Access to public information, in accordance with the constitutional principle of publicity (article 37 of the Brazilian Federal Constitution of 88), is strengthened by the Access to Information Law (LAI), enshrining transparency as a republican rule. However, in 2018, the Brazilian legal system adopted the LGPD (Brazilian General Data Protection Law) regarding personal data and privacy, culminating in the enactment of Constitutional Amendment 215, which expressly included the fundamental right to the protection of personal data in item LXXIX of article 5.
During that same period, the Supreme Federal Court, in five Direct Actions of Unconstitutionality filed by the Federal Council of the Brazilian Bar Association – OAB (ADI 6387), the Brazilian Social Democracy Party – PSDB (ADI 6388), the Brazilian Socialist Party – PSB (ADI 6389), the Socialism and Liberty Party – PSOL (ADI 6390), and the Communist Party of Brazil (ADI 6393), recognized both the fundamental right to the protection of personal data and the right to informational self-determination, precisely in relation to the State, circumstances in which limits were imposed on state action.
In this context, coupled with various pronouncements from Courts of Accounts, such as the TCE of Rio Grande do Sul, the protection of personal data seems, at first glance, to clash with the content of the LAI (Law on Access to Information). This occurs because they supposedly move in opposite directions, since the transparency of the LAI seeks to reveal information to allow social control and oversight of public power, while the LGPD (Brazilian General Data Protection Law) and other regulations on the protection of personal data and privacy impose limits on the exposure of citizens' personal data. However, it is important that the LGPD and the LAI meet at the point of equilibrium of fundamental rights, from a constitutional perspective.
The Access to Information Law, in effect since 2011, establishes the basis for more transparent public management, allowing access, as a rule, to government information of collective interest, including information related to legal entities. Furthermore, article 5, item LXXIX of the Brazilian Federal Constitution and the LGPD (Brazilian General Data Protection Law) also regulate the legal obligation of the controller, even if a public authority, to only process personal data in accordance with these regulations. Thus, the LGPD, in addition to being later, has a special character when the subject is the protection of personal data (LIDB, as amended by Law 12.376/2010).
This apparent conflict between transparency and privacy is, in fact, a dialogue between norms. Article 5, item LXXIX, of the Federal Constitution ensures the protection of personal data as a fundamental right, reinforcing that any data processing, especially by the public authorities, must be conducted with respect to the principles of necessity, purpose, and adequacy (Article 23 of the LGPD), since both rights must coexist harmoniously, without one excluding the other, as the CGU has already stated, although there is partial disagreement regarding the foundations, at the end of statement 04/2022 according to which "the LAI, Law No. 14.129/2021 (Digital Government Law) and Law No. 13.709/2018 (General Law on the Protection of Personal Data – LGPD) are systematically compatible with each other and harmonize the fundamental rights of access to information, privacy, and protection of personal data, with no antinomy between their provisions".
This balance between transparency and privacy stems from proportionality, in the sense that any limitation of a right must be justified, necessary, and appropriate. The disclosure of public information, therefore, must be done responsibly, otherwise the maximum effectiveness of fundamental rights is violated, since both transparency and the protection of personal data must be promoted, without one becoming an unjustified obstacle to the other.
In fact, the LAI (Brazilian Access to Information Law) itself already provides, in its article 31, restrictions on access to information that may compromise privacy. The LGPD (Brazilian General Data Protection Law) and, especially, item LXXIX of article 5 of the Brazilian Federal Constitution of 88, reinforces this protection, ensuring that data subjects have, whenever possible, control over their data. The balance between transparency and privacy is manifested in the need for control measures that guarantee data security without compromising access to information of public interest.
Therefore, the dialogue between the LGPD (Brazilian General Data Protection Law) and the LAI (Brazilian Access to Information Law) is an example of how fundamental rights should coexist harmoniously. Transparency and privacy are not opposing forces, but rather rights in balance, promoting a more just, secure, and transparent State. This is an ongoing but essential challenge for the full realization of fundamental rights in Brazil.
Want to know more about LAI? Read our article. another text on the subject.
