national personal data protection and privacy concil’s internal regulation was published

19 Aug national personal data protection and privacy concil’s internal regulation was published

By Fabio Vieira e Gabriela Tchalian

On May 10, 2022, National Personal Data Protection and Privacy Council’s (“CNPD”) Internal Regulation was published on the Official Union Gazette.

Broken down into thirty-three (33) articles, the Internal Regulation provides for:

• CNPD composition;
• CNPD competence;
• Duties of the CNPD President;
• Duties of its members;
• Organization, operation, and quorum of installation, voting and approval of meetings;
• Functions and competences of the National Data Protection Authority’s (“ANPD”) General Secretariat before CNPD;
• Cases of members’ removal from office and destitution;
• Creation, composition, operation, and organization of Working Parties; and
• Expenses with meetings, events, and face-to-face meetings.

Some of these items, due to their current relevance, deserve to be highlighted.

According to article 2nd, CNPD shall be staffed of twenty-three (23) members, appointed by the President of the Republic, with representatives of the following entities and groups: Civil House of the Presidency of the Republic, Ministry of Justice and Public Security, Ministry of Economy, Ministry of Science, Technology and Innovations, Presidency of the Republic Institutional Security Office, Federal Senate, Chamber of Deputies, National Council of Justice, National Council of Public Prosecutors, Internet Steering Committee in Brazil, civil society organizations with proven performance in personal data protection, unspecified scientific, technological and innovation institutions, unspecified trade union confederations of the productive sector economic categories, unspecified representative entities of the business sector related to processing of personal data and non-specified labor sector representative entities.

The presidency of the body will be up to the Civil House of the Presidency of the Republic representative, which may rekindle the debates on alleged subordination initiated at the time of the sanction of General Data Protection Law (“LGPD”) and the ANPD creation.

Each CNPD’s member shall be appointed the respective alternate.

CNPD shall be competent to, as described in article 3:

• Propose strategic guidelines and subsidize elaboration of the National Personal Data Protection and Privacy Policy and the actions of the ANPD;
• Prepare annual evaluation reports for the implementation of the National Personal Data Protection and Privacy Policy;
• Suggest actions for ANPD to perform;
• Prepare studies and hold debates and public hearings on personal data protection and privacy; and
• Popularly disseminate knowledge about personal data protection and privacy.

CNPD’s members will be responsible for:

• The effective participation in meetings and projects, presenting proposals and opinions with technical basis regarding matters on the agenda;
• The provision of all data and information relating to the exercise of its competence to CNPD, whenever they deem appropriate or so requested;
• The assessment and reporting of allocated matters;
• The coordination and participation of Working Parties;
• The oral request to CNPD’s President, during meetings, of out-of-agenda matters, presenting substantiated reasons;
• The submission of proposals on issues under examination or that may be examined;
• The performance, within its competences, of other activities and functions assigned to them by the CNPD’s President;
• The dissemination of data protection culture through participation in competitions, workshops, lectures, etc.;
• The proposal to amend the Internal Regulation itself;
• The request for information and the proposal regarding actions indicated in article 58-B, LGPD, and Annex I, article 14, Decree No. 10,474/2020, which are (i) propose strategic guidelines and provide subsidies for the preparation of the National Personal Data Protection and Privacy Policy and for ANPD performance, (ii) prepare annual reports evaluating the implementation of actions of the National Personal Data Protection and Privacy Policy, (iii) suggest actions to be carried out by ANPD, (iv) prepare studies and hold debates and public hearings on personal data protection and privacy; and (v) popularly disseminate knowledge about personal data protection and privacy;
• The provision of corrections or amendments to the minutes of the meeting;
• The subsidy to responses to citizens and institutions related to CNPD’s demands;
• The maintenance of an updated register before the General Secretariat; and
• The zeal for compliance with the Internal Regulation.

CNPD’s President was designated specific competences, which are listed in article 4. The General Secretariat is also conferred on attributions in article 18.

As long as they are in the respective CNPD positions, members will be qualified as public agents subject to the Law of Administrative Improbity.

The following are reasons to be removed from office, by decision of the President of the Republic, (i) conduct incompatible with the function dignity; (ii) more than three (3) consecutive absences or five (5) alternated absences in meetings, which are solved if there is an alternate; (iii) request for replacement by one of the bodies that appoint members to CNPD; (iv) loss of connection with the body or entity responsible for the nomination; and (v) express resignation in writing.

The removal process will be conducted in accordance with the ANPD’s internal regulation, with ANPD’s Ombudsman as the competent division for investigation.

Moreover, CNPD shall hold at least three (3) ordinary meetings per year, in addition to the extraordinary ones when convened by its President, with a minimum quorum of installation of sixteen (16) members, preferably through videoconference.

Finally, CNPD will be able to create temporary Working Parties of up to seven (7) members, being that the number of members must be always odd, to conduct analyses and studies and propose on matters within their competence.

It should be highlighted that the purposes of the Working Party shall always be determined.

To access CNPD’s Internal Regulation published in the Official Union Gazette, click here.

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.