Gregory1 MichenerTHE BRAZILIAN, Luiz STATE Fernando AND TRANSPARENCY Marrey Moncau and Rafael Velasco The Brazilian State and Transparency Evaluating Compliance with Freedom of Information Cover art: Laura Lydia Graphic Design: Felipe Labouriau This work is licensed with a Creative Commons License - Attribu- tion-ShareAlike International 4.0. To view the full legal license visit: https://creativecommons.org/licenses/by-sa/4.0/legalcode. You have the right to: Share — to copy and redistribute the material in any medium or format. Adapt — remix, transform, and build upon the material for any pur- pose, including commercial. The licensor cannot revoke these freedoms as long as you follow the license terms. Under the following terms: Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but must not in any way suggest endorsement from the licensor. ShareAlike — If you remix, transform, or build upon the material, you must distribute your contributions under the same license as the original. No additional restrictions — You may not apply legal terms or tech- nological measures which would legally restrict others from use permitted by the license. The comments and findings included in the publication of this re- search are the sole responsibility of the authors and do not necessar- ily represent the opinion of the Getulio Vargas Foundation (Fundação Getúlio Vargas, FGV). 5 THE BRAZILIAN STATE AND TRANSPARENCY Acknowledgments A public transparency audit is an intensive undertaking and demands extreme organization and coordination - especially in the case of two evaluations involving dozens of jurisdictions, approximately 60 ques- tions and more than 700 FOI requests. Many people have contributed to this initiative since it began to take shape over a year ago. Firstly, we would like to acknowledge the essential support provided by the Open Society Foundations (OSF) without which this work would probably not exist. The editors would like to thank the whole team who worked on this project. Gratitude goes to Karina Rodrigues Furtado from the Brazilian School of Public and Business Administration (EBAPE) who, as research assistant to Gregory Michener, examined the methodol- ogy and results of each evaluation of transparency in Latin America since 2004 - a task which ultimately inspired the Transparency Au- dit Network and the partnership between the Getulio Vargas Foun- dation (FGV) at EBAPE and the Center for Technology and Society at the FGV Law School, Rio de Janeiro (FGV DIREITO RIO). Many people were involved in helping to develop, gather and provide feedback on audit issues, including Joaquim Falcão, Marilia Ferreira Maciel, Pe- dro Mizukami, Karina Rodrigues, Marina Barros, Irene Niskier, Pedro Augusto Pereira Francisco, and Vitor Coff del Rey. We thank Marina Barros, Karina Rodrigues, and Jamila Venturini for writing parts of the report and for contributing to the data analysis. Additionally, we thank the students of the FGV DIREITO RIO; Jonas Coelho, Luiz Car- los Penner Rodrigues, and Pedro Henrique Lourenço da Costa for their assistance in submitting Freedom of Information (FOI) requests and appeals throughout the Judicial Branch Audit. We are also grateful to the people who read early drafts of this report, including Pedro Mizu- kami, Ivar Hartmann, Pablo Cerdeira, Diego Werneck, Fernando Leal, Maria Candida Rolim, and Luiz Antonio Jucá Serão; as well as those who helped with coding, calculations, proof reading, and organizing data; - Tatiana Carli Mota, Marcelo Desterro Queiroz, Rebecca Davies, and again, Luiz Antonio Jucá Serão. We also thank Ernesto Vilchis 6 THE BRAZILIAN STATE AND TRANSPARENCY for the English translation, Felipe Labouriau, who was responsible for the report’s graphics, Laura Lydia, responsible for the cover’s art work, and Rachel Bevilacqua Daza, and Livya Lemos Bandeira de Mello, who helped with the seminar’s logistical and design related work. Finally, we thank both the Vice-Director of EBAPE/FGV, Álvaro Cyrino, and the Director of FGV DIREITO RIO, Joaquim Falcão, for their unswerving lo- gistical and moral support. Gregory Michener Associate Professor, EBAPE1/FGV2 Director, Program for Public Transparency (PTP)3, FGV Luiz Fernando Marrey Moncau Manager Center for Technology and Society (Centro de Tecnologia e Sociedade)4, FGV DIREITO RIO5 Rafael Velasco Program Coordinator Program for Public Transparency, FGV 1Brazilian School of Public and Business Administration or Escola Brasileira de Administração Pública e de Empresas. 2Getulio Vargas Foundation or Fundação Getulio Vargas. 3Public Transparency Program. 4Center for Technology and Society. 5Getulio Vargas Foundation Law School, Rio de Janeiro. Table of Contents 14 EXECUTIVE SUMMARY 21 INTRODUCTION 26 Chapter 1 – METHODOLOGY 26 1. General Audit 29 1.1 Setting up the field experiment; user identities to test for bias 30 2. The Judicial Branch Audit 31 3. Preparations; procedural rules to ensure realistic responses 32 4. Metrics 32 4.1 Defining what constitutes a response 33 4.2 Evaluating response accuracy rates 33 4.2.1 Accuracy evaluation criteria 33 4.2.2 Double coding of responses 34 4.2.3 Testing the reliability of double coding 36 4.3 Timeliness of responses 37 Part 1 – GENERAL AUDIT 37 Chapter 2 – RESULTS 37 1. Introduction 37 2. Aggregate analysis 38 2.1 Jurisdictional level analysis 44 2.2 Analysis by branch of government 50 3. The field experiment; user identities and question groups 51 3.1 Results; descriptive statistics 53 3.2 Statistical tests 55 4.Conclusions Click on the number to go to 56 5. Appeals; their place in the study the especific page 8 THE BRAZILIAN STATE AND TRANSPARENCY 56 5.1 Introduction; background and procedure 57 5.2. Successful appeals; overturning unsatisfactory responses 59 Chapter 3 – BEST PRACTICES AND BARRIERS TO TRANSPARENCY 59 1. Introduction 59 2. Best practices 60 3. Barriers to Public Transparency 61 3.1 Requirements that the request be submitted or retrieved in person 63 3.2 Rejection of the request based on a broad interpretation of the “undue additional work” clause 65 3.3 Transmitting information in formats not processable by computers 67 3.4 Aggregation of information in a pattern different from the original request 67 3.5 Implementation of potentially intimidating procedures 69 Chapter 4 – AUDIT OF THE PLATFORMS USED TO MANAGE FOI REQUESTS 69 1. Introduction 69 2. Information access barriers: a lack of compliant digital platforms 70 2.1 Impossibility of filing an appeal 70 2.2 Character limits 70 3. Evaluation of digital platforms 71 3.1 Methodology of evaluation; what constitutes a good FOI digital platform? 71 3.2 Submission of a confirmation email 9 THE BRAZILIAN STATE AND TRANSPARENCY 72 3.3 Submission of a notification of response 72 3.4 Availability of a specific section for filing appeals 72 3.5 Use of log-in procedure instead of confirmation/protocol numbers 72 3.6 Summary 73 4. Comparative analysis of digital platforms 75 5. Conclusions 76 Part 2 – JUDICIAL BRANCH AUDIT 78 Chapter 5 – RESULTS 78 1. Methodology 78 1.1 Audit coverage 79 1.2 Development and submission of requests 79 1.3 Topics of requests 87 1.4 User identities: simulating the request process 88 1.5 Submission of requests 88 1.6 Appeals 89 1. 7 Field experiment; testing responses to justified vs. non-justified requests 90 2. Results 91 2.1 Results by request category 91 Request Category 1 94 Request Category 2 96 Request Category 3 98 Request Category 4 99 Request Category 5 101 Request Category 6 103 Request Category 7 105 2.2 Detailed results 107 2.3 Analysis of the courts 10 THE BRAZILIAN STATE AND TRANSPARENCY 110 Chapter 6 – BARRIERS TO TRANSPARENCY AND ACCESS 111 1. Bureaucratic barriers 113 2. Legal and regulatory barriers, and misuse of exemptions 113 2.1 Excessively broad interpretation of exemptions 114 2.1.1 Disproportionate or unreasonable requests 115 2.1.2 Generic requests or requests requiring additional work 116 2.2 IMisinterpretation of exceptions; – active transparency and the format of documents 117 2.2.1 Requests for information already available in active transparency platforms 119 2.2.2 Questions regarding data format 123 Chapter 7 – EVALUATING THE PLATFORMS USED 125 CONCLUSION 133 REFERENCES Click on this link at the top of any page to go back to the Table of Contents Index of figures 38 Figure 1 – Results of aggregate analysis 38 Figure 2 – Aggregate analysis of average response time 39 Figure 3 – Federal level results 39 Figure 4 – Average response time at the federal level 40 Figure 5 – State level results 41 Figure 6 – Average response time at the state level 42 Figure 7 – Municipal level results 43 Figure 8 – Average response time at the municipal level 44 Figure 9 – Results by government branch 45 Figure 10 – Average response time by government branch 46 Figure 11– Analysis of Executive branches by jurisdictonal level: States and Federal Government 47 Figure 12 – Average response time of executive branches by jurisdicitonal level: States and Federal Government 48 Figure 13 – Analysis of Executive branches by jurisdicitonal level: municipalities and federal Government 49 Figure 14 – Average response time of Executive branches by jurisdicitonal level: Municipalities and Federal Government 51 Figure 15 – Field experiment results 52 Figure 16 – Average response time for field experiment 91 Figure 17 – Aggregate analysis results of Judicial Branch Audit 92 Figure 18 – Results of request category one