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Access to Info Window | À Pública

publicavictorious

Pública —  an investigative reporting collective sustained by Omidyar, Ford Foundation, Open Society (Soros) and, experimentally, crowd funding — celebrates a legal victory notable for its relatively swift path through the Dickensian hallways of Sambodian justice.

The Brazilian version of the FOIA Act was partially enacted in December 2014, and is already in use. Cases filed citing its provisions will be intriguing to watch.

Brazil now has two such journalistic nonprofits, factoring in Abraji, which supported by and coordinates with a large number of domestic press freedom groups.

The authors allow themselves a bit of dramatic license in writing the lede.

The black box that is Sabesp is about to be opened

On January 27, the state comptroller-general, Gustavo Ungaro, granted an application by this project, ordering the production of the Company’s firm demand contracts, based on the Public Access to Information law (LAI) passed in December of last year.

The firm-demand contracts were signed between Sabesp and companies that consume more than 500 cubic meters of water per month. Adopted in 2002, they oblige the company to consume a minimum amount of water in order to obtain discounts of up to 40%. The companies must also abandon other sources of water in a show of “fidelity” to Sabesp.

There exist more than 500 contracts of this kind with companies like Ford Brasil, Jockey Club Paulista and General Motors do Brasil; together, they consume 1.9 million cubic meters of water per month. The provision making it obligatory to consume the entire was not suspended by the government until March of last year, when the water crisis was already affecting the state.

Sabesp, however, on two occasions refused our request for access to these contracts, alleging that they are protected by the same rule that guarantees the privacy of personal information. The company also argued that the publication of the contracts would represent “a strategic risk to the company.”

The comptroller, however, ruled in our favor: “The release of contracts of the type known as firm demand … will enable society to learn of the Company’s modus operandi da Sabesp as a provider of  public sanitation services,” according to the technical ruling by the Department of Legal and Disciplinary Affairs of the CGA.

CGA reiterated that Sabesp is subject to the LAI, given that “mixed economy” — public-private –companies like Sabesp are cited in the first paragraph of the applicable law. “The clear language of this provision dispenses further questioning of Sabesp’s duty to follow the rules defined by the LAI, for which reason it is recommended that any argument to the contrary be rejected,” the ruling said.

Personal privacy does not apply to corporations

According to the comptroller’s interpretation, the right of privacy as it applies to the privacy of personal information is restricted to “identified or indentifiable,” … “it being improper to apply this hypothesis in the case of information about legal persons.”

For this reason, only personal information can be denied in an LAI proceeding.

The decision is based on an analysis by the federal comptroller-general (CGU) in June 2014 in connection with the refusal of [a federal cabinet office] to produce invoices for automotive goods and services in 2011 and 2013: “Law 12527/2011 does not extend the right of natural persons to cover legal persons,” the CGU found.

The opinion prepared by the state comptroller is cautious in its approach to these two arguments in light of to what extent society has a right to information about information regarding services rendered by Sabesp. “On one hand, Sabesp, as a service provider, takes care to respect the information of its contractors. On the other hand, the self-evident interest of society in the operations of a mixed-economy, partially state-run company is conducting itself in the water market. “There is no denying a collective interest involving the requested information, both because it involves the activities of a public-private entity and because the request has to do with the management of a public asset: the water supply.”

Comptroller Gustavo Ungaro supports the conclusion of the technical opinion, recalling that both the LAI and State Decree 58,052/2012, which regulates the LAI in the state, determined the public right to the information stored by the public administration as the rule, with exceptions permitted only when justified and supported by jurisprudence.

This is not the case with the firm demand contracts, since these lack clauses protected by law or by judicial ruling. “There is also no evidence that a trade secret is at risk in this case,” the comptroller said.

Sabesp was notified on the same day. It remains to be seen whether it will comply.

Karina Quintanilha of Artigo 19, an NGO that defends the right to information, found the decision helpful, in that it reinforces the human right to information and rules out any doubts about Sabesp and the LAI. “It comes an important precedent at a time when it is essential to guarantee transparency over everything having to do with the water supply.”

Sabesp now has 30 days to turn over the contracts, which will be analysed by a team from Agência Pública working on an article.

“We hope this decision will drive a change of culture inside Sabesp in order to respect the LAI, and that such action becomes the rule, not the exception.”

tive sustained by Omidyar, Ford Foundation, Open Society (Soros) and, experimentally, crowd funding — celebrates a legal victory notable for its relatively swift path through the Dickensian hallways of Sambodian justice.

The Brazilian version of the FOIA Act was enacted in December 2014, this case was settled in a lower court two months later, and what must be a vast accumulation of cases filed citing its provisions will be intriguing to watch.

Brazil now has two such journalistic nonprofits, factoring in Abraji, supported by and coordinating with a large number of domestic press freedom groups.

The authors allow themselves a bit of drama in writing the lede.

The black box that is Sabesp is about to be opened.

On January 27, the state comptroller-general, Gustavo Ungaro, granted an application by this project, ordering the production of the Company’s firm demand contracts, based on the Public Access to Information law (LAI) passed in December of last year.

The firm-demand contracts were signed between Sabesp and companies that consume more than 500 cubic meters of water per month. Adopted in 2002, they oblige the company to consume a minimum amount of water in order to obtain discounts of up to 40%. The companies must also abandon other sources of water in a show of “fidelity” to Sabesp.

There exist more than 500 contracts of this kind with companies like Ford Brasil, Jockey Club Paulista and General Motors do Brasil; together, they consumer 1.9 million cubic meters of water per month. The provision making it obligatory to consume the entire was not suspended by the government until March of last year, when the water crisis was already affecting the state.

Sabesp, however, on two occasions refused our request for access to these contracts, alleging that they are protected by the same rule that guarantees the privacy of personal information. The company also argued that the publication of the contracts would represent “a strategic risk to the company.”

The comptroller, however, ruled in our favor: “The release of contracts of the type known as firm demand … will enable society to learn of the Company’s modus operandi da Sabesp as a provider of  public sanitation services,” according to the technical ruling by the Department of Legal and Disciplinary Affairs of the CGA.

CGA reiterated that Sabesp is subject to the LAI, given that “mixed economy” — public-private –companies like Sabesp are cited in the first paragraph of the applicable law. “The clear language of this provision dispenses further questioning of Sabesp’s duty to follow the rules defined by the LAI, for which reason it is recommended that any argument to the contrary be rejected,” the ruling said.

Personal privacy does not apply to corporations

According to the comptroller’s interpretation, the right of privacy as it applies to the privacy of personal information is restricted to “identified or indentifiable,” … “it being improper to apply this hypothesis in the case of information about legal persons.”

For this reason, only personal information can be denied in an LAI proceeding.

The decision is based on an analysis by the federal comptroller-general (CGU) in June 2014 in connection with the refusal of [a federal cabinet office] to produce invoices for automotive goods and services in 2011 and 2013: “Law 12527/2011 does not extend the right of natural persons to cover legal persons,” the CGU found.

The opinion prepared by the state comptroller is cautious in its approach to these two arguments in light of to what extent society has a right to information about information regarding services rendered by Sabesp. “On one hand, Sabesp, as a service provider, takes care to respect the information of its contractors. On the other hand, the self-evident interest of society in the operations of a mixed-economy, partially state-run company is conducting itself in the water market. “There is no denying a collective interest involving the requested information, both because it involves the activities of a public-private entity and because the request has to do with the management of a public asset: the water supply.”

Comptroller Gustavo Ungaro supports the conclusion of the technical opinion, recalling that both the LAI and State Decree 58,052/2012, which regulates the LAI in the state, determined the public right to the information stored by the public administration as the rule, with exceptions permitted only when justified and supported by jurisprudence.

This is not the case with the firm demand contracts, since these lack clauses protected by law or by judicial ruling. “There is also no evidence that a trade secret is at risk in this case,” the comptroller said.

Sabesp was notified on the same day. It remains to be seen whether it will comply.

Karina Quintanilha of Artigo 19, an NGO that defends the right to information, found the decision helpful, in that it reinforces the human right to information and rules out any doubts about Sabesp and the LAI. “It comes an important precedent at a time when it is essential to guarantee transparency over everything having to do with the water supply.”

Sabesp now has 30 days to turn over the contracts, which will be analysed by a team from Agência Pública working on an article.

“We hope this decision will drive a change of culture inside Sabesp in order to respect the LAI, and that such action becomes the rule, not the exception.”

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