Brazil election rules trigger public data blackout

RIO DE JANEIRO (CN) — Mexican researcher Adriana Dennise Rodríguez Blanco was almost done with a study on how Brazil’s health sector is adapting to climate change when a key government source became inaccessible.On July 16, she tried to consult Brazil’s 2024-2035 Climate Plan on the Environment Ministry’s website but found the document blocked. Rodríguez Blanco, a research collaborator at the University of Brasília, also searched the websites of the Health Ministry and the Ministry of Science, Technology and Innovation. International repositories redirected her to the same official page, which displayed a “restricted content” message.The document was taken down during Brazil’s electoral blackout period, when public agencies must restrict government advertising to prevent incumbents from using official communications to benefit their campaigns. Under Law 9,504/1997, which governs Brazilian elections, the advertising ban takes effect three months before voting.This year, the first round of elections for president, governors, senators and federal and state lawmakers will take place Oct. 4.Since July 4, official websites and channels have been required to remove names, slogans, symbols and other elements that identify officials or administrations with offices on the ballot.But regulations issued by Brazil’s Superior Electoral Court require websites to retain information covered by Law 12,527/2011, the country’s Access to Information Law. That includes records of spending, transfers of public funds, procurement proceedings and contracts, as well as data used to track government programs, projects, public works and other actions. Agencies must also maintain an online channel for access-to-information requests.“I knew about the electoral blackout, but as a foreigner, I had not realized that a logo on an official document could be viewed as ‘electoral advertising,’” Rodríguez Blanco said.She eventually got the plan from a colleague who had downloaded it shortly before the blackout began. Its unavailability nevertheless temporarily delayed the paper she was writing.“If I had not obtained it, this would have affected the project’s final deliverables, which could have had negative repercussions for our reporting to the National Council for Scientific and Technological Development,” Rodríguez Blanco said.She considered filing a request under the Access to Information Law but decided the wait would not work with her paper’s deadline. Agencies have up to 20 days to respond under the law and may extend the deadline by another 10 days.Rodríguez Blanco was not the only person who had to rely on copies saved by colleagues.In Goiânia, environmental analyst Níckolas Castro Santana tried to access resolutions issued by the National Committee for Integrated Fire Management, which is tied to the Environment Ministry. The documents had been updated several times, but the final versions were blocked, while the texts available in Brazil’s official gazette did not incorporate the most recent changes.To determine which rules were in effect, Santana searched third-party websites and requested copies from colleagues at other agencies. He did not file an access-to-information request.In Fortaleza, teacher Amadeusa Correia Batista also had to find alternative sources after booklets and other materials from the Tourism Ministry and Embratur, Brazil’s tourism promotion agency, became unavailable. She used the materials to plan classes for a new technical program for tour guides and turned to academic publications, industry materials and news reports.Juliana Sakai, executive director of Transparência Brasil, a nonprofit that monitors government transparency and integrity, said the problem dates back at least to the 2022 elections.“We have election law that prohibits advertising and can be enforced very effectively because candidates can bring these complaints before the electoral courts,” Sakai said. “But because election law is enforced so vigorously, transparency law ends up being violated. The issue is which law is more strictly enforced.”Sakai said the removals result both from fear of electoral penalties and agencies’ lack of planning. Documents are published with government logos and slogans without alternative versions for the election period. When the blackout begins, agencies remove entire pages and files even when deleting the elements associated with the administration would be enough.That fear also leads officials to restrict content beyond what the law requires, Sakai said. In some cases, entire social media profiles are taken down, leaving people without information about public services, including healthcare.Transparência Brasil submitted proposals to electoral authorities in 2024 and again this year to clarify the rules and give officials greater legal certainty without compromising access to information. Sakai said electoral authorities adopted few of them.“In effect, electoral authorities are being informed that election law is harming government transparency and have not acted to provide greater consistency and legal certainty for public officials,” Sakai said.Rodrigo Borges Valadão, a Rio de Janeiro state attorney who holds a doctorate in public law, began investigating the issue after seeing complaints from researchers on social media. Valadão said the blackout was not caused by a technical or operational failure but by the interpretation of election rules.Valadão said a rule intended to preserve equality among candidates had instead restricted access to information voters need to evaluate governments. Valadão added that agencies had confused a ban on government advertising with a suspension of access to public data.“The pattern is always the same: When in doubt, suppress everything,” Valadão said.Valadão’s review found that Brazil’s National Archives had restricted access to news published before July 3, while Brasil Participativo, a federal platform where citizens can contribute to government policies, hid completed public consultation processes.Some states announced they would suspend government websites and social media accounts until Oct. 25, and Empresa Brasil de Comunicação, a state-owned media company, removed about 146,000 news stories, according to Valadão.Valadão said the division of authority creates an enforcement imbalance. Electoral courts can directly investigate and punish prohibited government advertising, while the unlawful removal of information must be challenged through administrative appeals and may be reviewed by the Office of the Comptroller General, audit courts and public prosecutors.“Because of this arrangement, officials are much less likely to face sanctions for violating transparency requirements than for committing an electoral violation,” Valadão said.Valadão added the restrictions could create gaps in the institutional record because they can last nearly four months and recur every two years under Brazil’s election calendar.“Public policy oversight depends on continuity of information. Periodic interruptions erode that continuity,” Valadão said. “There is a perverse irony: Information essential to the proper functioning of the democratic process becomes unavailable precisely when it is needed most.”Fernando Neisser, a lawyer and member of Brazil’s Electoral and Political Law Academy, said the restrictions have been interpreted more rigidly with each election. He thinks the shift does not necessarily reflect a tougher approach by electoral courts but rather the preventive posture of federal, state and municipal government lawyers.Neisser added that the law does not draw a clear line between government advertising and informational content.“The ability to request a document under access-to-information law does not replace an obligation to keep it proactively available,” Neisser said.In response to a request for clarification about the criteria used to distinguish government advertising from technical information, the Superior Electoral Court sent links to the Elections Law and the 2026 election calendar. The court said it does not interpret electoral rules for outside parties and recommended consulting an election law specialist.The Office of the Comptroller General and the presidential communications office, which is responsible for standardizing federal government communications, did not respond to requests for comment.Neisser said the law needs to update its definition of government advertising to account for how websites and social media operate.“Erasing institutional memory, which can even prevent the press from properly scrutinizing a public agency during the election period because everything is taken down, strikes me as disproportionate,” Neisser said. “That does not contribute to a fairer election. The law needs a clearer definition.”Courthouse News reporter Marília Marasciulo is based in Brazil.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads