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Brazil - confidential information: the subject temporarily to the restriction of public access because of its indispensability for the security of society and the State;

Art. 23 -LEI Nº 12.527, OF NOVEMBER 18, 2011

Presidency of the Republic Civil House Legal Sub-Office

LAW No. 12,527, OF NOVEMBER 18, 2011

Mensagem de vetoVigência Regulamento

Regulates the access to information provided in item XXXIII of art. 5, item II of paragraph 3 of art. 37 and in § 2 of art. 216 of the Federal Constitution; amends Law No. 8,112 of December 11, 1990; revokes Law No. 11,111 of May 5, 2005, and provisions of Law No. 8,159, of January 8, 1991; and makes other arrangements.

THE PRESIDENT OF THE REPUBLIC Let me know that the National 


Congress



decrees and I sanction the following Law:





CHAPTER I



GENERAL PROVISIONS

Article 1 This Law establishes the procedures to be observed by the Federal, State, Federal District and Municipalities, in order to guarantee access to information provided in item XXXIII of art. 5th, ninth sentence of § 3 of art. 37 and in § 2 of art. 216 of the Federal Constitution.

Single paragraph. Subordinate to the regime of this Law:

I - public bodies that are members of the direct administration of the Executive, Legislative Branches, including the Cortes de Contas, and Judiciary and the Public Prosecutor's Office;

II - municipalities, public foundations, public companies, mixed-capital companies and other entities directly or indirectly controlled by the Union, States, Federal District and Municipalities.

Article 2. The provisions of this Law shall apply, as appropriate, to non-profit private entities that receive, for public interest actions, public funds directly from the budget or through social subsidies, management contract, term of partnership, covenants, agreements, adjustments or other similar instruments.

Single paragraph. The publicity to which the entities mentioned in the caput are submitted refers to the portion of the public resources received and their destination, without prejudice to the rendering of accounts to which they are legally obligated.

Article 3 The procedures provided for in this Law are intended to ensure the fundamental right of access to information and shall be carried out in accordance with the basic principles of public administration and with the following guidelines:

I - observance of publicity as a general precept and secrecy as an exception;

II - disclosure of information of public interest, regardless of requests;

III - the use of media made possible through information technology;

IV - fostering the development of a culture of transparency in public administration;

V - development of social control of public administration.

Article 4 For the purposes of this Law, it is considered:

I - information: data, processed or not, that can be used for the production and transmission of knowledge, contained in any medium, medium or format;

II - document: unit of record of information, whatever the medium or format;

III - confidential information: that subject temporarily to the restriction of public access because of its indispensability for the security of society and the State;

IV - personal information: that related to the natural person identified or identifiable;

V - information processing: set of actions relating to the production, reception, classification, use, access, reproduction, transmission, distribution, archiving, storage, disposal, evaluation, destination or control of the information;

VI - availability: quality of information that may be known and used by authorized individuals, equipment or systems;

VII - authenticity: quality of information that has been produced, issued, received or modified by a particular individual, equipment or system;

VIII - integrity: quality of unmodified information, including origin, transit and destination;

IX - primary: quality of information collected at source, with the maximum possible detail, without modifications.

Article 5 It is the duty of the State to guarantee the right of access to information, which shall be cleared through objective and agile procedures, in a transparent, clear and easily understood language.

CHAPTER II

ACCESS TO INFORMATION AND DISCLOSURE

Article 6 It is incumbent upon the organs and entities of the public power, observing the applicable specific norms and procedures, to ensure:

I - transparent information management, providing broad access to and dissemination of information;

II - protection of information, ensuring its availability, authenticity and integrity; and

III - protection of confidential information and personal information, subject to its availability, authenticity, integrity and possible restriction of access.

Article 7 Access to the information referred to in this Law includes, among others, the rights to obtain:

I - guidance on the procedures for obtaining access, as well as on the place where the desired information can be found or obtained;

II - information contained in records or documents, produced or accumulated by its organs or entities, collected or not to public archives;

III - information produced or guarded by an individual or private entity resulting from any relationship with its organs or entities, even if this bond has already ceased;

IV - primary, complete, authentic and up-to-date information;

V - information on activities carried out by the organs and entities, including those related to their policy, organization and services;

VI - information pertinent to the administration of the public patrimony, use of public resources, bidding, administrative contracts; and

VII - related information:

a) the implementation, monitoring and results of the programs, projects and actions of public bodies and entities, as well as proposed goals and indicators;

b) the results of inspections, audits, renderings and statements of accounts made by internal and external control bodies, including rendering of accounts related to previous years.

§ 1 The access to the information provided in the caput does not include information regarding research projects and scientific or technological development whose secrecy is essential to the security of society and the State.

Paragraph 2. When full access to the information is not authorized because it is partially confidential, access to the non-confidential part is guaranteed by means of a certificate, extract or copy with concealment of the part under secrecy.

Paragraph 3. The right of access to the documents or information contained therein used as the basis for the decision-making process and the administrative act shall be ensured by editing the corresponding decision-making act.

Paragraph 4 - The refusal of access to the information requested by the organs and entities referred to in art. 1, if not substantiated, will subject the responsible to disciplinary measures, in accordance with art. 32 of this Law.

§ 5 Informed of the loss of the information requested, the interested party may request the competent authority to immediately initiate an investigation to determine the disappearance of the respective documentation.

Paragraph 6. Once the hypothesis provided for in paragraph 5 of this article has been verified, the person responsible for the custody of the lost information must, within a period of 10 (ten) days, justify the fact and appoint witnesses to prove his allegation.

Article 8 It is the duty of public bodies and entities to promote, regardless of their requirements, the disclosure in a place easily accessible, within their competences, of information of collective or general interest that they produce or guarded.

§ 1o In disclosing the information referred to in the caput, shall include, at least:

I - registration of the competences and organizational structure, addresses and telephones of the respective units and hours of attendance to the public;

II - records of any transfers or transfers of financial resources;

III - records of expenditure;

IV - information concerning bidding procedures, including the respective bidding documents and results, as well as all contracts concluded;

V - general data for the monitoring of programs, actions, projects and works of organs and entities; and

VI - answers to frequently asked questions of society.

Paragraph 2. In order to comply with the provisions of the caput, public bodies and entities shall use all the legitimate means and instruments at their disposal, and the disclosure in official websites of the world wide web shall be mandatory.

§ 3o The sites referred to in § 2o shall, in the form of a regulation, meet, among others, the following requirements:

I - contain a search tool for content that allows access to information in an objective, transparent, clear and easy-to-understand language;

II - enable the recording of reports in various electronic formats, including open and non-proprietary, such as spreadsheets and text, in order to facilitate the analysis of information;

III - enable automated access by external systems in open, structured and machine-readable formats;

IV - disseminate in detail the formats used for structuring the information;

V - guarantee the authenticity and

From Access Request

Article 10. Any interested party may submit an application for access to information to the organs and entities referred to in art. 1 of this Law, by any legitimate means, and the request must contain the identification of the applicant and the specification of the information required.

§ 1o For access to information of public interest, the identification of the applicant can not contain requirements that prevent the request.

Paragraph 2. The organs and entities of the public power must make possible alternative of forwarding access requests through their official websites.

Paragraph 3 Any requirements relating to the reasons for requesting information of public interest shall be prohibited.

Article 11. The public body or entity shall authorize or grant immediate access to the available information.

Paragraph 1 - If it is not possible to grant immediate access, in the form set out in the caput, the organ or entity that receives the request shall, within a period not exceeding 20 (twenty) days:

I - to communicate the date, place and way to carry out the consultation, reproduce or obtain the certificate;

II - to indicate the reasons of fact or of right of the refusal, total or partial, of the intended access; or

III - communicate that he / she does not have the information, indicate, if known, the body or entity that holds it, or, further, refer the request to that body or entity, informing the interested party of the referral of his request for information.

§ 2 The period referred to in paragraph 1 may be extended for another 10 (ten) days, by means of an express justification, of which the applicant will be scientifically informed.

Paragraph 3. Without prejudice to the security and protection of information and compliance with the applicable legislation, the body or entity may provide means for the applicant himself to research the information he needs.

Paragraph 4 When access is not authorized because it is totally or partially confidential information, the applicant must be informed about the possibility of appeal, deadlines and conditions for its filing, and should also be given the competent authority for its consideration .

Paragraph 5. The information stored in digital format will be provided in this format, if there is consent of the applicant.

Paragraph 6 If the requested information is available to the public in printed, electronic or any other means of universal access, the applicant shall be informed in writing of the place and manner in which such information may be consulted, obtained or reproduced, which shall relieve the public body or entity of the obligation to supply it directly, unless the applicant declares that he or she does not have the means to carry out such procedures on his own.

Art. 23.  São consideradas imprescindíveis à segurança da sociedade ou do Estado e, portanto, passíveis de classificação as informações cuja divulgação ou acesso irrestrito possam: 

I - pôr em risco a defesa e a soberania nacionais ou a integridade do território nacional; 

II - prejudicar ou pôr em risco a condução de negociações ou as relações internacionais do País, ou as que tenham sido fornecidas em caráter sigiloso por outros Estados e organismos internacionais; 

III - pôr em risco a vida, a segurança ou a saúde da população; 

IV - oferecer elevado risco à estabilidade financeira, econômica ou monetária do País; 

V - prejudicar ou causar risco a planos ou operações estratégicos das Forças Armadas; 

VI - prejudicar ou causar risco a projetos de pesquisa e desenvolvimento científico ou tecnológico, assim como a sistemas, bens, instalações ou áreas de interesse estratégico nacional; 

VII - pôr em risco a segurança de instituições ou de altas autoridades nacionais ou estrangeiras e seus familiares; ou 

VIII - comprometer atividades de inteligência, bem como de investigação ou fiscalização em andamento, relacionadas com a prevenção ou repressão de infrações. 

Art. 24.  A informação em poder dos órgãos e entidades públicas, observado o seu teor e em razão de sua imprescindibilidade à segurança da sociedade ou do Estado, poderá ser classificada como ultrassecreta, secreta ou reservada. 

§ 1^o  Os prazos máximos de restrição de acesso à informação, conforme a classificação prevista no caput, vigoram a partir da data de sua produção e são os seguintes: 

I - ultrassecreta: 25 (vinte e cinco) anos; 

II - secreta: 15 (quinze) anos; e 

III - reservada: 5 (cinco) anos. 

§ 2 Information that may jeopardize the security of the President and Vice President of the Republic and their spouses and children shall be classified as confidential and remain confidential until the end of the current term of office or of the last term of office, in case of re-election.

§ 3o Alternatively to the deadlines provided for in paragraph 1, a final event of restriction of access to the occurrence of a certain event may be established, provided that it occurs before the expiry of the maximum period of classification.

§ 4. After the classification period has elapsed or the event that defines its final term has been consummated, the information will automatically become publicly accessible.

§ 5o For the classification of information in a certain degree of secrecy, the public interest of the information should be observed and the least restrictive criterion should be used, considering:

I - the severity of the risk or damage to the security of society and the State; and

II - the maximum term of restriction of access or the event that defines its final term.

Section III

Protection and Control of Sensitive Information

Article 25. It is the duty of the State to control the access and disclosure of classified information produced by its organs and entities, ensuring its protection. (Regulation)

Paragraph 1. The access, disclosure and treatment of information classified as confidential shall be restricted to persons who need to know it and who are duly accredited under the regulation, without prejudice to the attributions of public agents authorized by law.

Paragraph 2. Access to information classified as confidential creates an obligation for the person who has obtained confidentiality.

§ 3 The Regulation shall provide for procedures and measures to be adopted for the treatment of confidential information, in order to protect it against loss, unauthorized alteration, unauthorized access, transmission and disclosure.

Article 26. The public authorities shall take the necessary steps to ensure that the hierarchically subordinate personnel are aware of the rules and observe the security measures and procedures for the treatment of confidential information.

Single paragraph. The individual or private entity that, due to any relationship with the public power, carry out activities of treatment of classified information will take the necessary measures so that its employees, representatives or representatives observe the measures and procedures of security of the information resulting from the application of this one Law.

Section IV

From the Classification, Reclassification and Disqualification Procedures

Article 27. The classification of secrecy of information in the scope of the federal public administration is of competence: (Regulation)

I - in the degree of ultra-secret, of the following authorities:

a) President of the Republic;

b) Vice-President of the Republic;

c) Ministers of State and authorities with the same prerogatives;

d) Commanders of the Navy, Army and Air Force; and

e) Heads of Permanent Diplomatic and Consular Missions abroad;

II - in the degree of secrecy, of the authorities referred to in item I, of the owners of municipalities, foundations or public companies and mixed-capital companies; and

III - in the degree of reserved, of the authorities referred to in items I and II and of those who carry out functions of direction, command or leadership, level DAS 101.5 or higher, of the Group-Senior Management and Advisory, or hierarchy equivalent, according to specific regulation of each organ or entity, observing the provisions of this Law.

Paragraph 1 - The jurisdiction provided for in items I and II, as regards classification as ultra-secret and secret, may be delegated by the responsible authority to a public agent, including in a mission abroad, prohibited by subdelegation.

Paragraph 2. The classification of information in the degree of secrecy by the authorities provided for in items "d" and "e" of item I shall be ratified by the respective Ministers of State, within the term established by regulation.

Paragraph 3. The authority or other public agent that classifies information as ultra-secret shall forward the decision dealt with in art. 28 to the Joint Committee on Revaluation of Information, referred to in art. 35, within the period established by regulation.

Article 28. The classification of information in any degree of secrecy shall be formalized in a decision that shall contain at least the following elements:

I - the subject matter of the information;

II - foundation of the classification, observing the criteria established in art. 24;

III - indication of the term of secrecy, counted in years, months or days, or of the event that defines its final term, according to the limits foreseen in art. 24; and

IV - identification of the authority that classified it.

Single paragraph. The decision referred to in the caput shall be kept to the same degree of secrecy as the classified information.

Article 29. The classification of the information will be re-evaluated by the classification authority or by higher hierarchical authority, by means of challenge or ex officio, in the terms and deadlines provided for in regulation, with a view to its disqualification or to the reduction of the term of secrecy, Art. 24. (Regulation)

Paragraph 1. The regulation referred to in the caput must consider the peculiarities of information produced abroad by public authorities or agents.

Paragraph 2. In the reassessment referred to in the caput, the permanence of the reasons for confidentiality and the possibility of damages resulting from access to or disclosure of the information should be examined.

Paragraph 3. In the event of a reduction in the period of confidentiality of the information, the new term of restriction shall maintain as an initial term the date of its production.

Art. 30. The maximum authority of each organ or entity shall publish, annually, on a website available for the transmission of data and administrative information, in accordance with the regulations:

I - list of information that has been disqualified in the last 12 (twelve) months;

II - list of documents classified in each degree of secrecy, with identification for future reference;

III - statistical report containing the number of requests for information received, answered and rejected, as well as generic information about the applicants.

§ 1 The organs and entities shall keep an example of the publication provided for in the caput for public consultation at their headquarters.

Paragraph 2. The organs and entities shall keep an extract from the list of classified information, accompanied by the date, the degree of confidentiality and the reasons for classification.

Section V

Personal Information

Article 31. The processing of personal information must be done in a transparent manner and with respect to privacy, private life, honor and image of people, as well as individual freedoms and guarantees.

Paragraph 1. The personal information referred to in this article relating to privacy, privacy, honor and image:

I - shall have restricted access, regardless of classification of secrecy and for a maximum period of 100 (one hundred) years from the date of production, to legally authorized public agents and the person to whom they refer; and

II - may have authorized their disclosure or access by third parties with the legal provision or express consent of the person to whom they refer.

Paragraph 2. Anyone who gains access to the information referred to in this article will be held liable for its misuse.

Paragraph 3. The consent referred to in item II of § 1o shall not be required when the information is required:

I - prevention and medical diagnosis, when the person is physically or legally incapacitated, and for use solely and exclusively for medical treatment;

II - the accomplishment of statistics and scientific researches of evident public or general interest, provided for by law, being forbidden the identification of the person to whom the information refers;

III - compliance with a judicial order;

IV - the defense of human rights; or

V - protection of the prevailing public and general interest.

Paragraph 4. The restriction of access to information relating to private life, honor and image of person can not be invoked with the purpose of prejudicing the process of finding irregularities in which the holder of the

Paragraph 1. The restriction of access to information, due to the reassessment provided for in the caput, shall comply with the terms and conditions established in this Law.

Paragraph 2. Within the scope of the federal public administration, the revaluation provided for in the caput may be reviewed at any time by the Joint Commission for the Revaluation of Information, subject to the terms of this Law.

§ 3o As long as the revaluation period provided for in the caput has not elapsed, the classification of the information shall be maintained in accordance with the previous legislation.

Paragraph 4. Information classified as secret and ultra-secret not revalued within the period provided for in the caput shall be considered, automatically, public access.

Article 40. Within 60 (sixty) days, as of the effective date of this Law, the maximum leader of each agency or entity of the direct and indirect federal public administration shall designate authority directly subordinated to it, within the respective body or entity. entity, perform the following duties:

I - to ensure compliance with the rules regarding access to information, in an efficient and adequate manner for the purposes of this Law;

II - monitor the implementation of the provisions of this Law and submit periodic reports on compliance;

III - to recommend the indispensable measures for the implementation and improvement of the norms and procedures necessary for the correct compliance with the provisions of this Law; and

IV - to guide the respective units with regard to compliance with the provisions of this Law and its regulations.

Art. 41. The Federal Executive shall designate a federal public administration body responsible for:

I - the promotion of a national campaign to promote the culture of transparency in public administration and awareness of the fundamental right of access to information;

II - for the training of public agents with regard to the development of practices related to transparency in public administration;

III - for monitoring the application of the law in the scope of federal public administration, concentrating and consolidating the publication of statistical information related in art. 30;

IV - for forwarding to the National Congress an annual report with information regarding the implementation of this Law.

Article 42. The Executive Branch shall regulate the provisions of this Law within 180 (one hundred and eighty) days from the date of its publication.

Art. 43. Subsection VI of art. 116 of Law No. 8,122, of December 11, 1990, shall be in force with the following wording:

"Art. 116. ................................................ ...................

.................................................. ..........................................

VI - to take the irregularities which it has knowledge of due to the position to the knowledge of the superior authority or, when it is suspected of involvement, to the knowledge of another competent authority for investigation;

.................................................. ............................... "(NR)

Art. 44. Chapter IV of Title IV of Law no. 8,122, of 1990, becomes effective with the addition of the following art. 126-A:

"Art. 126-A. No server may be held civilly, criminally or administratively responsible for giving notice to the superior authority or, when it is suspected, of the other competent authority for the determination of information concerning the commission of crimes or impropriety of which it is aware, even if due to position, employment or public office. "

Article 45. It is up to the States, the Federal District and the Municipalities, in their own legislation, obeying the general norms established in this Law, to define specific rules, especially regarding the provisions in art. 9 and in Section II of Chapter III.

Art. 46. Repealed:

I - Law No. 11,111, of May 5, 2005; and

II - arts. 22 to 24 of Law No. 8,159 of January 8, 1991.

Art. 47. This Law shall enter into force 180 (one hundred and eighty) days after the date of its publication.

Brasília, November 18, 2011; 190th of Independence and 123rd of the Republic.

DILMA ROUSSEFF

José Eduardo Cardoso

Celso Luiz Nunes Amorim

Antonio de Aguiar Patriota

Miriam Belchior

Paulo Bernardo Silva

Gleisi Hoffmann

José Elito Carvalho Siqueira

Helena Chagas

Luís Inácio Lucena Adams

Jorge Hage Sobrinho



Maria do Rosário Nunes





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