Law on access to information as a tool for opening the FAP

Ana Luisa T. Noble Varella,

Cristiane I. Matsumoto Gago,

Christiane Alves Alvarenga 1 

In 2011, was published Law No. 12.527/11, which aimed to regulate the right provided for in Article 5, XXXIII of the Federal Constitution 2 , citizens' access to public information of particular interest. This law, called the "Law on Access to Information," can be used by taxpayers to have access to information used by the Ministry of Social Security (MPS) in the calculation of Accident Prevention Factor (PAF).

The FAP was established with the objective of promoting the prevention of occupational accidents and hence reduce the cost of Social Security by reducing up to 50% or increased by up to 100% of the rate of contribution to the RAT (Environmental Risks of Labor ), due to the performance of the company relative to its economic activity.

The methodology for calculating the FAP currently provided for in Article 202-A of Decree No. 3.048/99 and Resolution No. 1.316/10, the National Social Security Council (CNPS), takes into account the particular data of each company ( indices of frequency, severity and cost of accidents) and data relating to other companies in the same economic sector (same subclass SIC).

Through consultation with the MPS website, the taxpayer has access to your FAP index and information regarding their establishments were used to calculate the indices of frequency, severity and cost. Thus, the taxpayer can administratively challenge the addition of records of occupational accidents and benefits that should not have been included in the calculation of PAF.

However, the taxpayer is not granted access to the data for establishments of other companies in the same economic sector. Without such access, the taxpayer is unable to confer and contest, in its entirety, the FAP assigned to it.

In this regard, it is noteworthy that recently, a financial institution obtained court protection in the first instance decision to stop collecting the FAP, just by lack of access to information from other companies that make up its economic sector.

So while illegal / unconstitutional FAP is not defined in the judicial process - the question should be resolved by the Supreme Court in the judgment of Extraordinary Appeal No. 684,261, which had its general repercussion recognized - the taxpayer can make use of the Law of Access to Information as a tool to access information relating to other companies in the same economic sector, which are not available on the MPS website.

It is noteworthy that this access is not intended to violate the privacy rights of other companies belonging to the same subclass NCEA. The data used in the calculation of the MPS FAP can be made available without reference to the name, CNPJ or address of each of the companies comprising the same economic sector.  

The denial of access to all information used by the MPS in the calculation of PAF prevents the taxpayer exercises his right to legal defense and contradictory, in the Federal Constitution, since it is unable to verify and contest the assessment of their FAP index .

The request for access to information may be submitted to the MPS so that all the information that was used in the calculation of FAP is made available. With that information, and to confirm / question the index assigned to it, the taxpayer can recalculate your FAP after deleting records of accidents at work and challenged administratively and benefits, as a consequence, the contribution to properly collect RAT, properly fitted by FAP.