24 May Process bill intend to amend LGPD and the Law of Guidelines and Baseline for Education is in process
By Fabio Alonso Vieira, Carolina Barbosa Cunha Costa, and Gabriela Tchalian
On March 8, 2022, Deputies Thiago Mitraud and Adriana Ventura, both from the New Party, presented in the House of Representatives Bill No. 454/2022 (“PL No. 454/2022”), which now awaits consideration by the Federal Senate.
PL No. 454/2022 intends to amend Law No. 9,394/1996 (“Law of Guidelines and Baseline for Education”) and Law No. 13,709/2018 (“General Data Protection Law – LGPD”).
Regarding Law of Guidelines and Baselines for Education, PL No. 454/2022 intended to amend article 5th, which establishes compulsory basic education as a subjective demandable public right, in order to include paragraphs 6th and 7th, with the following text:
‘§6th The Public Power is authorized to share and publish raw data and microdata collected in the school census over which inc. I of §1st of this device deals, provided they are anonymized or pseudonymized.
§7th – The Public Power is authorized to share and publish raw data and microdata collected through the National High School Exam, including segmented by educational institution, provided they are anonymized or pseudonymized.”
For the LGPD, PL No. 454/2022 intends to amend article 14, which provides for the processing of personal data of children and adolescents, for inclusion of paragraphs 7th and 8th.
This amendments states that the rules for the processing of personal data of children and adolescents would not apply to cases of sharing of personal data collected in the school census and by the National High School Exam (“Enem”), as follows:
‘§7th The sharing of personal data collected in the school census, which §3rd of art. 208 of the Federal Constitution and inc. I of §1st of art. 5 of Law No. 9,394, of December 20, 1996, provide for, even if from children and adolescents, is independent of compliance with the requirements of §§1st to 6th.
§8th – The sharing of personal data collected through the National High School Exam, even if from children and adolescents, is independent of compliance with the requirements of §§1st to 6th.’
It also aims to amend article 26 of the LGPD, which deals with shared use of personal data by the Public Power, to allow for sharing and publicization of raw data and microdata collected in the school census and Enem if anonymized or pseudonymized by the inclusion of paragraphs 3rd and 4th.
‘§3rd The Public Power is authorized to share and publish raw data and microdata collected in the school census that §3rd of art. 208 of the Federal Constitution and the inc. I of §1st of article 5 of Law No. 9,394 of December 20, 1996, provide for, as long as they are anonymized or pseudonymized.
§4th – The Public Power is authorized to share and publish raw data and microdata collected through the National High School Exam, including segmented by educational institution, as long as they are anonymized or pseudonymized.’
It is worth remembering, however, that LGPD expressly excluded anonymized data from its scope. Thus, even if PL No. 454/2022 was to be fully rejected, usage of anonymized data by the government was already possible.
In the Justification of PL No. 454/2022, the deputies narrated the episode in which National Institute of Educational Studies and Research Anísio Teixeira (“Inep”) published the data and microdata of the School Census of Basic Education and Enem with delay, reduced and making the historical series unavailable claiming adaptation to the LGPD.
It was argued that Inep’s conduct prevented understanding of the national education scenario, the evolution of learning and the conditions of education in Brazil. This is because the data provided did not allow segmentation by school, that is, the identification of the individual performance of students by educational institution.
Parliamentarians also stressed that Inep had had 2 (two) years to adapt to LGPD, so that compliance with the standard could not be used as an excuse for the delay and lack of transparency of public information.
Finally, they emphasized the importance of data for government policies supported by the Federal Constitution, one of the legal grounds for the processing of personal data provided for in article 7, III, LGPD.
On March 16, 2022, the authors of PL No. 454/2022 submitted an application for urgent consideration, taking the project to the Committees of Science and Technology, Communication and Informatics, Education and Constitution and Justice and Citizenship for conclusive consideration. The application for urgency, however, was only approved on March 31, 2022.
On April 5, 2022, Deputy Mr. Felipe Rigoni was appointed as rapporteur of PL No. 454/2022. The rapporteur delivered an opinion for the approval of PL No. 454/2022 in the form of its replacement.
PL No. 454/2022’s replacement excluded its amends to LGPD but expanded the list of amends to the Law of Guidelines and Baselines for Education for greater specification of the data involved and conditions to be observed.
Three (3) amendments to the replacement were submitted, and only those of number 2 and 3 were approved.
On April 20, 2022, PL No. 454/2022 was submitted to the Federal Senate. Click here to access the replacement submitted text.
This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KGV Advogados in relation to the matters herein addressed. Copyrights are reserved to Kestener & Vieira Advogados.
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