STF confirms suspension of restrictions on access to information during the pandemic

Explain that this controversy is directly linked to transparency, which covers the meanings of information that are complete and easily located.

The Plenary of the Supreme Federal Court, last week, unanimously endorsed the preliminary decision by Minister Alexandre de Moraes in the Direct Action of Unconstitutionality 6.351 / DF, proposed by the Federal Council of the OAB, suspending the effectiveness of Article 6-B of the Law nº 13.679 / 2020, which limited access to information provided by Public Administration bodies or entities during the pandemic caused by the spread of the new Coronavirus.

Provisional Measure No. 928/2020 amended Law No. 13,679 / 2020, on measures to deal with the pandemic, including articles 6-B and 6-C that deal, respectively, with requests for access to information and deadlines in administrative processes. The first device suspended “the deadlines for responding to requests for access to information” in the bodies or entities whose servers are away by quarantine or teleworking regime, which depended for their response to face-to-face access or to an agent involved with measures to combat emergency situation. In addition, it stipulated the lack of knowledge of the appeals eventually brought against the denial of access to information based on these circumstances.

Explain that this controversy is directly linked to transparency, which covers the meanings of information that are complete and easy to locate, in addition to the quality of these data, verified through examination by third parties, mention of their sources and simplification, in order to that it is possible to use them for assertive conclusions about some phenomenon. In this way, it involves the availability of access to this information by the Public Administration and the fulfillment of requests for requests.

In the March decision, Reporting Minister Alexandre de Moraes understood that the requirements for granting the precautionary measure were present in the specific case “since the contested article intends to transform the exception – confidentiality of information – as a rule, removing the full incidence of the principles of publicity and transparency ”, therefore, the inversion of the purpose of constitutional protection to free access to information, considering the advertising principle that guides administrative action (art. 37, caput) and the fundamental right of access to information ( Article 5, XXXIII), both enshrined in the constitutional text.

He explained, in this sense, that the principles of publicity and transparency are directly related to the participation of citizens in a democratic political regime, which, according to the Reporting Minister, “is only strengthened in an environment of total visibility and the possibility of critical exposure of various opinions on public policies adopted by government officials ”, so that“ access to information is a real instrumental guarantee for the full exercise of the democratic principle ”.

In the session that endorsed the preliminary decision, Minister Alexandre de Moraes reiterated that understanding, emphasizing that the principle of publicity and the guarantee of access to information are “indispensable vectors for Public Administration”, with “absolute priority in administrative management”, which gain even more relevance in the time of a pandemic, so that the provision of the Provisional Measure would remove “the full incidence of the principles of advertising and transparency”, being accompanied by the other Ministers.

By: Wilson Sales Belchior