GIUSEPPE GIAMUNDO NETO – Public law specialist (infrastructure, oversight and regulation). Master’s degree in State Law from USP and partner at Giamundo Neto Advogados.

*To cite this article: GIAMUNDO NETO, Giuseppe. Quem não é parte pode acessar processo no Tribunal de Contas? Portal Jota. 09/17/2019. Available at: https://www.jota.info/opiniao-e-analise/artigos/quem-nao-e-parte-pode-acessar-processo-em-tramite-no-tribunal-de-contas-15102019. Accessed on: mm/dd/yyyy.

The Federal Constitution adopted the principle of maximum state publicity, treating it as a fundamental right of citizens. Under article 5, XXXIII, everyone is guaranteed the “right to receive from public bodies information of private interest to them, or of collective or general interest, which shall be provided within the period established by law”. And the authority or official who fails to provide such access may be held liable. The only exception is information “whose secrecy is essential to the security of society and the State”.

The breadth that the Constitution gives to citizens’ right of access to information is immediately apparent. Any information held by a public body may be accessed, provided it is of collective interest or of private interest to the person requesting it. On the other hand, the concept of a public body is also very broad, encompassing any State unit with a set of powers1. Only information that is confidential for reasons of State and societal security is protected.

Other constitutional provisions highlight the duty of publicity that must guide State activity. Examples include article 5, LXXII, which provides for habeas data to ensure “knowledge of information relating to the petitioner contained in records or databases of government entities or entities of a public nature”, article 216, §2, which provides that the public administration is responsible for “managing government documentation and taking steps to make it available for consultation by all who need it”, and article 5, XXXIV, “b”, which guarantees everyone, regardless of payment of fees, “the obtaining of certificates from public offices, for the defense of rights and clarification of situations of personal interest”.

Article 5 of the Constitution specifies in item LX the publicity that must apply to procedural acts. According to this provision, “the law may only restrict the publicity of procedural acts when the protection of privacy or the social interest so requires”. Interpreting it a contrario sensu, it follows that procedural acts will always be public. They will only cease to be so if the law so determines.

And the law, in this case, for the purpose of restricting publicity, must be limited to protecting privacy or the social interest, taking into account the harm that disclosure of the procedural act may potentially cause to the parties involved, third parties or the community.

Another aspect to note is that the Federal Constitution, in establishing the publicity of procedural acts without making any distinction, stresses the duty to observe this principle in any type of proceeding, whether judicial or administrative. In judicial proceedings, in addition, article 93, IX, of the Federal Constitution provides that “all judgments of the bodies of the Judiciary shall be public, and all decisions shall be reasoned, under penalty of nullity, and the law may, if the public interest so requires, limit attendance at certain acts to the parties themselves and their lawyers, or only to the latter”.

And for administrative proceedings, the duty is reinforced by the caput of article 37 of the Federal Constitution, which requires compliance with the principle of publicity, among others, in any and all administrative activities of the Branches of the Federal Government, States, Federal District and Municipalities.

Although the primary recipients of knowledge of procedural acts are the parties and their lawyers, to whom no restriction can be imposed, not least to enable the exercise of full defense and adversarial proceedings2, the possibility of accessing procedural acts transcends the interests of the parties and stands as a right of society as a whole.

Thus, third parties, and not only the parties to the administrative proceeding, may also access the case file, including by consulting it at the registry and making copies, given the guarantees set out in article 5, items XXXIII and LX, of the Federal Constitution. Restricting third parties’ consultation of procedural acts is only warranted if the social interest or the right to privacy of those involved in the proceedings is at stake.

The publicity of procedural acts is therefore the rule. Confidentiality should only be ordered in cases where restrictions are justified by the interests under discussion.

In this regard, Law 12,527/2011 (Access to Information Law), in regulating article 5, XXXIII, of the Federal Constitution, enabled the expansion of social oversight of public management through access to information and documents produced, managed and kept by the State.

That law provided for the possibility of partially restricting disclosure where it is necessary to protect information and documents that would compromise the security of society or the State (art. 23), and it does not exclude other legal cases of confidentiality and secrecy of proceedings, nor cases of trade secrets (art. 22). In all cases of confidential information, however, access to the non-confidential part is guaranteed through a certificate, extract or copy with the confidential part redacted.

As for external and internal oversight bodies, article 7, VII, b, of Law 12,527/2011 guaranteed access to the results of inspections, audits, accounts rendering and accounts reviews carried out by them, including accounts for previous fiscal years.

The question, in light of this provision and §3 of article 7 (“the right of access to documents or the information they contain used as the basis for decision-making and the administrative act shall be ensured upon issuance of the respective decision”), is whether a third party may access an administrative proceeding pending before the Court of Accounts before its merits are decided.

There are Federal Court of Accounts decisions holding that this right may only be exercised after the outcome of the external oversight proceeding. Thus, the right of access to information would only arise once a decision on the merits has been issued3.

On the other hand, by contrast, Judgment 9062/2017-First Chamber4 deserves mention, with Justice Bruno Dantas as reporting justice, in which it was accepted that access to case files is not an exclusive prerogative of the parties, “but a guarantee of citizens, as established by the recent Law 12,527/2011, which regulates the access to information provided for in articles 5, item XXXIII, and 37, § 3, item II, of the 1988 Federal Constitution”. See:

(…) 21. The aforementioned Access to Information Law (LAI) is guided by a set of standards based on the best international criteria and practices, among which the following principles and guidelines stand out: maximum disclosure, no requirement to state reasons, limited exceptions and proactive transparency.

22. It is worth noting that the right of access to information is not to be confused with the right of petition, which is restricted to the parties, since procedural submissions by third parties without legal interest are not admitted, and proper admission to the proceedings is essential.

23. The LAI restricted access only to confidential information (because it is essential to the security of society and the State) and to personal information (relating to the privacy, private life, honor and image of natural persons), and it expressly does not exclude other legal cases of confidentiality (such as, for example, complaints submitted to the TCU, under art. 55 of Law 8,443/1992) and secrecy of proceedings or trade secrets.

24. In other words, it seems to me that the filter limiting the visibility of the proceeding is the degree of confidentiality applied to it, not party status, at the risk of unduly restricting access to the Court’s proceedings and curtailing the fundamental right the LAI seeks to safeguard. In short, I see society’s access to all information produced or held by the government as not only possible but desirable.

25. In the present case, I note that the proceeding is not classified as confidential. And even in cases where there may be a confidential document within a non-confidential proceeding, art. 27, § 2, of TCU Resolution 249/2012 applies: In the case of partially confidential information, access to the non-confidential part is ensured through a certificate, extract or copy with the confidential part redacted.

26. Thus, considering the guarantees of access to information provided for in arts. 5, items XXXIII and LX, and 37, § 3, item II, of the 1988 Federal Constitution, in Law 12,527/2011 and in TCU Resolution 249/2012, I find that the requests for copies should be granted.

The position taken by the TCU in the decision transcribed above seems to us the one that best fits what the Federal Constitution provides regarding access to information and the publicity of procedural acts.

Limitation should only occur in cases where a duty of confidentiality exists. The restrictive interpretation of the Access to Information Law, which makes it impossible to access an administrative proceeding at the Court of Accounts before its conclusion, is inconsistent with the guidelines set out in art. 5, items XXXIII and LX, of the Constitution.

The constitutional provisions mentioned only allow information or procedural acts to be restricted when their disclosure could compromise the social interest or the right to privacy, or when secrecy is essential to the security of society and the State. Any limitation beyond these cases, even if implemented by law, must be considered unconstitutional.

Note that the TCU Organic Law (LOTCU) places no restriction on granting third parties access to administrative proceedings at the Court of Accounts. It only does so when dealing with proceedings arising from complaints. Such complaints are confidential until the Court issues a final decision (art. 55). The content of the complaint, as well as the procedural acts, may therefore only be consulted by third parties after the proceedings have concluded with a final decision.

The LOTCU’s purpose in preventing access to complaint proceedings before the Court of Accounts has ruled on the merits is noble and commendable. It seeks to avoid exposing the person complained against and to protect their image before the facts attributed to them are confirmed. The person complained against — invariably a public servant — would otherwise be subject, for example, to political and media exploitation arising from the existence of the complaint, in addition to potentially having their reputation unfairly damaged.

Even so, it is important to note that a complaint will not always involve situations in which the complainant accuses a given public official of irregularities that put their image and reputation at risk, cases in which confidentiality is justified. This is the case, for example, of a complaint or representation involving acts of the Administration in the course of a tender: a bidder or even a citizen, believing that a given tender notice is flawed, reports this to the Court of Accounts so that it may take note and examine the regularity of the tender.

In this very common scenario, third-party access to the complaint, as well as to any statement produced by the Court of Accounts’ audit team before the matter is decided, in no way compromises the rights and guarantees of others. The tender procedure and the documents and information produced in its course were already public before the complaint, including any challenges and appeals filed by interested parties. It is therefore illogical, as well as contrary to art. 5, items XXXIII and LX, of the Federal Constitution, to prohibit access to case files dealing with such matters.

The same applies to audits involving the performance of public contracts. The Court of Accounts’ oversight examines the legality, legitimacy and economy of such contracts. As a rule, nothing under discussion is confidential. In addition to the Access to Information Law, Law 8,666/93 itself, which governs administrative contracts, guarantees any citizen access to the quantities and unit prices of a given work carried out (art. 7, §8). Unless there is something in the case file that could compromise the individual rights of others, or one of the confidentiality cases applies, there is no justification for denying access.

Note that the same discussions taking place in a proceeding at the Court of Accounts may be held before the Judiciary, without any restriction on publicity being imposed there. Supposing that the person who reported the flaw in the tender notice also filed a lawsuit in parallel to remedy the irregularities found (e.g., a citizen’s action or writ of mandamus), the respective case pending before the Judiciary, containing the same documents, subject matter and content as the proceeding at the Court of Accounts, will be freely accessible to any citizen from the moment it is filed. The same would not be true of the administrative proceeding, if the view prevails that it only becomes public upon its conclusion — which would not be justifiable.

It is worth noting that the 2015 Code of Civil Procedure establishes as a rule that “procedural acts are public”, except those that are sealed.

Among these, those that are compatible with Court of Accounts administrative proceedings include cases where the public or social interest so requires and those containing data protected by the constitutional right to privacy (art. 189, I and III). In these cases, the right to consult the case file and request certificates of its acts is restricted to the parties and their attorneys (art. 189, §1).

The Court of Accounts, therefore, even when dealing with a complaint proceeding — in which case there is a specific LOTCU rule limiting access to the proceeding until its final judgment (art. 55) — or any other type of proceeding, must examine the specific case to determine whether confidentiality is justified.

If it fails to do so, denying access indiscriminately — as seen in the decisions and internal rules extending this rule to all proceedings pending before the Court, not only complaints — it will be violating a guarantee elevated to the status of a fundamental right by the Federal Constitution (XXXIII and LX).

———————————-