GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES)
SLOVAKIA
Organizaciones promotoras
ASOCIACIÓN AMBIENTE SOCIEDAD
GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES)
Asociación Ambiente y Sociedad - AAS Centro de Derechos Económicos y Sociales - CDES Centro de Estudios para el Desarrollo Laboral y Agrario – CEDLA Confederación de Pueblos Indígenas de Bolivia – CIDOB Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica - COICA Derecho, Ambiente y Recursos Naturales - DAR Foro Ciudadano de Participación por la Justicia y los Derechos Humanos - FOCO Forum Solidaridad Perú Fundación Ambiente y Recursos Naturales - FARN FUNDAR Centro de Análisis e Investigación Fundación para el Desarrollo de Políticas Sustentables - FUNDEPS Instituto Brasilero de Análisis Sociales y Económicas – IBASE Instituto de Estudios SocioEconómicos - INESC Red Jurídica Amazónica - RAMA
January 2014 GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES)
PROMOTING ORGANIZATIONS: Asociación Ambiente y Sociedad - AAS Centro de Derechos Económicos y Sociales - CDES Centro de Estudios para el Desarrollo Laboral y Agrario – CEDLA Confederación de Pueblos Indígenas de Bolivia – CIDOB Coordinadora de las Organizaciones Indígenas de la Cuenca Amazónica - COICA Derecho, Ambiente y Recursos Naturales - DAR Foro Ciudadano de Participación por la Justicia y los Derechos Humanos - FOCO Forum Solidaridad Perú Fundación Ambiente y Recursos Naturales - FARN FUNDAR Centro de Análisis e Investigación Fundación para el Desarrollo de Políticas Sustentables - FUNDEPS Instituto Brasilero de Análisis Sociales y Económicas – IBASE Instituto de Estudios SocioEconómicos - INESC Red Jurídica Amazónica - RAMA
ASSOCIATES
Margarita Flórez Nora Fernandez Javier Gomez César Gamboa Caio Borges Francisco Rivasplata Mariana González Gonzalo Roza Iván Bascopé Roland Widmer (WRI) Ricardo Verdum
Editor Derecho, Ambiente y Recursos Naturales: Jr. Coronel Zegarra N° 260 - Jesus Maria (Lima 11) Telefone: (511) 2662063 Email: [email protected] Página da web: www.dar.org.pe
Design and layout: Realidades S.A. Augusto Tamayo N° 190, of. 5 – San Isidro (Lima 27) Email: [email protected] Página da web: www.realidades.pe
Coordinator of publication: Israel Gordaliza Carrillo
Guide to quote the publication: GUIDELINES FOR DISCUSSION. Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES). AAS, CDES, CEDLA, CIDOB, COICA, DAR, FOCO, Forum Solidaridad Perú, FARN, FUNDAR, FUNDEPS IBASE, INESC y RAMA. 52 pages.
First issue: January 2014, 4000 copies Hecho el Depósito Legal en la Biblioteca Nacional del Perú N° 2014-01171 ISBN: 978-612-4210-07-5
The reproduction partial or complete of this book, per computer processing, their transmission in any form or means, electronic, mechanical, photocopying or other, with the simple indication of the source when it is used in publications or dissemination by any means.
This publication presents the opinion of the authors and not necessarily the views of Rainforest Foundation Noruega, Global Witness and Charles Stewart Mott Foundation. This publication has been made possible thanks to the contribution of Rainforest Foundation Noruega, Global Witness and Charles Stewart Mott Foundation.
Printed y Made in Peru. CONTENIDO
Presentation 7
Executive Summary 9
First part: General Ideas 13
I. The need of a Policy of Access to Information based on Governing Principles 15 II. Preliminary analysis of Brazilian Law of Access to Information 17 III. Why a Transparency Policy and Access to Information is necessary for the National Brazilian Development 23 Bank (BNDES) if there is already a Transparency Law in Brazil? IV. Principal limits for the implementation of a Policy of Access to information in BNDES 24 1. Sovereignty of states? 24 2. Dependency of BNDES to the Brazilian external policy? 25 3. Bank Secrecy? 26 4. Regarding the quality of information that is disclosed 30 V. What are the benefits the Bank can get with the implementation of a Transparency Policy and Access to 31 Information? Second part: Guidelines for discussion 33 I. Introduction to “The Policy” II. The Policy 35 1. Governing Principles 36 2. Exceptions 36 3. Information relating to the institution 37 4. Information relating to the Bank’s operations 38 III. Aspects relating to the execution and application of the Policy 39 1. Procedures for the access to information 39 2. Appeal / mechanism procedure 39 3. Classification and declassification of information 40 4. Aspects bound to the correct implementation of the Policy 41 IV. Promotion, monitoring and revision of the Policy 41 V. Annex: information that should be routinely disclosed by the Bank 43 44
International Rivers, Environmental Socio International Institute, IBASEand DAR inNovember 2013inBrasilia. This event allowed a thisdocument waspresentedAfterwards, in the Third regarding Seminar Transparency atBNDES,organized by INESC, (IBASE); Amazon Legal (RAMA), Network andindividually, suchasRoland experts Widmer andRicardo Verdum. Foundation for ofSustainablePolicies theDevelopment andEconomic Analysis ofSocial (FUNDEPS);Brazilian Institute CONECTAS Rights, Environment HumanRights; and Natural Resources (DAR); FUNDAR, Center ofAnalysis and Research; (AAS); Center for (CDES); Center Rights Economic andSocial for Work andAgricultural Studies(CEDLA); Development inthisfirststageofthedocumentpreparationThe organizations are: thatparticipated Environment Association Society and would prevent theimplementationfrom a Transparency Policy applicableto itstotal operationswasperformed. AccessInformation to theBankandcounter-arguments related to thelimitsstated by theinstitution’s representatives that of thisstrategy, acommitmentoftheregion’s organizations to civilsociety theguidelinesofaPolicy work Proposal of As a result of this second seminar, an analysis, coordination and influence strategy was proposed. Within the framework Law.Information thatcomplementtherecently promulgated Accessimplementation ofanInformation Policy Access necessary to Brazilian bothseminars, thereIn wastimeto exchange ideaswiththeBank’s representatives regarding thereasons the thatmake strategyestablish ajointwork amongtheregion’s agendasandcommonobjectives. to articulate civilsociety ofa part establish commonguidelinesthattake Transparency Policy Access andInformation to BNDESProposal andalso region”, organized by Rights,Environment andNaturalResources (DAR) wasto andIBASEinJune2013whoseobjective This demonstrated theneedofasecondseminarexecution: andaccessto BNDESinformation withinthe “Transparency processesin prior MultilateralDevelopment Banks ofinfluencein BankandintheNational were notbeingadded. and, intheflow to of alesserextent, regional options, investments. thelessonslearned In addition to thelittlearticulated mainly focused in the projects and public policies cycle, out, parties around and common agendas was carried objectives Among theresults obtainedintheworkshop, aninitialdiagnosis thatshowed abreak-up andorganizations ofnetworks others. topics suchastransparency, safeguards andcontrol monitoring criteria, mechanisms, andsocio-environmental among that soughtto exchange regarding experiences theBank’s investments withintheregion in andanalyze its performance Investment inLatinAmerica”, organized andEconomic Analysis(IBASE)inMarch ofSocial 2013, by theBrazilianInstitute amongBrazilianorganizations beganintheseminar andfromThis effort countries collective otherLatinAmerican “BNDES withintheregion. thatthisonehasinthecountries importance in promoting andtheaccessto theinformation thetransparency Bank(BNDES),given oftheBrazilianDevelopment the The documentwe present istheresult amongdifferent ofajointwork regional interested organizations ofthecivilsociety PRESENTATION
GUIDELINES FOR DISCUSSION 7 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES)t Nevertheless, hope that other participation civil society we organizations among the Bank and region spaces and debate of all the parties in the BNDES activities. of the relationships the strengthening involved that allow The purpose of this document is to contribute with provision, result of a collective of a work, result serveswhich provision, contributewith purpose and meetings The is to document this of for that will startthe Bank and the Brazilian civil societydiscussions among within the framework Forum of the Participation with of transparency It 2014. with the topic in February that the Bank has foreseen meetings is also taken account for into abroad. the BNDES investments 2015 regarding civil society from the region feedback to the document by a greater number of parties involved in the BNDES’s influence process. Thus, we present the we present Thus, process. influence of parties number the BNDES’s in a greater involved by document the to feedback the Brazilian Development(BNDES)”, Bank Implementation discussion. for of Information Access of a Policy for “Guidelines that continues. process of a with the first seminar), of a first stage (initiated the culmination which means
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 8 GUIDELINES FOR DISCUSSION compliance of Brazilian internal regulations.compliance ofBrazilianinternal complywiththeregulations where ofthecountries theinvestmentit participates isdeveloped. This alsoappliesto the in theprocedures ormechanismsfrom theBankto ortheonesinwhich guarantee thatcompaniesare supported thissense, legalscope. to itisrequired respectexceeds indicate In thathumanrights thestrictly higherclarity it isnecessary regulations, most of them have concepts, and structures that more principles or less adjust to general frames,international relation toIn thesovereignty issovereign ofStates, we understandthat,althougheachcountry andmanagesitsown that isnotdisclosed. the institutional design moremake favorable and progressive with procedures to prove the possible information damage the need of independent mechanisms to with its clients) and considering (to build trustworthiness Bank) and external of publicinformation anddigital files, amongothers. Allthisfrom level aninternal (to improve thegovernance insidethe ofmethodshorizontal dialogue,construction thereinforcement oftheBank’s proactive information andthesystematization Then we state theneedto execute theinnovation andthe thecontent oftheLaw withthespecificneedsofBank, procedure ofaccessto information. with thisindex. Three have categories provisions; beenanalyzed: (i)theregulatory (ii)theinstitutionaldesign, and(iii)the Access to (IDAIM), Information inMexico identified of theRight aswell andnationalpractices asthegoodinternational Law regardingAmerican Access theInformation oftheOrganization Law States OAS), (Model oftheAmerican theIndex asareference withananalysisoftheBrazilianLawThat ofAccess iswhy taking to we Information, Inter- start theModel where Access anInformation Law exists. representatives, suchasthesovereignty andbanksecrecy. ofStates, policy thedependenceto external This inacontext into Access accountsomelimitationspreviouslyInformation Policy outlinedby withintheBankisnecessary,BNDES taking ofthedocument we present thissense, someideasandinitialarguments inthefirstpart explainingwhyIn an inprojects thatcouldpresent onbehalfofdevelopment. tension withhumanrights Brazilian companiesthatparticipate in themore role active ofBNDESattheregional scopeto encouragetheBrazilianeconomy andthe strengthening of its institutionalpeculiarities, to adaptto thehigheststandards andinformation oftransparency access. This needisjustified However, suchprogress, acknowledging thatBNDESadoptsaPolicy ofAccess given to we Information, considernecessary right. progressthat establishes standards, that mean important guidelines in the and principles respect and guarantee of this Brazil, ofaccessto information theright FromIn isaconstitutionalright. 2011,thisconstitutionalmandate becameaLaw EXECUTIVE SUMMARY
GUIDELINES FOR DISCUSSION 9 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) In this regard, a Transparency Policy for the Bank must be based on the principles that guide the Brazilian Law of Access to to the Bank must be based on the principles of Access the Brazilian Law that guide for Policy Transparency a In this regard, Thus, necessary are of this right. the respect guarantee to Information and also in those that, without being inside the law, Information; to Clear and Delimited of the Access in favor the Presumption have included we among the principles that are Information; Acknowledgement request to and Routine Dissemination; Clear and Simple Procedures Automatic Exceptions; Availability. Translations Information to and of the Right Appeal and Revision; Access to Universal In the second part of the document, we present a Policy of Access to Information base proposal for the Bank that considers for InformationIn to base proposal the second part Access of a Policy present of the document, we International National and manage other National Development that Banks, the highest transparency Financial standards the principlesInstitutions Law. Information and mechanisms of the Brazilian Access and also, The first part finishes with a description of the benefits that the Bank may obtain with the implementation of a Transparency first partThe finishes with a description may obtain with the implementation of that the Bank of the benefits of dialogue and the and strengthening the promotion Among these benefits are Information to Policy. and Access assuringothers), among its movements, indigenous interactionpartiesthe with private sector, concerned society, (civil participation; and informed and diffusion in the civil societyresponsible role of the of the activities awareness and the the evaluation development; of the operation and the improvement of national and regional institution in the process governability; and battle against the corruption and secrecy; the prevention and socio- the prevention of the institution’s credibility. of the institution’s conflicts and risks management and the improvement environmental Regarding the bank secrecy, several arguments are outlined to access the Bank information considering said limit, among access the Bank information outlined to are arguments several the bank secrecy, Regarding of keeping with the responsibility said involved human rights are where praise that information them, the need to human rights clarity to respect must be superimposed bank secrecyThe to and must have the in secret. information requirements said rights does not violate and is defined in the that is not given that the information and proof exceptions Law. by requested Regarding the dependence from the Bank to the Brazilian externalBrazilian the necessaryit is to Bank the higher clarity policies, from dependence the have Regarding the of to the Bank does at a political level, have, we the information to of projects election. and the process According requirements determine the priority to the ones that relate of the projects that will be are major decision but the governments not have carried the Bank. out by evaluation procedure is a company In there this level, at a technical On the other hand, executed. adopt the highest socio- to companies can be forced where of independence and it is here is a higher level there stage, as it occurs with other National Development Banks and Export and transparency standards, and Importenvironmental Banks.
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 10 consciousness over therole oftheinstitutioninprocess ofdevelopment andalsofor operationof democracy. theright asbasicandfundamentalinstruments,the accountability to create adialoguewiththepublicandincrease andkeep its firm commitmentwithtransparency, BNDESwouldandits to Information, confirm reflect theaccess to and information fresh institution.Ontheotherhand, andtransparent by establishingaPolicy imageto ofAccess allusersofthisimportant hand, itinvolves organizational anew culture thatfacilitates laborrelations, more thework efficientanda makes projects institutionsbecauseithasbenefits Ontheone everyone. for andtheonesfrom itssubsidiary operation andperformance Finally, to indicate that a Policy of Access it is necessary wouldto Information substantively affect the BNDES development, insideoroutsideBrazil.activities thathave theinstitution’s andotherparties the projectsorprograms itsclientsorpartners from theBank, financing for one hand, the one that refers to the institution’s structure operation. and internal On the other hand, the one related to This documentalsoincludesanannexregarding theinformation Onthe thatshouldberoutinely publishedby theBank. are presented inthedocument. being againstit,propose amechanismofproper appeal, according possibilities oftheinstitution.Both to thepeculiarities restraint thissense, tocompliance. whattheBrazilianLaw itcanbestrictly In ofAccess states to or, Information without On theotherhand, a Transparency Policy mustincludemechanismsorprocedures ofappealthatassure theright the automatic andpassive androutine transparency. dissemination,theaccessto thedecisiontaking operations andto establishprocedures for theinformation access, according asinstitutionthatincludes to itspeculiarities addition,a In Transparency Policy for theBankrequires to facilitate information related to theinstitutionandto its to avoid initsinterpretation thosecontainedintheBrazilianLaw ofAccess andconsidering theambiguity to Information. Additionally, in relation to the exceptions, a Transparency Policy for them, trying delimit and restrict the Bank must clearly
GUIDELINES FOR DISCUSSION 11 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) SLOVAKIA First part General Ideas SLOVAKIA
2 http://www.bndes.gov.br/SiteBNDES/bndes/bndes_pt/Institucional/acesso_a_informacao/index.html 1 N° 12.527/2011 the website launchedin2007,themeasures adopted by theBankto give complianceto theLaw ofAccess to Information access to by information civilsociety. thatmustbewelcomed andacknowledged of The section Transparent BNDESfrom thelastyears, outpromisingOver progress Bank(BNDES)hascarried theBrazilianDevelopment regarding and transparency topic. examplesofsuchlimitationsare: Some systemthe scopesofcurrent oftheinstitutionandfrom thathave transparency outinthis theefforts to bestillcarried information from limitationsto theBankcontinueexisting, theaccesstoAt certain thesametime, whichtells important related to BNDES,butalsoindifferent ofthe countries region andin regional multilateral organizations suchas OAS. andcurrentadapt to accessto thehighesttransparency information standards, notonlyinotherfinancinginstitutions steps inthistopic saidprogress, to acknowledging to important emphasize thattheBankshouldnottake itisnecessary at thesametime, reflectitscommitmentwiththeaccess to information andtheinstitutionaltransparency. However, Certainly, thesemeasures constitute aninstitutionprogress inpursuitof a greater initsactivities,and, transparency examples thataccountfor thisprogress. transparency as one of the most valuable principles by as one of the the most institution valuable regardingprinciples transparency to society Principle 1:Presumption infavor ofaccess itswebsite, commitmentwith to information.In itsfirm theBankclarifies system: should guidetheinstitutiontransparency adapting and applying and operational Policy of Access tobased on the following Information that governing principles process civilsociety,For alongwiththeconcerned aimedatpreparing, that,theBankshouldinitiate aparticipatory be adapted to thecurrent higheststandards intheregion. for thecurrent andthatseekto existinginstitutionallimitations totransparency correct alltheinstitutionanditsactivities adopts aproper reference Policy ofAccess thatestablishesaparticular to ininformation Information framework accessand thissense, andinaccordanceIn withthisrecent thattheBank process aimed atrevealing itsactivities,itisnecessary I. OFACCESSTHE NEEDOFAPOLICY TO INFORMATION BASEDONGOVERNING PRINCIPLES http://www.cgu.gov.br/acessoainformacao/acesso-informacao-brasil/legislacao-integra-texto-completo.asp Poorly • to outoutsideofBrazil). accessto Difficulty information projects (mainlythosecarried regarding certain • Lackofsystematization ofprojectsandprograms ofthetotality financedby theBank. • ofthewebsite). Needoftranslationsto otherlanguages(bothdocumentsandsections • system to request to institution’s usethee-SIC Difficulty for non-Braziliancitizens). information (particularly • with initialsandnumbershard to understand, etc). find soughtinformation, barely useof terms understandable for thecommoncitizen, identificationofdocuments 1 ofBrazilandthegreater ofinformation available quantity inthewebsite oftheinstitutionare concrete accessible formats to know the information (use of extended tables in Excel, 2 lack . In turn, it that, determines turn, . In of true search engines to
GUIDELINES FOR DISCUSSION 15 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) website. 7 , establishes a list of reasons why certain why may , establishes a list of reasons information 4 : on the one hand, and preferably, through e-SIC of System through (Electronic system preferably, and hand, one the on : 5 . from the Bank’s from Conosco the section Fale through , and on other hand, 3 6 http://www.cgu.gov.br/acessoainformacao/acesso-informacao-brasil/legislacao-integra-texto-completo.asp Information Service) the Citizen to The Law of Access to Information to Nº 12.527/2011, in its article of Access Law The 23 Although the Bank must become engaged to guarantee the presumption the presumption guarantee to Although the Bank must become engaged exceptions. 2: Clear and delimited Principle it is also true that certain information, of the access to principle particular in favor cases in which the dissemination of must it parties the for why that is concerned, harmful beneficial than more certain interests or result may information principleto the restricted a and clearly list of exceptions delimited to that, the Bank must prepare Due confidential. remain access based on criteria ambiguity In that cannot allow of the information in its interpretation. turn, in favor of presumption that by case basis, must be subject on a case the information of a harmtest that determines, as confidential, be declared to it. access to to public interest damage to causes greater dissemination of said information In turn, although the Brazilian Law of Access to Information Nº 12.527/2011 considers this principle, it is importantInformationis it principle, Inthis considers 12.527/2011 Nº to Access of turn, Law Brazilian the the that although of in favor principle policy whose governing and guide is the presumption Bank adopts a proper information of access to restrictionsand applicable clearlythat instrument regime the dissemination establishes a proper have may so it access, the particularto the institution. by owned information Therefore, and as per this principle, it must be presupposed that the institution makes available all the information for the for institution makes that the the information all available it must be presupposed and as per this principle, Therefore, party’s) the corresponding a kind to or third except public (own according of restricted and clearly information, delimited regime. exceptions However, as it works currently, the institution’s transparency system is far from effectively complying with one of the of one with complying effectively from transparencyfar is system institution’s the workscurrently, it as However, majority development the national of access systems, in the great fundamental principles be found may in access and the main international as the majority financing institutions regulatorybanks, of the countries frameworks of the from quantity (particularly of information A great information. of the access to in favor the principle of presumption region: not appear in the such as: it does society reasons Brazil) is not truly accessible to those projects outside because of many is requested. when it by the Bank offered or it is not interpret, find or to or it is difficult website, institution’s In this sense, it is clear that the Bank has recently acknowledgedIn its transparency has recently is clear that the Bank it make and efforts system this sense, to broaden the the public. accessible for more information 3 http://www.bndes.gov.br/SiteBNDES/bndes/bndes_pt/Institucional/acesso_a_informacao/index.html 4 5 http://www.bndes.gov.br/SiteBNDES/bndes/bndes_pt/Institucional/BNDES_Transparente/ 6 http://www.acessoainformacao.gov.br/sistema/site/index.html?ReturnUrl=%2fsistema%2f 7 http://www.bndes.gov.br/SiteBNDES/bndes/bndes_pt/Navegacao_Suplementar/Fale_Conosco/index.html in compliance with the Law Access to Information Nº 12.527/2011 of Brazil, lets the public know a great quantity public know lets the Information of to 12.527/2011 of Brazil, Nº a great Access with the Law in compliance actively or passively information, The Bank has two procedures so the citizens may request request may so the citizens Bank has two The procedures information. request to 4: Clear and simple procedures Principle website its in available not is that information Currently, the Bank disseminates a wide range of information, both institutional and its projects and activities. However, and activities. However, both institutional and its projects a wide range of information, the Bank disseminates Currently, and routinely: part is not disclosed automatically generally said information the is uploaded to great of the information On the its preparation. application or after a long time from an information by requested after being expressly website not using other its website, is through automatically disclose information means to exclusive almost the Bank’s other hand, an important access. information which represents limitation for means or instruments, As per the active transparency, the Bank must reveal y make accessible the Bank must reveal per the active transparency, dissemination. As and routine 3: Automatic Principle the regarding information quantity wide a free of mechanisms, available different through and routinely and automatically projects, and financed strategies its operational policies, its guidelines and institutional regulations, institution structure, the active of decision-making transparency that falls into categoryits processes other information and any and does not one of the exceptions. to correspond be classified as confidential. However, this list is not sufficiently restrictive and delimited and the mentioned reasons are reasons restrictive and the mentioned this list is not sufficiently and delimited However, be classified as confidential. favor in principle the of presumption to In of exceptions list ambiguous. turn,a proper Bank has that the essential it is really to the apply that specifically that is managed. information of the access to kind of information
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 16 to Information in Mexico (IDAIM) inMexico to Information 9 8 the information accessoftheOrganization States oftheAmerican For theanalysis of the Brazilian Law ofAccess asreference we to Information, take Law Inter-American regarding theModel required to facilitateto theusers. theaccessto information andlegalsecurity processes to offer major certainty enforcement inorder ofitsactions.Also, bodiesof thisright to guarantee itis thespecialization,autonomy andimpartiality with content ofaccessto to information. theright However, to strengthen theinstitutionaldesign ofthe itisalsonecessary exercisethe right ofaccessto information. This Law establishesstandards, guidelinesandfavorable thatprovide principles items general, and to theBrazilianLaw encouragetransparency In ofAccess withimportant contributes to Information citizens ofaccessto committed information. andtheright to transparency However, theLaw wasrecently approved achievement oforganizations 2011asanevident and intheSenate inOctober Brazil, the people’sIn XIV, fraction of access to right information article, is established in the fifth of the 1988 Constitution. suchasTransparentimportant BNDESorAccess are to Information , becausethey notavailable inEnglishorSpanish. available ismuchlower thatare thantheoneinPortuguesepageanditisalsoimpossibleto accesssections really Besides, althoughthewebsite presents ofinformation anoptionto accessthepagesinSpanishandEnglish,quantity Currently, thegreat ofdocumentsavailable inthewebsite majority are inPortugueseandthere are notavailable translations. Portuguese butalsoitswebsite. area. For that,theBankmustfaithfullytranslate notonlytherequested documentsinadifferent languagethatisnot standards nomatter thelanguagerequest ismade, insofaraslanguagesusedbelongto theonesin Bankwork theBankmustbecomeengagedthatoffered turn, In characteristic. information complieswiththesamequality differenceslegal), with the same conditions, and no matter its race, or anotherwith subjective no arbitrary sex, nationality the universal accessto information andmustoffer corresponding information to allthepeoplethat request it(naturalor Principle 6:Universal Access to informationandavailability oftranslations. The Bankmust become engaged to guarantee effective access to information. Currently, the Bank lacks of an own appeal system that has those features, limitation to an which constitutes an important different stagesofproceedings: andindependentfrom onefrom aninternal theinstitution. theBankandotherexternal requested information orifithassomehow violated thepolicy. The appealprocedure outthrough two shouldbecarried to anadministrative procedure considerthattheinstitutionhasunreasonably ofappealifthey deniedtheaccessto the Principle from 5:Acknowledgmentthe right the applicants to therightofappealandrevision. The Bank must acknowledge or finditinits website. That iswhy theBankmustestablishclear, efficient,simpleandaccessible procedures to requestandinformation application information difficult tointerpret. from activities theBankisavailable inpoorly “accessible” formats for theuser, suchasinlarge spreadsheets thatcontain theone related toand oftheinformation,effective particularly projects Inturn, to easilyfindtheinformation. great part through different andpages to finallyaccess sections tothe required information, andalsothesearch engine isnot totally Also, oftheavailable information great tosurf inthewebsite part isdifficult toaccessbecauseinmostcasesitisnecessary procedureand follow (only acertain explainedinPortuguese) to request information. of limitations, procedural, for andpassword thatyou system withausername have instance:thefact to accessthee-SIC systemnon-Brazilian citizens ordonotunderstandPortuguese. thatare Besides, notusedto there thee-SIC isanotherkind bothhave manuals,Despite they are usageinstruction they alittlecomplicated forthose anddifficult touse, particularly Law OAS is the result of intellectual efforts of experts inaccess to informationLaw andtherefore, OAS ofexperts istheresult efforts ofintellectual combinesthe bestpractices. II. PRELIMINARY ANALYSIS LAW OFBRAZILIAN OFACCESS TO INFORMATION Available inidaim.org.mx sessioninJune2010.AvailableAdopted in:http://www.oas.org/es/sla/ddi/docs/AG-RES_2607_XL-O-10_esp.pdf inplenary 9 and the good international and national practices identified by this Index. identified by this andnationalpractices andthegoodinternational Model The 8 (Model Law OAS), the Index of the Right ofAccess Law oftheRight OAS), (Model theIndex
GUIDELINES FOR DISCUSSION 17 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) , that measures the , that measures 11 to solve controversies controversies solve to 12 . 13 and Article 19 10 FUNDAR, Center of Analysis and Research, http://fundar.org.mx/index.html/ and Research, of Analysis Center FUNDAR, Article 19, http://articulo19.org the possibility of and therefore bodies is public, in the possession of State establishes that all information principleThe of maximum disclosure that the assumption involves the maximum disclosure Meanwhile procedures. comply with established should and restrictingbe exceptional it will of exceptions. is accessible subject a restricted system all information to only District(Mexico), whose writing Information guarantees the Federal of Public to and Access Transparency of the Law is sense in this example An right: to interpretation a favorable because it allows of the with the Constitution in accordance will be interpreted the right public information of access to of this law, the interpretation 6. For “Article Rights, the American Convention Declaration on Civil and Political of Human Rights, the International the Universal Covenant Mexican States, United respective that the by the and the interpretation and ratified Mexican State and other internationalon Human Rights, instruments signed “ made [...]. international bodies have
and always appeal to interpretation in accordance with the national treaties and good practices with the national treaties in accordance interpretation appeal to and always Although there is a related category in the Access Law to Information, we also recommend to include in this part, to category also recommend Information, to we the Law is a related in the Access Although there their to evaluate workers, of public the management indicators of positions profiles permanent information and updated In an illustrative way but not restrictive, it is necessaryIn but not restrictive, at least in the transparency way obligations section, an illustrative include, to information will This offices. of internal and organization information financial decision-makingabout society, with relationship the and meet clearly and simple the institutions operation and establish a direct communication line among the citizenship allow and government. citizenship for obligors that are established in established it is necessary that are obligors is why the general transparencyThat obligations for considerably broaden to Information categoryaccessibility the to by and also classify them obligors – and guarantee to by of Access the Law – i.e., the concerned for parties.process that is simplifying the and efficiently, proactively information The transparency obligations involve the need of classifying and publishing the information in the websites in a proactive in a proactive in the websites and publishing the information the need of classifying transparencyThe obligations involve quantity of the authoritiesis how makeThis the greater available mediates. that request without an information i.e. way, know to the operation and performance on their websites information clear and updated of public institutions. useful, b. Transparency obligations Transparency b. The obligors are all the offices, entities and public and private institutions that are subjected to the Transparency Law. In the TransparencyLaw. to the are subjected entities and public and institutions that private all the offices, obligors are The the private apart incorporated, the traditional branches and independent organisms, from of Brazil were Law Transparency This is important resources. public that perform organizations and/or exercise non-profit functions of public interest the type to of person – natural/ and not according nature because part proper is public by that information premise of the public or private – that administers. moral, a. Obligors 11 12 13 10 Likewise, IDAIM is an index prepared by FUNDAR, Center of Analysis and Research of Analysis Center FUNDAR, by is an index prepared Likewise, IDAIM The Brazilian Law of Access to Information includes the right of access to information as a fundamental right,fundamental a as means which Information information right the includes to to access of Access of Law Brazilian The it is necessary However, constitutionalized. mechanisms are and justice enforceability because this way progress, a great which it is necessary for scope of the right information, incorporate of access to to the interpretative strengthen to principles dissemination maximum publicizing and of maximum one the such as interpretation 1. Regulatory provisions 1. Regulatory provisions We use three big variables as analysis categories: (i) the regulatory provisions; (ii) the institutional design, and (iii) the and (iii) variables big design, (ii) the institutional as analysis categories: (i) the regulatory use three provisions; We the information to to the way right of access refers main variable first one that is the The information. to of access procedure institutions government in which different the way evaluates variableThe design about institutional Law. in the categorizes of access to the right and guaranteeing exercise promoting their responsibility of respecting, regarding related are to to access the proceedings regulate that verifies the legal provisions last variableThe about the procedures information. procedure. the revision that regulate and the standards information quality of the federal and state transparency laws in Mexico from the principles compliance transparency in Mexico mandates and constitutional state and laws from quality of the federal Index) (Base Index) and the best international practices (Progressive
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 18 and that the reserve isestablishedinalaw and thatthereserve moment of generatingthedocument. The procedure to classify the information includes a publicinterest necessarily test Under thepremises ofthesetests, into accounttheinformation itmustbetaken isclassifiedcase by caseandnotatthe of confidential information is also carried out by governmentof confidentialinformation agencies, isalsocarried foundations orpublicmixed companies’ heads theNation’spresident, vice-president, theRepublic ministers, theArmy’s majorsanddiplomaticheads. The classification of theinformation are mentioned. According 27,themore confidentialinformation isclassified Republic to bythe article oftheAccessexercise. Law theprocedures to Information theIVpart ofclassification, In reclassification anddeclassification evaluation. andaccessi.e. withoutaprior thatisestablisheddefacto reserve to thevaloration The classification isapriori from logic aninverted intheprocedures start seemsthattheserestrictions ofinformation orState. to society It security legislation levelrisk potential that establishes the Brazilian transparency The depends onthe or damage confidentiality to level. and importance years), secret information (fifteen years) andhighlysecret five information years)dependingonitsconfidentiality (twenty The classificationofconfidentialinformation thattheBrazilianlegislation mentionsisdividedin information (five restrictive public. The firstoneis whilethesecond one relatedrefers andState security to society to theprotection ofpersonaldata. So, intheAccess Law ofBrazil, to Information theinformation confidentiallyandpersonally isclassified to be for reserved must beprepared to protect classifiedinformation butallow theaccess to the rest oftheinformation. […] 16 15 14 process must be followed requirements andcover to theinformation certain beable to reserve public. Thus, for the restrictions its publicizing are of access to information, the exception. a under the doctrine Likewise, As themaximumpublicizingestablishes, alltheinformation hasandinany thatany scopeis, authority by generalrule, c. Informationreserves service. cost ofallowances orequivalents, amongothers. These elementswould to contribute inthepublic abetter accountability to theallowanceaccess criteria programs, ofthesocialprograms beneficiary registers, listsincludingthe public workers the result of audits and performance, other revisions, detail information about design, execution, assigned quantities and be benefitwhosedisseminationisconsidered ofpublicinterest whichmeansthataccessto ispreserved, be chosenbecausethisway information themaximumpublicizingprinciple can damage to publicinterest thatwould generate by revealing caseofreasonable theinformation. doubt,publicizingmust In to reliably and by meansofanexhaustinganalysissceneries, confirm the test itismandatory andof publicinterest proof: prevailed. for reasons ofpublicinterest establishedby intheterms law. ofmaximumdisclosure theinterpretation theprinciple shallbe ofthisright, In - ofmaximumdisclosure oftheConstitution, theprinciple andexceptions to article accessto information thesixth are defined: clearly In a democraticsociety. […] toand accessible, aclearandprecise subject regime in ofexceptions, whichshouldbedefined by law necessary andbealso legitimate andstrictly public authority. The ofmaximumpublicizing, Law isbasedontheprinciple sothat any information held by publicinstitutionsiscomplete, timely, - - […] that: Inter-American LawModel about ofthe Access to Information oftheLaw, onthescopeandpurpose thedefinitionspart Public In itisestablished whenever possible, by preparing publicversions ofclassifieddocuments. disclosure. To thiseffect, incaseof reasonable doubtabouttheclassificationofdiscreet information, itshouldbeopted foritspublicizing, and Regarding publicinformation referred to inthisLaw, bothinitsapplicationandinterpretation, ofmaximum theprinciple theobligors shallobserve, 5.- Article Transparency Law andAccess oftheState to ofNuevo Information León, Mexico. system; particular, shallestablishthat: 41.In theauthority contained inarticle 52. The to test demonstrate responsibility should fall back into that the requested the public authority to information oneof the exceptions is subject Test responsibility Law abouttheAccess 52 oftheModel to PublicArticle Information c) the likelihood and the extent of that harm exceed ofthatharm thepublic interest andtheextent c) thelikelihood inthedisclosure ofinformation. b) disclosure ofinformation to an interest couldcausesubstantialharm protected by thislaw, and basedonthestandards oftheInter-American inademocraticsociety andjurisprudence a) theexception necessary islegitimate andstrictly All information heldby any authority, entity, bodyandfederal, state andmunicipal organization, reserved ispublicandcanbeonlytemporarily This ofaccess to law information establishesthewidestpossibleapplicationofright thatisinthepossession,custody orcontrol ofany 16 . In case of running out the prior requirements, caseofrunningouttheprior . In publicversions ofdocuments 15 . 14 . asharm This isknown
GUIDELINES FOR DISCUSSION 19 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES)
18 . All of the above are unjustified reserves unjustified are . All of the above 17 Tax secrecy does not apply in the case of bank accounts by a public authority in which resources from the public treasury handled. from secrecy a public authority are does not apply in the case of bank accounts by in which resources Tax About the trust secrecy of worth in charge which an individual or legal entity put a trustee by (trustor) commenting that a trust is a legal form from resources receive authorities public form that is in the public scope, the compliance of an activity When this a fiduciary through institution. the is why That purpose interest. and also that the ultimate of its constitution is in principle of citizen in its structure, the public treasury involve importance of its publicizing. procedure. the revision reviewing external by The institution will be subsequently addressed 17 18 The exhaustive list of information reserve stated by the Brazilian Law of Access to Information meets the legitimate needs Information to meets the legitimate of Access reserve Law the Brazilian by list of information stated exhaustive The isn’t there in the Brazilian legislation, for the security However, reserve, as it qualifies of societyof information and the State. invokingof bank secrecy obligor;an is account holder the bank when prohibition the invokingof fiduciaryprohibition the of invokingsecrecy tax secrecy in the case of public trusts and the prohibition In this case, the information classification is subjected to the arbitrarinessto the is subjectedclassification In is indispensable and it the information authorities, public of case, this and Model Law to IDAIM certainAccording and transparent. maketo it clear, the classification procedure regulate to classification must be carried units that, the information by administrative out information, the access to regarding OAS reviewer or charge in body the by issued guidelines the to according information the have competence, its of because and classification is revision The bodies. revision collegial by initial classification must be ratified This of the information. the access decision if it denies authority’s the revises that the body in charge the user requests when indirectly produced information. to The article 29 of the Brazilian Law of Access to Information establishes that the classification of information will be revised article will be InformationThe to of information the classification establishes that of Access of the Brazilian Law 29 the necessaryauthority superior not clear that they one but it is responsible have the hierarchical by and by knowledge right of the the exercise lack of legal certainty produces ideally, because, users for invariably, This, performto this function. conflict of impartiality, specialty of avoid the standards must comply with to and independence information of access to interests. while regarding the restricted information the prior authorities and the ones that are in charge of command or leadership or leadership of command prior the in charge authorities restricted the information that are and the ones while regarding Direction or Higher of the hierarchy), Brazilian public administration the to according or higher, 101.5 functions DAS (level Group. Assessment Therefore, it is highly recommended that the Law of Access to Information to of Brazil includes internal bodies in each branch of Access that the Law it is highly recommended Therefore, classification possibilitythe the be review would – to Itsabove mentioned those to addition – in responsibilities entity. and with the criteria issue the policy to and guidelines; of the it in accordance protect and regulations and to of information Similarly, the obligors have an information committee. These internal bodies review the classification of information and, and, the classification of information internal bodies review These committee. an information the obligors have Similarly, of solid criteria the achievement revoke –, confirm, or modify the original element for manner – primordial in a collegiate responses. (of attention of information requests), the following are incorporated: receive and incorporated: receive are the following requests), of information attention InUnits (of as obligations of Liaison IDAIM, the obligor; to submitted the legal public information; collect; of information claim, disclose and update to requests process to information efficiency requests of access of in the attention greater that contribute to internal procedures propose to means main and first the are Units Liaison The it. update to and information to access of record keep to and requests the of access satisfy the right to civic exercise required are and therefore, of contact and public institutions, between citizens information. to Regarding internal institutions, international standards (IDAIM and Model Law OAS) we reviewed are in favor of creating of creating in favor are reviewed we and Model OAS) Law (IDAIM international standards internal institutions, Regarding within bodies collegial revision of institution the for also and, information to access for units attention or units specialized each unit and public organizations. , autonomous enough to resolve controversies by denying information to users. to information denying by controversies resolve enough to , autonomous The building of guarantor institutions of access to information is a first step to implement an effective transparency policy, transparency policy, to implement an effective is a first step information of access to institutions building of guarantor The as an external as well institution the obligors, within each one of required and trained institutions are because specialized 2. Institutional Design for access to information and constitute serious obstacles to ensure the right. serious ensure and constitute obstacles to information to access for
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 20 20 19 days more. accordanceother ten working withbestpractice In theBrazilianLaw days, ofAccess In thedeadlinefor to whichcanbeextended Information, working response istwenty to theexerciseaccessibility ofaccessto information oftheright would beextended. of theapplicantisnotrequired, information requests sinceitisoptimal to allow anonymously. making Therefore, the by fax,by phone, amongothers. to Furthermore, regulate imposedsothattheidentification therestriction itisnecessary to diversify theforms, inBrazilonlycontemplatesto Information electronic means;itisnecessary for example, inwriting, conditionsforall segments exercising ofthepopulationhave thenecessary to information. theright The Law ofAccess Regarding the access procedure, information it should be possible to requests make through means to various ensure that a. Legal provisions thatregulate theprocess ofaccessing to information 3. Procedure ofaccess to information body membersandthus, abetter andgreater exercise enjoyment oftheright ofaccessto information ofallpersons. widely encouraged and, of the law, at least in the framework it is guaranteed the independence and specialization of the the existence of technical tools to evaluate and grade the candidates. Therefore, the professionalism of guarantor body is to include andinclusiveare defined. summonsinwhichphasesandperiods itisimportant clearly Likewise, participatory Appointments shouldcomefromvoting ofa Congress. qualifiedmajority Candidates through shouldbeselected anopen, does notguarantee, however, neitherthespecializationnorautonomy oftheirperformance. the ministers ofState andrepresentatives oftheLegislative andJudicialdesignated by theirrespective presidents. This The Law of Access of toBrazil includes the creation Commission Information of informationof the Revision composed of required to invest inthecreation andtrainingfor guarantor theoperationoftheseinternal institutionsofsuchright. oftheaccessto informationand principles oftheLaw andtheobjectives andmonitors suchimplementation;soitis ofthefederaleach bodyorentity thatensures publicadministrationwilldesignate compliancewithstandards anauthority However, 40oftheLaw ofAccess ofBrazilonlymentionsthatthetop to leadersof Information Article aboutthisaspect, competent administrative unit. strengthened, becauseacollegial andspecialized bodywould fullyreview theclassificationsofinformation made by each of declarationlackinformation doing athorough after search. userswould oftheright be Thus, thelegalcertainty to outaformal generate procedure information thatbecauseoftheirlegalresponsibilities shouldhave they andcarry modifyor to theclassificationofinformation confirm, revoke made bytheadministrative units; to force subjects relevant discreet to always orconfidentialinformation know and recommendations oftheobligor; issuedby theguarantor body; obligor according to transparency, accessto information andpersonaldatainaccordance withtheguidelines, criteria about theaccessto information. denials before an independent, impartial and expert bodythatdefines, infinalandlegitimate instance denials before andexpert anindependent,impartial ofaccessto information.the right procedure Oncetheinternal isrunout,usersshouldbeableto challengeinformation The design orrevision andimplementationofanonconformity process theeffective isusefulfor enjoyment of supporting b. Standards thatregulate therevision process in theexercise ofpublicfunctions. Finally, oftransparency training for itshouldalsoimplemented policiesofpermanent publicofficials abouttheimportance to meettherequests. andwithhuman resources sufficiency qualified include theobligationto have aspecificcompetent unitwithbudgetary The Law ofAccess onlymentionsthatinformation to Information requests may bemadebefore publicbodies, butdoesnot days, includingextension. standardstwenty working establishthatasignificant is period to courts for ajudicialrevision.to courts order toIn strengthen the guarantor body, entities. thedecisions thatthisissueshouldbefinalandunassailable for allobligatory The userscango Law OAS. 34ofModel article See 19 , theprocedure shouldbesimple, agile andaccurate. The 20 , controversies
GUIDELINES FOR DISCUSSION 21 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) in favor of the appellant, to detail the deadlines for the precautions, and in general, of and in general, the precautions, deadlines for detail the of the appellant, to in favor 22 . Therefore, its integration, design and operation are elementaryare and operation design satisfactionfull the to of integration, its Therefore, . 21 See article 34 of Model OAS. Law The users can go for all obligatory the decisions that this issue should be final and unassailable entities. body, the guarantor strengthen In to order courtsto a judicial revision. for the deficiencies of the and as far as possible, substitution of the complaint is a legal concept that obliges the authorityThe in the best way, solve to appellants in their requests. Access to information is a civil right that should be available to everyone, and for its effective compliance a technical use a compliance effective its everyone, is a civil right to and for that should be available information to Access Information to it is necessary Inor legal expertise of Access the Brazilian Law establish explicitly to not be required. should the substitution of the complaint To satisfy a clear and impartial process for users of the right to access to information, it is necessary information, satisfy a clear and impartial users of the right access to to for that the appeal is process To and is autonomous so that the process superiors, hierarchic body and not before the guarantor directly made before revision and information to access of procedures provisions, normative of heterogeneity avoid to Furthermore, specialized. body. and a same guarantor a same legal system under should be governed The challenge process that foresee the Law of Access to Information to in Brtzil of Access the Law first, the complaint originates is two-stage, i.e. that foresee challenge process The In part superior body. it is mentioned authorities the guarantor Brazilian Law IV of the the hierarchically and then to before the Office of the then before superior authority, a hierarchically before Branch, it is first challenged that in the Executive When the nonconformity is about the Revision Information. of the Commission General and then before Comptroller and judicial Branches legislative The is carried out. the denial of authority a similar procedure information, declassify to procedures. revision implement their own In it is also important the importance this heading, remember to in of transparency of expanding the obligations and, to guarantees more provide to request information processing of units competent the of responsibilities the particular, users. In addition, the revision process (nonconformity) is relevant, because it favors the certainty because it favors (nonconformity) is relevant, In process the revision addition, of users and incorporates is classified as when the information the challenge can proceed that addresses only Law The disagree. to reasons more illegible, so it is necessary such as: delivery untimely, confidential or personal, reasons, to incorporateother of incomplete, security of legal to be provided order should in applicant the i.e., others; among information, nonexistent and inaccessible nonconformity. any appeal decisions by be able to As we saw in the section on institutional design, the Revision Commission of Information established in the Law of Brazil, in the section the Revision of Information saw Brazil, of institutional design, on Commission in the Law established we As process. its integration given procedure, does not necessarily and specialized an independent guarantee this right. 21 22 The guarantor body of information, in the countries that decided to create one, is the main institution that protects the the protects that main institution is the one, in the countries create to that decided information, body of guarantor The information rightto of access In conclusion, the Law of Access to Information of Brazil condenses useful technical tools and valuable conceptual Information tools to of Brazil condenses useful technical In of Access conclusion, the Law necessary are there be adjustments to in this chapter, saw we As information. of access to right exercise for premises, security A particular elements and legal certaintymade. and incorporate greater users concern regulate appears to for We should also take of the institutional structure within each branch care classification. of information with procedures of their the users find the guarantee right. because that is where In the case of the external institution, and public entity, its as the expanding of and its operation as well its design the Information from Commission strengthen to it is required should We Information. to Access of subjectinstitutions other and branches other include the Law to scope to application and impartiality professionalism of the a greater as far as possible, safeguard, to method in order its integration also reform right information. to of access Finally, we consider it appropriate to include in Brazilian legislation elements that allow the accountability. In this sense, the accountability. that allow elements include in Brazilian legislation to consider it appropriate we Finally, an citizenship the to give to body guarantor the of obligation the as such mechanisms, incorporatesimple to viable is it the public meetings of publicize appeals and to of the revision annual work report, publication of the resolutions allow to among others. bodies, the guarantor the challenge process.
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 22 23 are precursors ofarecentOpen dataandopengovernment initiativecountries, are includingBrazil, oftheLatinAmerican part which of opendata. institution; it is also encouraged an accessible, clear, updated and easy for all users, diffusion mechanism, including the use obligations are regulated appearorderly indifferent sothatthey areas, dependingon topic andthecorresponding Through proactive transparency, information obligationsthatgobeyond theminimumlegalare established: those facilitates itsusefor any userofsocialnetworks. obligations sothattheinformation publicationisproactive. This raisesthestandards and ofdisclosedinformation quality for the of Information oftheBank Access opportunity to Policy refers A fieldofimportant to thearea oftransparency ornotofinformation for shouldthenbeincludedandregulated.rights delivery ofpublicinterest. thepolicy, testsatisfaction andpublicinterest In theharm suchasexercises ofdeliberationvaluesand Banks. and Export The classification,declassificationand reclassificationof should information have asparameter thefull founded, motivated andaccording andstandards to goodpractices followed by otherNationalBanksofDevelopment A Policy ofAccess for to Information theBNDESwould require procedures for classifyinginformation, withguidelinesduly culture to citizens who accessto thissystem. and exercises publicresources. This andorganizational would ofBNDES,itssubsidiaries decidedlytheworks helpto bring asitisapublicinstitution accountability, ofaninstitutionthatisobligated party functioning peopleevaluate theactual itispossibleto involveThrough institutionalchannels ofparticipation citizenship inmatters ofpublicinterest. With social people whowillbeinvolved inprojects theinstitutionfund. oftransparency.and theimportance Externally, to enhancethetrustanddialoguewithBank’s clientsandwiththe institutions, internalize sothatthey theparadigm sensitizing peoplewhocollaborate withtheBNDESanditssubsidiary The Policy ofAccess requires to Information processes. andexternal internal Internally, inthesenseoftrainingand projects financed by theBankoutsideBrazil. asthevarious framework, strengthen policiesandto buildmethodsofhorizontal dialogueinprocesses that gobeyond theBrazilianregulatory to of officials inthe branchand Italso tomonitordevelopment representsthe performance projects. anopportunity to includemechanismsofsocialaccountability,to institutionalchannelsofcivicparticipation, incorporate to evaluate A Policy ofAccessInformation toto expandtheexercise specific for BNDES right inorderrepresents ofthe anopportunity full exercise. access to information amongthecitizenship. you So canbuildacivicculture ofaccessto information ontheright andits provisions, favorable behaviors andpractices to transparency, andways andto of exercising promote theimportance the specific needssuchas, inthiscase would betheBNDES. to implementanumberofmechanisms, itisnecessary Furthermore, institutional andlegaldesign isafirststep. However, itisalso required to implementthecontent of thelaw according to ofaccessto specificinformation A policy beyond thelaw.for abranchencompassesseveral mechanismsandactions The strengthening participatory democracy. strengthening participatory and approximation measures astechnology platforms are implemented. ameansoftechnology for I.e., itisaboutmaking Through adigital governmental policy, rulersandcitizens thetraditionalmodelofcommunicationbetween istranscended the userrequest. to deliveran effort information inanaccessibleand reusable way by anyone, favoring to themaximumand at any time Access to ofBrazilstates to make it,thatthebranchesandentitiesprovide Information isabout,infact, theinformation. It BRAZILIAN DEVELOPMENTBRAZILIAN BANK(BNDES)IF THERE ISALREADY A TRANSPARENCY LAW INBRAZIL? III. WHY A TRANSPARENCY ANDACCESS POLICY TO INFORMATION ISNECESSARY FOR THE NATIONAL To review information about theAlliancefor OpenGovernment, see:http://aga.org.mx/SitePages/Principal.aspx 23 . Open data emphasize the importance of the information quality becauseitisnotenough, astheLaw oftheinformation of quality . Opendataemphasize theimportance
GUIDELINES FOR DISCUSSION 23 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) Sovereignty of states? Sovereignty IV. PRINCIPAL LIMITS FOR THE IMPLEMENTATION OF A POLICY OF ACCESS TO PUBLIC INFORMATION IN BNDES INFORMATION PUBLIC TO OF A POLICY OF ACCESS THE IMPLEMENTATION FOR LIMITS PRINCIPAL IV. The issue of exceptions has a quite controversial role. In most of the analyzed countries, the laws of access to information information of access to In the laws countries, most of the analyzed role. controversial has a quite issue of exceptions The the confidentiality to of personal data and limited are establish the principle of maximum transparency and the grounds Peru and Uruguay Guatemala, Mexico, such as national security. other interests affect that may the caution of information An important matter to stress is the promotion of active transparency. The State’s obligation to produce information and information produce obligation to State’s The of active transparency. An important is the promotion stress to matter degrees. but in very in all legal systems, of transparency different is considered a culture promote All analyzed countries have regulated the procedures for accessing to information as well as its judicial guarantees. To To as its judicial guarantees. as well information accessing to for the procedures regulated countries have All analyzed responses for counteracting negative destined resources types of judicial different these countries have complement this, public information. access to for or omissions of the administration against the requests Also, in most of the studied legislation, it is established that all persons are entitled to the right to access to information, information, the right access to entitled to to are it is established that all persons of the studied legislation, in most Also, restrict points out, to the right persons who are About this point, as the Commission to of nationality. with disregard restriction implies an unjustified to this right. immigrants or legalized citizens According to this study, somehow all studied laws collect expressly or indirectly the principle of maximum disclosure. The The or indirectly the principle collect all studied laws of maximum disclosure. expressly somehow this study, to According the principle that establish that the right it is referred in most of the laws the principlesame applies to of good faith. Also, In the principle some disclosure. of maximum through the exception, is the rule and the secrecy, information to access to administrative established the positive it is even and Colombia, Guatemala Uruguay, of Mexico, such as the case laws, within the statutorythe applicant is entitled that the request it is understood to period if no response is given, i.e., silence, the information. to access to First, we will take as a reference the study prepared by the Special Rapporteur for Freedom of Expression of the Inter- of Expression the Special Rapporteur by Freedom the study prepared for will take we as a reference First, American on Human Rights Commission 2011, which includes countries in Barbuda, such as Antigua and Argentina, Peru, Nicaragua,Jamaica, Mexico, Guatemala, Panama, States, United Salvador, , El Ecuador Colombia, Chile, Canada, and Uruguay. Tobago and Trinidad Dominican Republic, The respect for human rights exceeds the strictly legal and national scope. Even so, the rules related to transparency to and the rules related so, the strictly human rights Even exceeds legal and national scope. respect for The information the right access to protect to to standards in countries considered of Latin America information have access to In general international frameworks. to or less adjust themselves principles that more and structures concepts, through a policy principles could be applied within these and structures this sense, these concepts, that generally adjust itself to (WB)Bank World Corporation(IFC), the as countries, Internationalthe or DevelopmentNational other (as Banks Finance KfW) the regulatory to and the Export-Import way, without implying a violation, in any Ex-Im) do, currently Bank (U.S. of these countries. sovereignty Does the principled basis of the Transparency Law of Brazil differ greatly from the other laws in the region? region? In this sense, in the the other laws from greatly of Brazil differ Law Transparency Does the principled basis of the a transparency of the countries?would policy sovereignty the normative in BNDES violate 1. In summary, a Policy of Access to Information would substantially impact Information substantially to would on the functioningIn of Access and performance a Policy summary, of BNDES subsidiaryits and activities Bank the of where people the and institution the both to bringsit because benefits institutions, labor relationships, that facilitates culture certainly a newThis organizational involves present. or its two subsidiaries are to all users of this important image fresh and transparent projects institution. a efficiently and does the job more A common obstacle for access to public information is the constant declarations of lack of information, so that it should that it should so information, of lack of declarations is the constant information public access to obstacle for A common also but deliver, only to them not be incorporatedthat limit this practice rules units and require all administrative in it is of prime importance public Thus, systematize to functions. of its the exercise derived from information generate to Access of Law the in exist yet not do tools These make documentariesto and files digital count. the activitieshave to and of information digitization The the opportunity then have would and Bank Policy include them. Information to to of Brazil, policy digital goes hand in hand with data in information. use of open and the extensive
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 24 to apply transparency duetoto theculture applytransparency ofprevailing secrecy” traditionallymaintainsits sector “inertia” approval after ofaLaw ofAccess to Public andgenerates resistances Information to implementthisregulationinformation (policies): andthediscussionaboutinstitutionaldesign necessary public “The isagainemphasized thedifferenceIt legalstandards thediscussionofinternational between onaccess to public in thisline. of accessto information, have andallcountries administrative aswell rulesthatconsiderthisright, aslegaldevelopment andaccessto to information. transparency right Almostalltheanalyzed countries, except Argentina have andBolivia, laws in thesecountries. Allthesehave more orlessstate istheprotection structures whoseformal objective ofthe principal Argentina, Chile, Bolivia, Ecuador, Mexico, Peru andUruguay, allow to appreciate oftransparency theinstitutionalframework most National Development Banks and private banks Banksandprivate most NationalDevelopment which donothave oftheBankPolicy operation,couldnotbefinanced theprinciples initsinternal by it,ashappenswith by inthe countries, shouldbecollected Braziliancompaniesthatwork understandingthatthose based onclearprinciples the higheststandards oftheregion, given intheregion. thepresence mostcountries ofBNDESinpractically This policy This Transparency Policy shouldnotonlybesetthrough domesticlaw thatintegrates thatgovern Brazil, butinapolicy different all very amongthem:they recognize standards theinternational oftransparency. with financing and in accordance thatwhere these with principles countries participate recognize that, as noted, are not its integration standards purpose, requires of transparency not only within Brazil, but also in leadership in the performance and Planning Council (COSIPLAN), based on itsPolicy ofGrowth Acceleration for that considersthepotential ofcountries assumed intheregion force asadriving Infrastructure ofintegration American oftheSouth projectsundertheframework isstillintraining. However,2011, andtheculture inthiscountry oftransparency therole whichsometimeagoBrazilhas Brazil hasnotbeenincludedinany ofthementionedstudies, becausetheBrazilianLaw cameinto force inNovember in thesecountries. andtheexistingmechanisms shouldconsiderthegeneralprinciples applicableto thesecountries oftransparency policy handlesthesamestructures, are becausethey different that everyone clear thatyou cannotexpect realities. That’s why a some way or another,In have these countries for an institutional framework of access to the right information, but it is generally ordered to protect it(constitutional protection, complianceprotection orprotection by astandard). there right (inthecaseofArgentina,to protect isnospecificlegalaction Bolivia,Chile),there this are thatare actions of ChileandMexico, whoseindependentbodieshave thepower to issuebindingopinions. Althoughinsomecountries relation toIn themodelofadministrative itshouldbenoted review theprogress ofcompliancewiththisright, ofthelaws requests ofaccessto information andindependent bodiesofcompliancelaw inadministrative procedures. that facilitates theapplicationoftheseregulations ismore heterogeneous. systems to andChilehave OnlyMexico tracking prescribed inthelaws ofaccessto information;for therealization thecreation ofpublicpolicy ofaninstitutionalframework 26 25 24 Another studyprepared by theCenter ofFiles andAccess to Public Information highest standards ofrespect for humanrights. have afundamentalrole intheinterpretation ofexceptions to publicinformation, andtheright inaccordance withthe anyeven establish that the information case, cannot be In reserved. about violations of human rights judges and courts from theprojectcommunicate with their Brazilian counterparts. The proposal comes to the Bank for a technical analysis For example, these, indetermining there is aninstanceofgovernment to government where thatreceive ministries benefit decisionsoftheExecutive.background. ofBNDESshouldbeadjusted thepolicy any publicinstitution,theintervention Like political terms, the direct roleIn remain of the Bank participate, in the determining projects in which in often the ofBNDESto theBrazilian external2. Dependency policy? tocontribute theimprovement ofgovernance intheregion. Example: The Principles ofEcuador. Idem, p.41 access to publicinformation countries. inseven Available LatinAmerican Onlinehttp://fundar.org.mx/mexico/pdf/venciendolacultura.pdf Center ofFiles andAccess to Public Overcoming theculture Information. ofsecrecy. Obstaclesintheimplementationofpoliciesandstandards of 26 . Onlythen,thedevelopment projects thattheBankfinance, could 25 . In contrastto theconcepts, andinstitutionsas . In principles 24 in seven Latin American countries: countries: inseven LatinAmerican
GUIDELINES FOR DISCUSSION 25 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) , a trend that is supported, a trend by 30 Isea Ricardo Silva. Chair “La Caixa” of social responsibility of of social responsibility “La Caixa” Silva. Chair Isea Ricardo . Under this system, once laid out the formal interest of the interest laid out the formal once . Under this system, 28 . 27 . Within this duty, it could be considered the national and international financial institutions. considered it could be this duty, Within . company and corporate government. Available in http://www.iese.edu/research/pdfs/ESTUDIO-161.pdf Available and corporate government. company Quevedo Luis Bernardo Quintero. about bank confidentiality and its limits). (Learning y sus límites bancaria la reserva Aprendamos sobre According to the information of the meeting with the Director of International Affairs of the BNDES in March 2013, where the following institutions following the of International Director of the meeting with the 2013, where of the BNDES in the information Affairs March to According FOCUS, FUNDAR. FASE, of Social Movements, Coordination Regional ILSA, DAR, participated CAIO, in: COICA, rights). and human companies (Confront humanos y los derechos las empresas Confróntese, 29 As States should respect, protect and enforce human rights – whether or not there are appropriate legal frameworks for frameworks legal for appropriate are human rights or not there – whether and enforce protect should respect, States As contextoperational the and interests their what of regardless matter, that on responsibilities have also companies -, this are Exactly in the framework of this technical evaluation, the Bank has more space to act because, as noted, it is an objective act as noted, Exactly space to because, evaluation, in the framework the Bank has more of this technical to that the companies it should be evaluated This is where of determinedand specific assessment of compliance criteria. human and environmental be supported of transparencyand respect for the Bank comply with the highest standards by the strictly transcends legal sphere above, as noted human rights, since respect for not only the national regulation, rights, in the national scope. Thus, in the political aspect, the Bank’s performance is subject to the decisions and interests of powerful groups (state, performance of powerful (state, the political aspect, in is subject the Bank’s the decisions and interests groups Thus, to aspect, includes that in the technical as has been observed, the BNDES has a procedure corporate However, and trade). be approved. to and companies should accomplish in order projects that the presented series and requirements of steps As mentioned before, there is a procedure for the approval of projects within the Bank from the technical point of view. point of view. the technical Bank from of projects within the approval the for is a procedure there mentioned before, As Second, support evaluated. require and the actions BNDES are company the basic specifications of the that will from First, contact to Bank the of is client the area the indicate that letter” “positioning called the approved, is operation the once Department the Environment of the Bank normally Usually, the project. managing carried for out and will be responsible the project for responsible the Bank area made by the analysis Third, checks the socio-environmentalrisks project. of the of the is notified and informed result, the company With the favorable its final decision. of BNDES for the Board is sent to the parties. of documentation necessary the subsequent signature the contract, preparing for for requesting country and the formal approval of the Brazilian authorities – to which the Bank is subordinated - the technical - the technical country of the Brazilian authorities which the Bank is subordinated requesting – to approval the formal and parts start analyzed. be to Article 74 of the Constitution of Colombia of 1991, in which it is established that “everyone has the right to access to public has the right access to to “everyone Article that of 1991, in which it is established of Colombia 74 of the Constitution to the bank secrecy is compared Thus, secrecy is inviolable”. Professional law. in cases established by except documents, secrecy. the idea of professional 30 27 28 Idem. 29 that considers financial and productive aspects, among others, and, in parallel, the dialogue between governments is is between dialogue the governments parallel, in and, among others, aspects, and productive considers financial that performed This mechanism of protection of the information has been adopted by different legislations. For example, in Colombia Colombia in For example, legislations. different by has been adopted of the information mechanism of protection This is a duty that is in the databases of financial institutions of client information and that the protection it is understood in the possession of the financial sector of the data that are a protection to corresponds Bank secrecy is the determination adopted by the banks within its general regulation, which establish that all information which establish that all information the banks within its general regulation, Bank secrecy by is the determination adopted those who are these should be kept and can be disclosed only to by secret deposits received deposits and to relating dutythe implies it that so existing an against silence of theythose to, authorize to and money, managed the of holders term definition of the is no specific on a doctrinal been practically this has by Although there developed information. level, laws. of different content the normative 3. Bank secrecy? In it is necessary transparency this sense, and that BNDES implement policies of socio-environmental safeguards, servingregion, but also of the not only Brazilians the integrator and movements, for organizations participation effective Brazil in the region. assumed by role In this scene, the BNDES does not determine independently whether or not to approve a project: the decision is made by the the by is made the decision project: a approve In to or not whether determine not independently does the BNDES scene, this a prior was not understanding so if there Finance and Guarantees, of Committee the and specifically, Brazilian government, the financing will not be carriedbetween the governments out
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 26 by theCentral Bank Law, oftheinformationsince 1935by gathered 14establishedtheconfidentiality Law 12,156,Banking whichinitsArticle oftheusers. Specifically,to privacy 32ofthislaw, itis regulated inArticle thathasbeenimplemented althoughitisaprinciple right ofthe aspect Argentina,inLaw wasincorporated 18,061,fulfillingthe banksecrecy In role ofcaring for theproprietary understanding it as the duty of reserve of all transactions madeby clients ofalltransactions ofreserve understanding itastheduty 33, where is comprehensively the concept of bank secrecy Lawexpressly laid out, 18.061 Article in the above-named 34 33 32 31 the financialsystem according to trade relations ofprofessional nature” the protection life ofdataabouttheirprivate orotherpersonalinformation oflegalentitiesornaturalpersonswhotrustin statingthat thisarticle supports theConstitutionalLikewise, Court “respect ofindividualsrequires for ofprivacy theright of all financial institutions against all made banking transactions suchasloans, transactions guarantees and allthatisunderstood asthe of allfinancialinstitutionsagainstmadebanking The information isalsomanagedfor theregistration bureaus incredit by reporting theCentral Bank. This isanobligation oftheConvention Party itrecognizesthat beingBrazilacountry application. existinglimitsagainstitsinternal system mechanismsappropriate to overcome asaresult obstaclesthatmay law, arise oftheapplicationbanksecrecy so investigationscase ofnationalcriminal standardize ofcrimes inaccordance withthisConvention, legal existinitsinternal ground 40oftheConvention ofbanksecrecy. provides Article Likewise, shallensure thateachState Party that,inthe to refuse incaseofcommissionacrime, withoutthepossibility itonthe seize allbankdocumentsthatare necessary isestablishedto andcompetent submitor authorities to ofStates empower Party 18,theResponsibility courts article In by theUnitedregulation NationsConvention issupported of2004. against Corruption public authorities in relationpublic authorities investigationsto criminal (including AML); for when the client allows it” tax authorities; diligence regarding withdebtors inarrears; for theclient,inconnection bureaus; central banksofcredit for reporting Law.Laundering Law ofinformation 105establishes that the sharing is permitted Supplementary “for procedures ofdue provided by theinstitutions,this covers oftheservices and by Law thefinancialtransactions 9.613 of1998,Anti-Money Law, Law isregulated 105of2001,BankSecrecy Also inBrazilbanksecrecy by Complementary whichlay down that secrecy, andifnolackisset,itwould beafineontheoffender. faultintheworkplace, violationofthisisaserious 141 of the same Law may states exist due tothat, in addition to liability the violation of bank the criminal Article Likewise, 140states that: whichArticle System andInsurance, andOrganic Law ofBanking oftheSuperintendence Peru,In isexpressly thebanksecrecy regulated by Law Law 26702of1996,General oftheFinancial System andInsurance is made,modification in the scope of bank secrecy as its range of application and effect is limited, as will be discussed later. perform”.operations they Nowadays, this law remains in effect, although with the reform given inLaw 24.144 of 1992, a 39. regulated states –inArticle that –thebanksecrecy This article entitiesincludedinthisLaw may“the notreveal passive Later, in1977,by Law 21526,withtheFinancial Law, Institutions regime anew isformed being inthefieldofbanking, Banco Central doBrasil. Panorama ofBrazilian andexchange legislationonbanksecrecy ofinformation,p. 2. 39oftheFinancial Law.Article Institution BankSecrecy, p. 5. 39oftheFinancial Law.Article Institution BankSecrecy, p. 3. Sentence C-200-2012. Constitutional Court. 3. 2. 1. They are alsoforced thebanksecrecy: to observe […] companiesoffinancialsystem, as well astheirdirectors andemployees, are to supplyanyforbidden information The directors and workers of audit firms and risk ratingagencies. and ofauditfirms The directors andworkers BankofPeru. ofCentralThe Directors Reserve andworkers checkswithoutfundsadvanced.account holdersclosedby writing The except workers, andtheSuperintendence Superintendent inthecaseofinformation regarding thechecking 142and143. assumptions recorded inArticles about borrowing operationswiththeirclients, oftheseoritisaboutthe permission unlesswithwritten 32 . Since1969,thelegalnature isconsolidated inthislegislation, ofbanksecrecy by incorporating 31 . 33 . 34 . This
GUIDELINES FOR DISCUSSION 27 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) . 35 “whenever there is public policy or public interests in clarifyingpolicyin is public certain “wheneverthere interests or public to situations, 36 Article 21 and 22, only paragraph da Lei de Acesso à Informação. Article de Acesso da Lei 21 and 22, only paragraph 154. 1996, p. abril/junho, do Consumidor, publicada na Revista de Direito Bancário”, ao Sigilo “Limitações Legais Fernando. Bellinetti, Luiz 36 35 The Access Law also establishes that public organizations may classify information according to different degrees of degrees different to according information classify may organizations public that establishes also Law Access The confidentiality industrial direct economic activity and protects secrecy or individual or private from derived by the State entitylink with the government that has any The Access Law allows that vital information for the state and society state the security object for that they of classification in case are vital information that allows Law Access The been or that have the country, of or international of negotiations relationships the development harmmay or compromise in articleassumptions listed among other or international organizations, 23 other States character by placed with discreet of such Law. a. Scope and exceptions to bank secrecy in Brazil and BNDES and bank secrecy to in Brazil a. Scope and exceptions The Central Bank has also access to this kind of information for monitoring cases of branches of foreign banks in Brazil banks in monitoring of foreign cases of branches this kind also access to Bank has Central for The of information a this, For money of laundering. the investigation for of information exchange as for well as banks abroad, or Brazilian is required. researches that authorizes understanding” of “memorandum responsibility of debtors. Thus, all financial institutions with prior approval of the debtor have access to this information for to this information access have of the debtor with priorfinancial institutions all approval Thus, debtors. of responsibility based on Decision these data, of Superior160-DF Habeas Data 359 and access to Court of Justice. As the public interest is greater than private interests, and as publicizing is the rule but not the exception, the bank secrecy the but not the exception, publicizing is the rule and as than private interests, is greater interest the public As the use of over of society control to the exercise as an obstacle and industrial) not be invoked may commercial fiscal, (or Belinetti to According funds. public Article 37 of the Federal Constitution establishes, as one of the principles of Administration, the publicizing of information. the publicizing of information. as one of the principles of Administration, establishes, Constitution Article 37 of the Federal Information, No. to Law Law of the Access and entry with the promulgation principleThis became strengthened force into 7.724, May 16, 2002. No. Decree by 18, 2011, regulated 12.527, of November The exception BNDES to the public law regime will only prevail over what is essential to the maintenance of competition, the maintenance to what is essential over will only prevail regime the public law BNDES to exception The (Article public order economic Brazilian the of pillars the of one Infederal FQ). a of being 173 BNDES, the cases, other the actions is subject the rules and principles of the Brazilian public organizations. to regulate that company, The BNDES is a federal public company, i.e., an entity of the indirect public administration. Public companies are federated federated companies are an entity i.e., of the indirect public administration. Public public company, BNDES is a federal The act the Union to as a by in economic activities (general manager). Itsentities created regime, and administrative legal of public law. the regulations by replaced are cases the rules of private law but in many private law, is ruled by general rule, unlike private the BNDES should carry of jobs, institutions that financial example, the provision for out the public tender For workto rules in Brazil. its staff according hire freely b. Limitations on the use of bank secrecy BNDES operations to b. Bank secrecy and the prerogative of public entities in determining the degree of confidentiality under the of information of public entities in determining degree the Bank secrecy and the prerogative situations in which the in specific involved the other interests to according be analyzed should in all cases Law Access the internationalization of financing of the to make to relating documents public urged are the government and BNDES Brazilian companies. The scope of the Access Law application extends to federal public companies, and therefore, to BNDES, since it is a public BNDES, since it to and therefore, public companies, application extends federal Law to scope of the Access The establishes in its Article Law the Access 5, part that regulate decree The with public resources. institution that operates the by and other entities controlled economy society of mixed public companies, by of information “disclosure 1, that of article subject the provisions be subject will to relevant 173 of the Constitution, Union that act to regime, competition if and, the corporate governance its competitiveness, ensure to in order of the National Securitiesregulations Committee and carries out operations regime in a competitive BNDES operates The of minority the interests shareholders”. appropriate, capital the operation of the Brazilian affect the Bank is able to held by not all information in the capital market. However, of the management for market,On the other hand, of this article that the provisions so interpreted. shall be restrictively infrared not be unduly restricted by which may “publicizing”, the general principle to BNDES is joined of public funds, standards.
GUIDELINES FOR DISCUSSION
Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 28 40 39 38 37 Treasury (15.4%), FAT resources (4%), and other forms of public financing denotes the almostexclusive presence ofresources from nationalpublicsources theNational between (97%),distributed Second, the BNDES manages resources that are, from for public sources. the most part, The capital structure of the Bank disadvantage. methodologies and analysis, and the results, information as a rule; do not bring that can leave the company at a competitive protected secrecy, by industrial butthesesituationsare nottherule. The environmental assessmentimpliespublic impact a company hasdeveloped atechnique to mitigate theenvironmental through impact technological advancesthatare orpassive ofactive operationsoftheLC may notbeframedaspart project cycle 105/2001. There may becaseswhere studiesandotherdocumentsproduced sustainability, the impact during of socio-environmental socio-environmental First, orfiscalbanksecrecy. ofindustrial becausemostofthedocumentstoReports beobtainedare notunderthesupport There are three mainreasons for excluding inorder banksecrecy to accessto information ofBNDES. ofapplicants”.from theknowledge forjustify therevelation orthere it ofthisfact isconsentoftheholder[...]may subtracting to notinvoke privacy theright operations emphasizes theexistence ofasystem ofplanneddarkness” orthestate”.of society Even so, the TRF-2 considers that lackofpublicizinginrelation andBNDES “the withthecriteria 2008 andMarch 2011.For the TRF-2, are discreet nonexistent“they dataorthatcompromise insuchreports thesecurity the BNDESspreads the “analysis reports” ofoperationswithmore than100,000real values, approved January between accepted the request for a Folharecent decision, the FederalIn Region of (TRF-2) the Second of Sao Paulo Court so that administrative authority. ofinformation maybecause theconfidentiality rights, notdismisstheprotection offundamental eitherthrough judicialor to informationfundamental right isgreater companies, and(iii) interests thantheprivate oftheBankorbeneficiary (ii)becausethe reasons: (i)becausemany documents are tax,commercial notprotected secrecy; orindustrial by thebank, summary, accordingIn to the Brazilianlegalsystem, theBNDESshouldincrease for itslevel oftransparency three main The accounts for latter modality 77.4% of the Bank’s financing of resourcesBNDES and attraction investors amongprivate represents a low percentage ofthe capital structure oftheBank. operations alsofitsthenature compositionofthe inthecorporate ofpublicfunds, becausethere partner isnoprivate the Access Law isexpressed asfollows: Third, may notbeinvoked banksecrecy asanobstacleto 21of theinvestigation ofviolationsfundamentalrights. Article Directors, theExecutive Board, theAudit Committee andtheFiscal Council. government hasalmostabsolute power over organizations, theappointmentofitsmaincorporate includingtheBoard of andForeign Industry ofDevelopment, the Ministry Trade, andtherefore, control ofdirect administration. isunderstrict The legal system seeking to protect the rights of civil society also has an aspect regarding alsohasanaspect of governing to principles ofcivilsociety ensuring protect therights legal system seeking thisway, levelIn indifferent establishedintheregulatory isapractice itmay beestablishedthat,althoughthebanksecrecy bndes-liberar-documentos.shtml>. Acesso em10.10.2013. Folha deSãoPaulo. JustiçamandaBNDESliberardocumentos. Disponível em: GUIDELINES FOR DISCUSSION 29 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) and establishing the obligation to disclose information information disclose and establishing the obligation to 42 . In this aspect, the interest of the organization in generating a harmonious process of information about the of information in generating a harmonious. In process of the organization this aspect, the interest 41 About the quality of the information disclosed the qualityAbout of the information Statute BNDS, articleStatute 17. BNDES, articleStatute 220-C. Although there are optimal mechanisms for the transmission of information about the operation of the organization, such about the operation of the organization, the transmission of information optimal mechanisms for are Although there published in 2005 and concerning newsletters the performanceas investment and November, of the months of August activitiesimportant be to would BNDES, the of news relating to reportaccess annual the to free or 2010 in published The BNDES is based on a scheme of corporate governance that lay out as a base principle practices that lay of governance of corporate BNDES is based on a scheme governance the The as it is established this reason, external with relationship applying as the pillar against the parties. For transparency, broad publicizing of news with regular a necessary which is materialized mechanism one communication channel with society, Furthermore, performed to publicizing relating policyactivities of financing, operations such as and practice of credit. which actively of the organization, the newsroom published newsabout activities by is made through of the institution the actdevelops of the organization. Likewise, the obligation to establish procedures is laid out in order to ensure the privacy of some specific issues. Thus, it is Thus, the privacy ensure to of some specific issues. is laid out in order establish procedures Likewise, the obligation to the the importanceto ensure mechanisms statutes, of effective clear that within the analyzed the development against principle express the public respecting societyand civil institutions the that steadily by established, is information to access as an organization. the BNDES in its foundations concerning procedures regarding the managed information and the application of internal regulations of companies that and the application of internal regulations information the managed regarding concerning procedures partare of the Bank. 42 41 In article 17 of the statute, it is established that one of the functions of the president is “to send to the competent authorities, authorities, the competent “to send to In article that one of the functions is it is established of the president 17 of the statute, of the BNDES worksin statutory and its about budgetary data deadline, about the progress information and other matter operations” Initially, it is importantInitially, establish the importance to support which of that is inside the statutes focus the organizational a Directorate that BNDES will be managed by provide statutes The is materialized. this content establish how later BNDES, to It is the Republic by President. who shall be appointed directors, and seven vice president that consists of the president, seekingright about the information, to given is a focus Statute, importantBank’s of the content that, in the establish to of the institution. and achievements knowledge facilitate establish mechanisms to in the institutional field of progress to 4. the by approved which were stipulated, of October 4418 are which its statutes 11, 2002, in No. BNDES is based on Decree Republic President. In conclusion, bank secrecy is not an absolute duty to be applied by bank institutions, as there are higher-level principles higher-level are In as there bank secrecy conclusion, bank institutions, duty be applied by an absolute is not to Likewise, or legal security by examples. some principles interest such as public are saw, we As its application. that can match secrecy bank application how its established within be seek should may it legislations, different in mechanism this applying so that communities, rights of fundamental and specially protected in general the protection human rights and of citizens of bank secrecy applications to countries in that allow several different in the we saw as focus is established, a specific of principlesbasis on the implementation its establish and rights importance of vital harmonious the of development for the existing legal system. systems, since its application will strictly imply, in specific cases such as those already mentioned, the direct limitation of of direct limitation the mentioned, already as those cases such specific in will strictly since its application systems, imply, this For international the community. the same legal securityor and even interest as the public of States, basic principles, establishes a supported it of right information, against the development a limitation to it constitutes although reason, established principles. previously and respecting limitation On the other hand, in article 22-C it is established as one of the functions of the Audit Committee “to establish and disclose in articleOn the other hand, 22-C it is established as one of the functions Committee of the Audit statutoryand legal of breach the about information regulatory processing and to applicable receiving for procedures for BNDES, including its internal regulatory the System act,companies that constitute procedures establishing specific of the lender and the confidentialityprotection of information” performed activities is established. GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 30 other content thatcitizens considerinteresting ornecessary. 43 by itsofficialsbutalso bycompaniesor withtheBank. governments that work acts,notonly andcriminal intheadministrationandpotential to corruption exposemalpractices institution, contributing Access to information promotes ofthe agreater activities intheinternal to andcontributes accountability transparency 4. Prevention andfight against corruption andsecrecy achieve theprovisions, improves itsduty. includes thehigheststandards andaccessto information, oftransparency to willpromote that theinstitution,seeking oftheinstitution. activities ofitsoperations andtheinternal quality The adoptionofaPolicy ofAccess that to Information independently) andto evaluate itsperformance. toThis improve databasepermits themanagement,effectiveness and toThrough monitor and it(bothinternally accessto theoperationofBank, information ispossibleto know 3. Evaluation ofoperating andimprovement ofthegovernance oftheinstitution about theoperationsofinstitution,aswell astherole pursuitthedevelopment inthenationalandregional scope. The accurate disseminationofinformation increase by theBankpermits awareness andpublicsensitivity ofcivilsociety regional development 2. To make aware andtherole insociety oftheinstitutionin theprocess anddisseminate activities ofnational and that isowned. isdirectly conditioned tothe information of society. in citizenshipfrom participation theinformed Efficiency participation application ofpoliciesandmay reinforce provisions theresults ofdevelopment, interms astheBankmay obtainimportant theBankandcivilsociety.between This, may leadto inturn, improvement indesign andrealization ofprojectsandthe The opening and access to information allow promoting and maintaining public dialogue, building trust in the relationship indigenous movements, etc.) obtainingeffective andinformed participation 1. To promote concerned andstrengthen dialogueandinteraction(civilsociety, withparties private sector, information thatstrengthen theregime andaccessto information oftransparency from theinstitution.Amongthem: this way,In there are that can benefit theBNDES through several aspects the implementation of a of Access to Policy bureaucratic resources costsandhumanmaterial agreater thatbring ofpublicbodies. transparency by publicinstitutions:theselatter may alsobelargely benefited, arguments thathighlightthehighest contradicting However, oftheadoptioneffective regimesandaccess toinformation isnottheonlybeneficiary oftransparency society including Financial Private Institutions, BanksasBNDES. BanksandNationalDevelopment in decision-making. This isnotlimited to thescopeof(nationalorlocal)governments, to otherareas, butextends democracy, sincewithoutadequate, timelyandreliable willhardly information, society beingoodconditionto participate and responsible ofindividualsand toconsolidate aparticipatory a meaningful, efficientandinformed participation There isnodoubtthataccessto information becomesafundamentalprerequirement for empowering citizens to achieve 19 guarantee, through clearandeffective mechanisms, right access to information,to the whichinaccordance with article 43 AND ACCESS TO INFORMATION? V. WHAT ARE THE BENEFITS GET THE BANKCAN WITH THE IMPLEMENTATION OFA TRANSPARENCY POLICY of the Universal Declaration of Human Rights includes access, application and knowledge ofdata,documentsand includesaccess, oftheUniversal ofHumanRights applicationandknowledge Declaration information andopinions, andto issuethem,withoutlimitationofborderlines, by any meansofexpression. to freedom hastheright ofopinionandexpression;Everyone includesto notbeoffended thisright becauseoftheiropinions, research and receipt GUIDELINES FOR DISCUSSION 31 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) Any system or democratic institution that expects to be legitimate and reliable in its operations should supportshould operations its in reliable and expectstransparencythat institution democratic or legitimate be system to Any internally and externally credibility. since this gives information, and access to 10. Improves the credibility of the institution the credibility 10. Improves To adopt a Policy of Access to Information that includes the highest standards of transparency and access to information of transparency information Information and access to to that includes the highest standards of Access adopt a Policy To regulations with that in other institutions, their transparency regime and compare harmonize to the institution will allow internationally the existing best practices, adjust to it to allow would This scope. in the national and regional or legislations especially in Latin America. 9. Harmonization with the highest standards of transparency and access to information existing in national and in national existing information to and access of transparency with the highest standards 9. Harmonization institutions and in other related and legislations regulations regional To provide in due form and time all information that employees require to develop their routine activities improves their activities improves routine their develop to require employees that time all information and due form in provide To performance. 8. Improvement of employees performance of employees 8. Improvement The Bank has to respond and render accounts for the public resources it uses. In this sense, the information available to the to available In the information it uses. this sense, the public resources accounts for and render respond Bank has to The performancepublic will justify the actions proper and the of the Bank and its employees. 7. Promotes the accountability capacity of the institution the accountability 7. Promotes The more information the institution provides and makes it accessible, the greater trust is put in its operations and activitiesand operations in its is put trust greater makesand the it accessible, institution provides the information more The public sector companies and private sector parties, and the different but also investors, not only society in general, by, in operating with the Bank. interested agents who are 6. Increase of the investors trust and public and private sector to operate with the Bank sector operate to and private trust and public of the investors 6. Increase For all this, the creation of effective opportunities for participation and the creation of mechanisms of accessible, accurate, opportunitiesfor participation of effective accurate, the creation of accessible, of mechanisms all this, and the creation For and management of both risks and socio- prevention the possibilities for will strengthen timely and open information conflicts. environmental Regarding the risks, this variable directly strengthens the role of civil society as monitoring agent of works, plans and and plans societycivil of works, of monitoringagent as role the variablethis risks, the strengthens directly Regarding response the opportunities enable a preventive which would In of early detection of risks this way, increase, programs. the socio-environmental Regarding management. and better conflicts, participation actto information as access and responsible persons of in communities find valid interlocutors the demands of the affected Thus, spendthrift of tensions. obtain satisfactory to the project, with possibilities part be and to answers decision-making of the of projects processes and opportunitiesThe denial of information for participation negative only deepens the their lives. that directly affect conflicts. environmental aggravating of civil society, perceptions Environmental and social risks of specific projects and programs funded by institutions such as the BNDES usually generate generate as the BNDES usually by institutions such funded risks and social and programs of specific projects Environmental this context, participation Given initiatives. to of development and access social conflicts that obstruct the progress as important conflicts. operate may riskinformation and environmental management variables for 5. Prevention and management of socio-environmental of conflicts management and and risks 5. Prevention GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 32 Second Part Guidelines for the Discussion SLOVAKIA 4. 3. 2. 1. SECTION I: INTRODUCTION I:INTRODUCTION SECTION TO POLICY’ ‘THE The Governing Principles thatguidethisPolicy are thefollowing: are developed, eitherinsideoroutsideBrazil. regardless thePolicy financed turn, appliestoby theBank, ofthe place where alloperationsandactivities thesame In Institution” orany reference othersimilarconcept,itisunderstood thatmakes to alltheBNDESSystem asawhole. three BNDESPAR subsidiaries: FINAME and BNDES Limited. From now on, by mentioning BNDES”,“the Bank”,“the “the This Policy appliesto alldenominated “BNDES System”, oftheBankandits whichincludesthe operationsandactivities to revealresults. ittries and theuseofpublicresources. turn, itsactivities In what allows improving thedesign andrealization ofitsoperationsandactivities, thereby strengthening development concerned, and operation of the about institution the and activities, toobjectives strengthen links with the parties applyingthispolicy,By theBankassures to to increase promote publicawareness dialogue andpublicparticipation; and for theproper operationofdemocracy, because: a dialoguewiththepublicandto increase theirawareness oftherole oftheinstitutionindevelopment process; transparency, accessto asbasicandfundamentalinstrumentsto information create andaccountability andmaintain The Bank (BNDES) reaffirms BrazilianDevelopment and reflects, through thispolicy, its strong commitment to Principle 2:Clear andDelimited Exceptions • Principle 1:Presumption inFavor oftheAccess to Information • Access • Transparency, • The • The • Access • monitoring and evaluation ofthemanagementgovernment andevaluation monitoring officialsandpenalize the offenders. ondevelopment; to ensureimpact proper useofpublicresources; to prevent and to contribute conflicts tothe healthy ofcitizens, environment, aproductive health,politicalparticipation andhealthy life, amongmany others; to andprotection to guarantee ofotherfundamentalhumanrights, education,a suchastheright fullvalidity efficient and informed participation of individuals, and to strengthen a responsible and participatory democracy; ofindividuals, and tostrengthenefficient andinformed participation a responsible and participatory implementation ofeffective publicpolicies; development ofbothelementsprevents theconcentrationofinformation inafew hands; right right to to of information of public access access access information to to information, becomes to public information information forms a fundamental in addition a and necessary is accountability strongly to pre-requirement the and creation linked fundamental are of to key for a freedom substantive empowering instruments instrument of expression right citizens, for to itself, the combat and proper has to achieve an the corruption instrumental preparation promotion a meaningful, and and and role its GUIDELINES FOR DISCUSSION 35 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) Translations , which considers all the all considers which , Transparency Active clear and simple procedures of dissemination and access to to and access of dissemination clear and simple procedures and dissemination of certain and dissemination declassification is restrictedthat information Although the Bank is committed to ensure the principle of Presumption the principle of Presumption ensure to Although the Bank is committed 2: Clear and DelimitedPrinciple Exceptions. certain are that there particular Information,disclosure the to recognizes in which also cases it Access of Favor in The BNDES recognizes the fundamental importance BNDES recognizes The Information. to of the Access in Favor 1: Presumption Principle accountabilityand activities. information its all in to access transparency, process, development the inspectthat for Information. to of the Access in Favor the Presumption as the basis of this Policy, ensure, it seeks to Therefore, or third (own it is assumed that the Institution they have the public all the information Thus, makes to available of exceptions. and clearly group a limited delimited party’s), for except under which Transparency Passive the Bank. by on the other hand, dissemination And, routine and automatic • Routine and Dissemination 3: Automatic Principle • Request Information to and Simple Procedures 4: Clear Principle • and Revision Appeal of Right to 5: Acknowledgement Principle • of and Availability Information to Access 6: Universal Principle • • , for which the Bank agrees to to which the Bank agrees , for Information to Access of policyThis favor startsin the principle of Presumption from unless such date; or preparation format of its origin, regardless in its possession, all information public access to give in Section in the list contained clearly delimited of this 2-A) within one of the exceptions is committed information that consider of information those applicants to appeal and revision to the right In recognizes turn, this Policy Policy. policy of this is in breach that the Bank and demonstrate restricting certain to access or inappropriately information the of time, the passage With unreasonably. in its information any Information, access to to the Bank will allow of Access in favor the Presumption to According in Section listed 2 B) the List of Exceptions possession, unless it falls within one of the categories clearly by delimited of this Policy. Information to existing in and Access Transparency on of the Principles this Policy, for the validity, Bank recognizes The turn, in But, particularof set a establishes regime it special system. legal Brazilian the to applicable Principles Governing of the Institution. Transparency Information to and of Access PRINCIPLES GOVERNING Principles: Governing the following is guided by Policy This is considered. Ininformation: access to twodistinguishes Bank practice,the ways is subject various means and that, under this Policy, through disseminate that the institution proactively information to or Requests of information. Orders the Bank through to be requested can that is not available determined information policythis establish this, to seeks to According information. which imposes the need transcended Brazilian national borders, that its operations have In turn, the Bank recognizes some that receive companies operate Brazilian place where in the language of the existing information provide to Policy institutional the establishes this this sense, In is a shareholder. it kind where Bank or the from of financing the institution. of documents held by commitment of BNDES of seeking local language translations appropriate certain of this policy and monitoring introduced. implementation elements that make are the proper Finally, Office that depends on the Cabinet a is established; information to of Access a Committee this, to According Monitoringof and measurements ”); and (“BNDES Transparent Bank restructuringWebsite the Transparency of of the preparation and open the door to not exhaustive are measurements These periodic Revision of the Policy. implementation and monitoringadditional documents that consider the regime. SECTION II: THE POLICY SECTION II: 1) 7. 5. 6. GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 36 According to this, theBankwill notgive accessto thefollowing information: 8. 2) EXCEPTIONS to this, itestablishesasystem ofexceptions withthefollowing characteristics: recognizes thatinsomecasesthere are convincing reasons legitimately to restrict confidentialinformation. According ofthisPolicyAlthough thecornerstone isthePrinciple ofPresumption inFavor oftheAccess theBank to Information, 2) 1) • • • • cause the dissemination of certain information andnotonwhohasdeveloped orforeseen.cause thedisseminationofcertain in gainingaccessto suchinformation. Thus, theexceptions thatwould shouldbe basedonthepotential harm accepted interests, whichare specifically listed;to thisinterest andthatb)the harm exceeds thepublic interest andthoroughly todissemination ofsuchinformation oneofasetclearly harm defined and couldcauseserious demonstrated, when it canbe be restricted clearly ona basis caseby caseat the moment of theorder, that: a)the To beclassifiedasconfidential, information shouldgothrough a “HarmTest”. This meansthatinformation canonly Exceptions listed intheLaw ofAccess No. to Information 12.527/2011ofBrazil, Chapter IV. thispolicy, initsinterpretation. In anExceptionsambiguity listispresented, whichshouldbeconsidered withthe exceptions protected are andrestrictions delimitedto by and avoid confidentiality clearly the seeking restricted, is committed to translate faithfullytherequested documents to otherlanguagesthanPortuguese. standardsshould meetthesamequality regardless ofthelanguageinwhichapplicationismade, for whatit thattheinformation provided itacknowledges turn, In characteristics. orothersubjective race, sex,nationality ofhis withoutimportance distinctions arbitrary request it(naturalorlegal),onequalterms, withoutmaking Universal Access to information possessed, underwhichwillprovide information corresponding to allwho Principle 6:Universal Access to InformationandAvailability ofTranslations. The Bankiscommitted to ensure Panel. (OPTION 2) one,an internal andindependentone,external for Independent andother theCabinet Office, fortheAppeals oftheBankAppealestablishedunderthispolicy, separate Mechanism two entities: whichcomprises the Internal at thesametime, applicantscanchooseto require revision oftheBank’s decisionthrough anappealpresented to the provisions of the Law of Access toNo 12.527/2011of Brazil, 2 (OPTION Information 1). But Chapter III, Section violated.requested withoutjustification,orthis hasotherwise Policy This appealprocedure shallbegoverned by administrative procedure has denied them access to the information consider that the Institution of appeal if they andRevision. Principle to Appeal 5:Acknowledgement ofRight The Bankrecognizes ofapplicantsto an theright for theterms free turn, theanswers orlow andsendingoftherequested cost.In information are detailed. clearly details how information III clearly requestsSection are processed, which should be: simple, effective, timely and procedures for aRequest or to to find Information iton make the (“Friendly”) website ofthe Bank. This Policy, inits Principle 4:ClearandSimpleProcedures toInformation. Request this Policy. All thisinformation should be widelydisseminated usingdifferent IIIof mechanisms andmeanslistedSection in areto thePrinciple subject documents listed intheAnnexofthispolicy ofAutomatic Dissemination. andRoutine rules, operationalpolicies, strategies processes, andfundedprojects, itsdecision-making amongothers. All accessible alarge amountoffree itsdirectives information andinstitutional aboutthestructure oftheInstitution, Principle 3:AutomaticDissemination. andRoutine The Bankreveals automatically androutinely andmakes Access No. to Information 12.527/2011ofBrazil. in its interpretation;to ambiguity and that should be considered with by provisions in this regard by the Law of ofPresumptionto theprinciple inFavor oftheAccess thatmay notgive basedoncriteria to Information cause that, itshouldmaintainitsconfidentiality. For this, delimited listofexceptions andclearly a ispreparedrestricted oraffected information mayinterests, bemore thanbeneficial to theparties harmful of certain andbecauseof The Bankestablishesclear, effective andsimple GUIDELINES FOR DISCUSSION 37 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) The person in question expressly consented to provide such information; provide to consented in question expressly person The than 20 years; more is dead for person The labor contact, data of to functions of their official or refers activities within the requested information The institution - - - No legal information that is subject the No legal information to secrecy client-lawyer: between subject professional matters to Legal principle of confidentiality between such privilege client and attorneyenjoys be disclosed unless the person who will it. to renounced has expressly party a third that disclose information to refuse has provided Bank may Party:The Third of Information Confidential could cause serious harmsto dissemination of such information that the it can be proved only when as confidential, party. of that third interests or financial the commercial health or security at person Health and Security: of any whose dissemination can put life, information No access to which that risk should be demonstrated. for national security or the environment, State risk will be given; of any certain access to whose will not give Bank The information of the Bank: Interests and Financial Commercial that they of the can provided Institution, and financial interests the commercial affect dissemination could negatively that result. to can produce this information how demonstrate the of officials of internal deliberations certainNo to whose Institution Information: relating information Deliberative decision-makingdissemination could affect or the particular of the unless the officials Institution is disclosed, interests otherwise expressed. administrative institutional certain to No access to Information: related information InstitutionalAdministrative be given. will among others, acquisitions, hiring of personnel, such as operating expenses, matters its internal operations of cash to relating information BNDES will not provide The Information: Financial Internal financial and capitalaffectfinances and the markets. office whose dissemination could activities of the Bank’s disclose certain to cause refuse when it may Bank may information The about particularInformation Investigation: or disciplinary of commercial damages in an ongoing investigation nature. that could harm and Disciplinary the correctEthics No information operation of the internal bodies of the Matters. Ethics and Accountability of officials and the internal of Discipline, activities of theBank in charge Institution matters will be disclosed. THE TO INSTITUTION RELATING INFORMATION relating to the public all the internal information the BNDES makesavailable Policy, of this date the effective From within one of the can be categorized that that institutional information institution with which count, except the to in Section listed II B) of this Policy. Exceptions and time, and Routineand form due in Dissemination, Automatic of ItPrinciple the to pursuant disclosed be should the disclose routinely that should institutional information Among the the institution. to means available the through Institution Information about Institutional emphasize: of the Bank; Governance Structure and Strategies, its Organic Reportsand Operational other institutional and Financial Enquiry, of Public Plans Policies; Operating and Guidelines in the Annex of this Policy. documents that are The Bank will maintain appropriate safeguards to respect the privacy respect to members and of officials safeguards maintain appropriate Bank will The Information: Personal personal, BNDES will not provide the Therefore, the confidentiality protect of its personal information. and to of the Bank of selectionprocesses of and appointment or of the of its officials, information personal communications medical or unless: staff, 10. 11. 12. 13. 14. 15. 16. 17. 18. 3) 19. 9. GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 38 22. 21. 20. 4) 24. 23. 1) SECTION III:ASPECTS RELATINGSECTION TO THE EXECUTIONANDAPPLICATION OF THE POLICY countries wherecountries fundsprojects orprograms. theBankwillpromote, turn, In according to thisPolicy, effective compliance of nationallegislationrelevant ofthose financing ifcontrary. is, iscommitted to ofthisPolicy respectandcomplywiththeterms ofAccess to losethe withrisk to Information, ororganization thatobtainsfinancing by theBank to developactivity, anyAny specific party whatever theirnationality for withinoroutsideBrazil.of theInstitution activities thathave financing governingandotherparties contractors itsclientsorpartners, orbeheldby theBank, Institution) withclientsorindividuallyby the This appliesto allinformation aboutprojects orprograms to bedeveloped (jointly to the and subject test”“harm into entering oftheexceptions thecategorization listed inthisPolicy. thatensure thefreefinanced by theBank, access to suchinformation, unlessitisspecificallyclassifiedasconfidential of its origin, the Bank will establish through or subcontractors of those this contractors Policy clauses in the contracts the Institution. Thus, andaccording to thePrinciple ofPresumption inFavor oftheAccess to information, regardless and thegeneralpubliccanhave accessto oroperationsfinanceddirectlyindirectly informationby aboutactivities The Bankrecognizes ofestablishingrulesandsuitableclearprocedures parties sothatvarious theimportance INFORMATION RELATING TO THE BANK’S OPERATION This includes, amongothers: project financed by theBank. Therefore, possible, itcommits to theextent to proactively disseminate suchinformation. especially by thecommunitiesandpopulationspotentially indecision-making, affectedeffective bya participation Access to The Decision-Making. Bankrecognizes ofaccess to information for theimportance aninformed and its Website.through This Annex at the end of this Policy presents a list of information that should be routinely disclosed by the Bank theinvolvedproject orprogram inquestion,theBank, companies, amongothers. the establishmentof Centers” Information “Temporary responsible for providing proactive information aboutthe outsuchprojectsorprograms, inplaceswhere theBankshall, turn, carry they inaccordanceIn withthisPolicy, prepare making. involved,language ofthecommunity timelyandfree ofcharge to andwithanadvanceof60days decision- prior potentials, theBankwillproactively disseminate information (to corresponding to be)financed, theactivities inthe casesthatinvolvebe available inpaperformat for projectsorprograms theseparticular easyaccess. In withaffected information thatisrelevant toCertain localcommunitiesoraffected by aproject orprogram financed bytheBankwill for from thispurpose thisPolicy. simple formats, through its Website, andparticularly, through Transparency Website “BNDES Transparent” restructured of the information held by the Bank is disclosed proactively, routinely and automatically and in open, accessible and Active Transparency -Automatic accordance 6,most withtheprovisions Dissemination. and Routine In ofArticle PROCEDURES FOR THE ACCESS TO INFORMATION plans, reform information aboutenquiry andrevision ofprograms andinstitutionalstrategies oftheBank; • specific • organizational standards; information about the decision-making procedures of the institution, and its procedures and GUIDELINES FOR DISCUSSION 39 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) are decisions important where processes deliberative other and communications meetings, about taken for the institution; taken for • Information enquiry about public participative and the Bank. conducted by processes • approval; its under discussion for or programs about projects information • Information This information will be made available to the public 60 days in advance of the decision-making, in order to promote promote to the decision-making, in advance of the public 60 days in order to available will be made information This participationeffective of the partiesconcerned. requested be may hands Bank the by held information required Any Requests. - Information Transparency Passive an Information Request.through Information be bent on the Information Citizen may Applicant RequestThe via e-SIC for System (Electronic system Service) receiving Information to No 12.527/2011, or through of Access the National Law to established pursuant hands. that is in the specific information Institution’s provide the Bank to by Request created of information system a written Information the Bank, Request present to person may as postal mail, means such electronic either by Any as accurate information requested the There by the Bank. Offices in person at the information created fax or even a specific requires When the Applicant find it easily. the Bank to as possible will be detailed and described allow to its location (project facilitate as possible about such document to document should try as much information provide to Otherwise, etc.). origin, country receive the Bank officials that is introduced, the project of approval, where date title, requests. oral receive will the Bank Requestthe try cases, same. of the deficiencies In exceptional technical the solve to in the information Spanish and English, and the Bank will provide in Portuguese, Information Requests will be received is made. language in which the request Bank will acknowledge the of the same within the request, receipt Once receiving Requests. Response Deadline to the Request to an open, accessible and clear response a maximum of 5 working and will provide after the receipt days in the event its response delay in the course of the next the Bank may 20 working In circumstances, exceptional days. inform the Applicant to find in which case it shall complex or difficult is voluminous, information that the requested the where to cases In submission. in delay the of immediately turn, information makewill Bank the efforts provide to In the applicant should clarify is urgently in its Request that case, that the information required. is urgently information effective a harm,to promote to prevent justified based on: are requests it. Urgent for the reasons detailing required, among others. participation, security, of human rights protection or environment, information In requires Bank is subject information. The the request the principle the event to of free and Costs. Fees In its reproduction. that the person does not possess the event to corresponding fees in print, charge Bank may the that information. the cost of access to subsidize the Bank will seek to the necessary resources, set of Exceptions that fall within the system requests those information reject Rejections Bank may The of Requests. forth in Section II-B). possibility the of notified be will applicant the using of request, Ininformation the rejects Bank the which in event the will be described. the Bank, applicable to procedure and the corresponding the Appeal Procedure APPEAL PROCEDURE the Bank, by with the denial of information lodge If they may applicants disagree Appeal. and ReasonsInstances for Chapter Information to 12.527/2011 of Brazil, No of Access the Law established by the procedure an Appeal following 1) III, Section 2. (OPTION to an appeal presented decision through of the Bank’s the revision require choose to may applicants the same time, At the Internal instances, which consists of two separate Mechanism policy, of Appeal of the Bank established under this the institution, and another externalan internal one to institution: a) complaint before the and independent one to 2) (OPTION Panel of Appeals. Officethe Cabinet the of the Bank; Independent and b) complaint before 25. 26. 27. 28. 2) 29. GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 40 34. 4) 33. 32. 3) 31. 30. Committee ofAccess specifically created to Information, for thispurpose. of organization,a work classificationandsystematization ofalltheinformation thatcurrently owns, through the into force ofthe Prior andrestructuring to theentry ofthispolicy Transparency Website, theBankcommits to perform systematized andorganized andwhere simple mechanismsare establishedto findthesoughtinformation. the publica Transparency Portal “BNDES Transparent” where databaseswithalltheinformation heldby theBankis Transparency Website. BOUND ASPECTS TO THE CORRECT IMPLEMENTATION OF THE POLICY 10 and20years, according to thedocument. This deadlinewillbeestablishedatthetimeofclassifyinginformation. which atitstimewasclassifiedas restricted. 5, between The deadline for thedeclassificationofdocuments may vary DeclassificationInformation. of informationWith thepassageoftime, theBankdeclassifiesanddisseminates certain regardlessInformation, ofitsorigin. provided to theBankandthatthisshouldspread underthePrinciple ofPresumption inFavor oftheAccess to financed theBankwillrequireby theBank turn, to classifyalltheinformation andthird In to parties clients, partners classified inthiscategory. date ofthisPolicy. From into force, theentry theBankwillbegin withroutine disseminationofthosepublic documents eachofthedocumentspreparedcategories by to theinstitution and alldocuments held by theeffective theBankprior Pursuant to theprovisions ofthisPolicy, Bank’s officialsshouldensure toclassifyinoneofthethree mentioned documents inthepossessionofBankwillbeclassifiedaccording to the following three categories: Institution’sClassification oftheinformation inthe information. All hands, to thepre-existing whichwillbeextended ClassificationInformation. of From theeffective date ofthis Policy, theBankwillbegin system applyinganew of CLASSIFICATION ANDDECLASSIFICATION OFINFORMATION decision isfinalandsuchdocumentsused to argue shouldbepublic. come to aconclusion,by Its whichhasthepowerOffice. to thedecisionadopted revoke orconfirm by the Cabinet byineligibility theCabinet Office. Independent The Panelwillanalyze thecomplaintwithin60calendar days, andwill days should do thatinwriting, of the determination after via email, mail or fax, within 15 working It of the Institution. inmattersAppeals, of whichconsists of three experts Transparency andAccess to independently information, andacts before Independent theapplicant theCabinetmay appeal Office, tothesecondinstanceofappeal: Panelof Appeal before Panel theIndependent ofAppeals. thecaseofreceiving arejectionoftheappealappeared In ofanappeal. isempowered by virtue Office tocorrect breaches ofthis considernecessary ifthey Policy Inaddition,the Cabinet should that decision. prepareCabinet Office adocumentwiththe arguments thatsupport days.the requested Ontheother hand, 15 working information ifthe appeal isineligible, inthecourse of thenext the Iftheappealiseligible, adecision. theapplicantshould tomake receivemay consultthird the Cabinet parties Office days. andshouldprovidenecessary, itseligibility determine If aresponse 15working to theappealwithinnext within 60calendardays theBank’s after response to theinitialrequest. willanalyze theclaimThe to Cabinet Office in charge of Transparency withintheBNDES.Appeals in thisinstanceshouldappearwriting, viaemail, mailorfax an appealinlightofadenialtheBank’s information isthrough acomplaintpresented before theCabinet Office, Appeal before theCabinet Office. The firstinstance to whichtheapplicantshouldappealincaseitwants to present the accessto information. of access providedright in the Law of Access No.to Information 12.527/2011, by denying inappropriately or restricting The appealto theBank’s decisionmay bepresented orthe againstacomplaintofthattheBankhasviolated thispolicy “Confidential” • “For Use” Official • “Public” • To facilitate accessto allinformation routinely disseminated, available to theBankmakes GUIDELINES FOR DISCUSSION 41 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) to current have involved followed to be Bank, to access the concerned of steps and parties question, regime in the new procedures the program possibility the or the regarding and project contains the Bank that of policy the this of policy of Passive) this and sectors of content Active and different document (both the existence and the staff information totally Implementation train an specific and advise develop disseminate provide partners or companies, or any other relevant information. partners other relevant or any or companies, make use of it. information; for a proper operation of the regime of access to information established under this Policy. established under this information of access to operation of the regime a proper for • in question. or program dissemination about the project meetings and workshops of information organize To • To • applicants and Information as a link between Offices information operate Bank Headquarters. or the Central To • To • perform the monitoring of the Information them; Requests to and rejections To • carry out yearly assessments of Implementation of the Policy. To • performance the the correct of this policy; implementation coordinate ensure and to To • the Bank; by owned the information classify and systematize organize, To • To • To Although the Bank regularly handles with Portuguese as its official handles with Although the Bank regularly Websites. and Languages of Translations other languages, possible number of documents into the importance the greatest translate to it recognizes language, by the Bank outside financed projects or programs to When it is about documents related mainly Spanish and English. in English and Spanish. In websites such documents. turn, have the Bank will translate the Bank commits to Brazil, Bank will tryThe understand to and difficult information that this technical Information. and Contextual Technical context to and by documents if necessary, a simple explanation thereof the population be accompanied by for the non-expert the understanding of them by facilitate population. For the formation of that Committee, the Bank will initiate an inclusive process with the activethe with participation process inclusive an initiate will Bank the of Committee, of that formation the For Information to and Access Transparency, to civil society of the and Parties that work agendas related Organizations activities of the Bank. of the Bank, of information the activities decentralize In of dissemination and provision to Offices. order Information the region where of Brazil or in Information States various countries Offices of the will be established either in different Information Requests. receive to be empowered will They Institution the developed. projects funded by are in each Information Centers Temporary of establishing be in charge Bank will The Centers. Information Temporary negative potential and that have developed the institution are funded by or programs projects of the places where Headquarters or the Information Bank’s distant from and that are impacts or the environment either on communities as function:have shall Offices. Centers Such Such restructuring of the Transparency Website will allow specific instruments to facilitate access to information for the to information access facilitate to specific instruments allow will Website Transparency Such restructuring of the of presentation Requests. Information simple and effective Institution and for a scheme, within its institutional the Bank will create this Policy, to According Information. to of Access Committee include, will The functions Committee the of Information, Office. Cabinet to of the dependent Access of Committee among others: 39. 38. 36. 37. 35. GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) 42 43. 42. 41. 40. SECTION IV:SECTION PROMOTION, MONITORING OF ANDREVISION THE POLICY to information created thereunder. effective implementation,operation,promotion anddisseminationofthis andtheinstitutional regimePolicy ofaccess Promotion,Resources. and Diffusion andinvolveresources efforts The Bankcommits to make thenecessary for the oftheoperationPolicy.reports aspects. Later,the deadlines, andotherimportant asprovisions thisinformation for willserve theannualmonitoring shall contain:thedates werethatreceived inwhichtheRequests Banksector performed, them,thegiven answer, Requests, therejections anditsresults. Information willconstantly monitor theperformed Information, This monitoring Tracking andMonitoring ofInformation andRejections: Requests through theCommitteeThe Bank, ofAccess to them. towith interested receive in order provisionsparties to about the operation of the strengthenpolicy and experiences aboutImplementation ofthePolicy.Public Enquiry publicenquiries outperiodic The Bankwill(annually)carry processes. it,intransparent to andparticipative and external, strengthen andperfect regular three andthorough years, revisions willalsoperform ofitevery bothinternal abouttheircondition.It Reports Periodic RevisionandMonitoring. The Bank will constantly monitor the operation ofthis Policy, preparing Annual GUIDELINES FOR DISCUSSION 43 Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) The Bank should disclose all information regarding the structure and regarding Bank should disclose all information The the Bank by Clients) Funded (Partners, Parties Third Viability of the Undertaking Monitoring and Tracking Information of the Projects Tracking Monitoring and Social and environmental impact the Bank funded by of projects Social and environmental Detailed information of projects funded by the Bank funded by of projects Detailed information Results of Public Enquiries and participative Results of Civil Society of Public processes Social and Environmental Information of possible investments Social and Environmental Information Summary about Investments Investments Period of the Bank Period Investments » » » » » » » » » » » » » » • Certain Information to Belonging • Information about Institutional Governability of the Bank • and Inspection of Administration and Boards Committee Audit Actions and Decisions of the Board, • policies and strategies Operative • Information and budget Financial • Monitoring reports • Carbon footprint • General Information and of contact about the personnel • Period Information about Project • Period in the Project Decision-making Process • Information about the Financial • and Social the Bank Impacts funded by Information about Environmental of the Projects • the Bank funded by Monitoring types and Projects of Companies • Holding of the Bank Information about Operations of Share • Investments to Information related inner operations of the Institution. Non-exhaustive disclosed examples of this type be routinely that should of information the Bank are: by (jointly prepared BANK:THE or programs about projects All information OF OPERATIONS TO RELATED INFORMATION the Bank, held by the institution) or that are its clients or partners,with clients or individually by contractors, governing and other parties routinely disclosed. financing of the for activities or outside Brazil should be within have that Institution the Documents all, stand out, above include, the Bank by disclosed be routinely Among these documents that should Documents of of the Bank; as Approval as well Programs and of Projects Assessment the Environmental to relating Instruments.Investment Other (Non-exhaustive) examples that fall within this category are: INFORMATION RELATED TO THE TO INSTITUTION: RELATED INFORMATION INFORMATION THAT SHOULD BE ROUTINELY DISCLOSED BY THE BANK THE BANK BY DISCLOSED SHOULD BE ROUTINELY THAT INFORMATION ANNEX LINEAMIENTOS PARA LA DISCUSIÓN Implementación de una política de acceso a la información para el Banco Nacional de Desarrollo Económico y Social de Brasil (BNDES) 44 GUIDELINES FOR DISCUSSION Implementation of an Information Access Policy for the Brazilian Development Bank (BNDES) Was printed in the workshops of REALIDADES S.A. Augusto Tamayo #190 Of. 5 E-mail: [email protected] Website: www.realidades.pe The printing was completed in January 2014