74
3. Normative Framework
195. The right to access to information is enshrined in Article 5 of the Federal
Constitution of 1988287 and is regulated, inter alia, by the following decrees and
laws: a) Law No. 8.159, of 1991, which regulates the national policy of public and
private archives, access and restrictions to public documents, among other
orders;288 b) Decree No. 2.134, of 1997, which regulates Article 23 of the Law
No. 8.159, on the categorization of public secret documents;289 c) Decree No.
4.553, of 2002, which regulates the protection of data, information, documents,
and restricted material, concerning to the security of the society and of the State
in Federal Public Administration forum;290 d) Decree No. 5.301, of 2004, which
created the Commission for the Investigation and Analysis of Confidential
Information;291 e) Law No. 11.111, of 2005, which introduced the possibility of
permanent confidentiality of official records classified as ultra-secretive,292 and f)
Decree No. 5.584, of 2005, which regulates the hand over to the National Archive
of documents under custody of the Brazilian Intelligence Agency (ABIN), and
provides for the application of the restrictions enshrined in Decree No. 4.553.293
C. Right to freedom of thought and expression
196. The Court has established that, pursuant to the protection offered by the
American Convention, the right to freedom of thought and expression consists of
“not only the right and freedom to express ones own opinion, but also of the right
and freedom to seek, receive, and impart information and ideas of all kinds.”294
Like the American Convention, other international human rights instruments,
such as the Universal Declaration of Human Rights and the International
287
El Article 5, subsection XXXIII, of the Federal Constitution establishes that “all have access to
receive, from public institutions, public information of their particular interest or of a collective or general
interest, those of which shall be offered in the legal period, under penalty of responsibility, except for
those whose confidentiality is necessary for the safety of society and of the State” (case file of annexes to
the final written arguments of the State, tome I, annex 4, folio 8751).
288
Cf. Law No. 8.159 of January 8, 1991 (case file of annexes to the final written arguments of
the State, tome I, annex 14, folios 9062 to 9065).
289
Cf. Decree No. 2.134 of January 24, 1997 (case file of annexes to the application, tome I,
annex 3, folios 16 to 21).
290
Cf. Decree No. 4.553 of December 27, 2002 (case file of annexes to the final written
arguments of the State, tome I, annex 16, folios 9070 to 9082).
291
Cf. Decree No. 5.301 of December 9, 2004 (case file of annexes to the final written
arguments of the State, tome I, annex 17, folios 9084 to 9086).
292
Cf. Law No. 11.111, of May 5, 2005 (case file of annexes to the final written arguments of
the State, tome I, annex 15, folios 9067 and 9068).
293
Cf. Decree No. 5.584 of November 18, 2005 (case file of the answer to the application, tome
I, annex 2, folios 5539 and 5540).
294
Cf. Compulsory Membership in an Association Prescribed by Law for the Practice of
Journalism (Arts. 13 and 29 American Convention on Human Rights). Advisory Opinion OC-5/85 of
November 13, 1985. Series A No. 5, para. 30; Case of López Álvarez v. Honduras. Merits, Reparations
and Costs. Judgment of February 1, 2006. Series C No. 141, para. 163, and Case of Claude Reyes et
al. v. Chile. Merits, Reparations and Costs. Judgment of September 19, 2006. Series C No. 151, para.
76.
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