This Wednesday (7), the 6th Panel of the Federal Regional Court 1st Region (TRF-1) unanimously condemned the Brazilian Intelligence Agency () to release a set of information already disqualified, but which were illegally maintained by the agency under confidentiality. The action was filed by stay knowing with the office of Limalaw and represents an unprecedented milestone: it is the first major judicial victory based on (LAI) against the abusive and indefinite use of secrecy in Brazil. The decision is second instance. It is up to appeal.
The determination of TRF-1 reaffirms what LAI foresees since the beginning of its effectiveness in May 2012: the maximum confidentiality deadlines are five years for reserved information, 15 years for secret and 25 years for UltraSecretas. “The classification period has elapsed,” “information will automatically become public access.” As we argue in the process, there is no margin of discretion to the Public Administration to grant —or no – access to this information.
For lawyer Fernando Canhadas, responsible for the action, the decision “is historical”.
“There has always been a conceptual confusion regarding the scope of application of LAI. Some organs were oblivious to the lai precisely by the nature of the information they hold, and Abin is the most iconic example of this,” says Canhadas, author of “The Right of Access to Public Information: The Principle of Administrative Transparency”, a pioneer work between the doctrine relating to LAI in the country.
The action of Stay Knowing was filed in 2020 as an unfolding of our project without confidentiality, which mobilized to request the full documents whose classification period had expired. We received thousands of pages of dozens of organs, but we also face the resistance of Abin,,,, Itamaraty, which simply refused to deliver the documents, even without legal support. UOL reporter Eduardo Militão, who participated in our task force, was the author of the requests made based on the LAI that underlined our request.
And why do we choose to process abin? Our bet is that, overcoming the most resistant organ in public transparency in the country, the others would fall for gravity.
During the process, the Union did not contest that the documents were disqualified. It only claimed that its content could “expose the agency itself, as well as the servants who work in it.” In the first instance, contrary to the spirit of Lai, justice understood that Abin would act in “specific universe” and that it would be up to the agency itself to decide what to disclose and when. The decision, now overthrown, maintained, in practice, that Abin could self -legal – fortunately, corrected by the second instance.
If the government could keep up with information whose deadline has already expired, then there is no deadline. And in practice, eternal confidentiality would prevail.
This change of understanding of the Federal Justice, now in line with the fundamental right to information enshrined by CF88, delimits a valuable precedent. “It is a watershed that will now guide the performance of the organs that have information of this nature,” explains Canhadas.
The unanimous decision in favor of Stay Knowing is a historical victory of civil society. It represents explicit recognition by the judiciary that the limits of confidentiality in Brazil exist – and must be respected. Confidentiality cannot be eternal. The law is clear. And public information belongs to the people.
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