O princípio da transparência na administração pública: a transparência obrigatória, a transparência permitida e a transparência proibida


IBICT - Instituto Brasileiro de Informação em Ciência e Tecnologia




Until the Republic Constitution of 1988, the administrative transparency was not actually protected in Brazil. Through its article 5, XXXIII, the right to access the public information was elevated to the status of a fundamental right, but only with the Complementary Act 131 from 2009 and the Information Access Act (Federal Law 12.527 from 2011), such standard finally received a due treatment. We defined it as a legal standard based on republican standard, applicable as extended as possible in a concrete case, taking into consideration the potential restrictions related to the secret hypothesis requested by reason of some public and private interests constitutionally protected, reaching all and any information produced and/or held by Public Administration or who else in your name, characterized in its formal aspect by the accessibility of the information in favor of any interested person, independently of motivation, through the passive availability and a effective communication ex-officio, and, finally, through its material aspect characterized by clarity and organization in the contend of the information disclosed, as a way to make it comprehensible to any person. The transparency and publicity are usually confounded by the legal doctrine, but the publicity has a much lower range area and works as a transparency tool, in its formal aspect and only in its active modality. Thus, formal transparency in its passive modality cannot be confounded with publicity. We also stated that transparency is, prima facie, mandatory, but can also be prohibited in some secret cases required by public and private interests. And also may be allowed, by State (in case of discretion) and by the private, through its written consent. Finally, our understanding is for the possibility of solving conflicts between administrative transparency and public and private interests through the examination of the proportionality considered in its strict meaning


direito princípios jurídicos transparência administração pública acesso à informação legal standards transparency public administration information access

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