QUALIFIED TRANSPARENCY IN MIXED ECONOMY COMPANIES: THE COMPATIBILITY BETWEEN THE LAI, THE STATE-OWNED ENTERPRISES STATUTE, AND EVALUATION SYSTEMS

Abstract

Public transparency constitutes an essential instrument of social control and integrity of the Public Administration. Its application to state-owned enterprises, however, presents particularities due to the hybrid legal regime of these entities, which are subject to duties of publicity and governance, but may also operate in a competitive environment or develop economic, technological, and innovative activities involving strategic information. This article examines the relationship between Law No. 12.527/2011 — Access to Information Law —, Decree No. 7.724/2012, and Law No. 13.303/2016 — Statute of State-Owned Enterprises —, with attention to the application, within the scope of the Court of Auditors of the State of Piauí, of criteria related to the National Public Transparency Program and the booklet elaborated at the national level by the Association of Members of the Court of Auditors of Brazil. The research problem consists of verifying whether the application of uniform criteria to bodies of the Direct Administration and to state-owned enterprises, without adequate consideration of confidentiality scenarios and without sufficient mechanisms for partial or negative responses justified, may produce distorted assessments of institutional transparency. The research is qualitative, exploratory, and analytical, developed through bibliographic research, legislative analysis, and document analysis. It is argued that the transparency of state-owned enterprises should be evaluated by differentiated, proportional, and auditable criteria, which allow for the legal justification of information restrictions without transforming legitimate confidentiality into opacity. At the end, changes to the evaluation tool are proposed, including fields for justified responses, questionnaires compatible with the nature of each entity, training of evaluators, interaction channels, and periodic review of criteria.