category 4 93 Figure 26 – Results of Request Category 5 94 Figure 27 – Average response time for Request Category 5 94 Figure 28 – Results of Request Category 6 95 Figure 29 – Average response time for Request Category 6 96 Figure 30 – Results of Request Category 7 97 Figure 31 – Average response time for Request Category 7 97 Figure 32 – Field experiment results: response and accuracy rates 99 Figure 33 – Field experiment results: average response time 100 ACKNOWLEDGMENTS A public transparency audit is an intensive undertaking and demands extreme organization and coordination – especially in the case of two evaluations involving dozens of jurisdictions, approximately 60 questions and more than 700 FOI re- quests. Many people have contributed to this initiative since it began to take shape over a year ago. Firstly, we would like to acknowledge the essential support provi- ded by the Open Society Foundations (OSF) without which this work would pro- bably not exist. The editors would like to thank the whole team who worked on this project. Gratitude goes to Karina Rodrigues Furtado from the Brazilian School of Public and Business Administration (EBAPE) who, as research assistant to Gregory Michener, examined the methodology and results of each evaluation of transparen- cy in Latin America since 2004 – a task which ultimately inspired the Transparency Audit Network and the partnership between the Getulio Vargas Foundation (FGV) at EBAPE and the Center for Technology and Society at the FGV Law School, Rio de Janeiro (FGV DIREITO RIO).
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