by Christian F. Rosa and Bruna de O. Farias
With the General Data Protection Law (LGPD) in force since 2020, the Access to Information Law (LAI) faces new challenges, now in view of the need to reconcile the protection of personal data with public transparency. Let it be said at the outset: it is entirely possible to maintain good public management, aligned with the precepts of social oversight and privacy, provided one knows how to balance the applicable regulatory objectives in light of the rights and duties conveyed by each of these two legal instruments.
Certainly, the LGPD is relevant to public transparency actions, as it provides for rules applicable to both the private and public sectors, governing when and how the processing of personal data is acceptable and lawful. However, it is no less true that the LAI already contained rules on the processing of personal information within its scope.
The LAI expressly requires the Government to ensure the protection of confidential and personal information. In the transparent management of this data, the Administration was also already bound by the duty to respect people’s intimacy, private life, honor and image, as well as individual freedoms and guarantees. Indeed, with Constitutional Amendment No. 115, the duty to respect the right to protection of personal data was definitively consolidated in this list of individual guarantees, having already been recognized as an autonomous fundamental guarantee by the case law of the Federal Supreme Court (ADI 6387 MC).
Thus, on the one hand, the LGPD merely reinforced the protection of the right to privacy, already protected by the Access to Information Law. On the other hand, contrary to what one might think, the new Personal Data Protection Law came to require a whole new field of greater transparency from public entities, thereby reinforcing the guidelines of the Access to Information Law.
This is because it fell to the LGPD to impose on the Government a duty of transparency about how it processes the personal data under its control. In other words, while under the LAI citizens gain the means to access what data is stored by the Administration, with the LGPD citizens add to the set of subjective rights they hold the right to know the legal basis, purpose, procedures and practices under which this data is processed.
The LGPD itself contains a set of rules applicable only to the processing of personal data by the Government, which are subject to legitimate questioning – as was the case with the LAI, in force for so many years. In this positive sense, the LGPD therefore complements the LAI, as it increases the Government’s accountability – responsibility and engagement – for the sound management of information, in this case personal data.
