The legal regime of classified information in Brazil: theoretical and empirical problems and adequacy with a democratic constitutional order

Abstract

Freedom of Information laws are governance tools aimed at promoting government transparency, increasing public participation in government activity, and enhancing government trust. Nevertheless, do these laws enable the disclosure of sensitive documents? This article analyzes the legal regime of classified information and its practice in the Brazilian federal executive agencies, discussing the regime’s compatibility with the country’s current democratic system. The research adopts mixed methods based on analysis of an exploratory set of appeals to information requests, selecting cases for qualitative analysis. We argue that the legal regime of classifying information is not subject to effective social or horizontal accountability. This article has two contributions to contemporary discussions regarding public transparency. From a theoretical point of view, the study demonstrates that the information classification system imposes obstacles to the general rule stating that democracies must allow informed participation of people in the political process. From an empirical perspective, the article demonstrates that the lack of accountability mechanisms can lead public agencies to overclassify public information. In conclusion, we suggest the need to rethink the very existence of a legal regime of classified information due to its inherent problems.