FOI Policy Briefing Paper

A Policy Briefing Paper:
Freedom of Information
A Policy Briefing Paper: FREEDOM OF INFORMATION
by the Center for Media Freedom and Responsibility in partnership with the Asian Institute of Management Policy Center with a grant from the National Endowment for Democracy
COPYRIGHT 2011 Center for Media Freedom and Responsibility
TABLE OF CONTENTS
Introduction ................................................................................................................................. Tracking the Legislation ....................................................................................................... Multisectoral Perspectives

Enhancing or Restricting Access? ................................................................... FOIA: An Anti-corruption Tool ......................................................................... The Experience of Working Journalists .......................................................... Access to Information Under P-NOY: Some Open Spaces, Many Closed Corners .......................................................
4 8
18 21 26 26 37
Conclusion and Recommendations .............................................................................

CMFR Policy Forum on the Freedom of Information Speakers ....................................................................................................... Participants ......................................................................................................................
38 39
Annex
House Bill No. 53 .........................................................................................
41
INTRODUCTION
The Center for Media Freedom and Responsibility (CMFR) initiated a training program several years ago to help the media track policy news. The coverage and reporting of such news should ideally start with the initial phase of policy-making, followed by the preliminary discussions that lead to more formal expressions of policy, such as executive orders, legislation, and in some cases, case law, or the courts interpretation of the law. Reporting policy is difficult, unless policy has been cast in stone as legislation. But even in such cases, the press has problems putting together the needed stories because so many other issues, events, and concerns demand media coverage and events that fall within the conventional framework of news are easier to report. The who, what, when, and where journalistic points of inquiry are focused on events; policy news requires an emphasis on process.
The free press plays a critical role in the formation of sound public policy. The press can be a forum in which policy ideas and initiatives are tested and formed in the arena of public opinion. This exchange should engage a broad representation of citizens, a critical mass that will make the discussion representative of competing interests and involve the same in the establishment of public consensus. In partnership with the Asian Institute of Management Policy Center, CMFR held the first of a series of three media and policy forums last July 27. A grant from the National Endowment for Democracy made the event possible. The event adopted two tracks to discuss the Freedom of Information (FOI) issue: the first by following the legislation process and the second, by reviewing the experience of different sectors in the course of the campaign for an FOI. Political context and background Nineteen years since the first FOI bill in Congress was filed, the Philippines has yet to pass an FOI Act (FOIA).
CMFR organized the media and policy forums to include not just the press but also civil society organizations, advocacy groups, students, as well as those engaged in the formal formulation of policy.
The bill moved farthest in the 14th Congress. It was approved by the bicameral conference committee and ratified by the Senate, but died in the House of Representatives.
A Policy Briefing Paper: Freedom of Information
The country is shamed by this failure in the context of the global surge for FOI laws. As of February 2010, at least 80 countries19 in Asiahave nationwide laws which recognize the right to information and access to public records. The democratized countries of Southeast Asia, among which the Philippines has stood out as among the most liberal minded of societies, have passed FOI laws. Thailand has had an FOI act since 1997; Indonesia adopted one in 2010; and even Malaysias Selangor State has passed its own version. The failure to pass a Philippine FOI law reflects long embedded contradictions in Philippine society, for example the mass enchantment with elections together with the resistance to the political concepts and the legal and social infrastructure that can assure that democracy works.
Indeed the Philippines has many laws that are at cross-purposes with democratic values.
Democratic space and practice have fostered the advancement of communication technology. But laws formulated during the Spanish and US colonial periods and the Martial Law era have remained in the books and can still be invoked when convenient. The nonlibertarian bent still has laws on its side. The 1987 Constitution grants freedom of expression, but there are laws, and even agencies, that allow censorship and prior restraint. The same Constitution guarantees the right to information. But so far, the 15th Congress has had to start from scratch with lawmakers once again filing bills so a law can provide for access to information for all citizens. The expectation that President Benigno S. Aquino III will make this a priority of his presidential agenda remains frustrated by the seeming indifference of his administration to the passage of such a law.
The desire for more transparency and accountability, the recognition of the power of information and the valued participation of citizens in public affairs are well justified by the experience of dictatorship when even the press became an instrument of official deception. During that period the controlled regime successfully hid the evidence of national plunder.
The objections to FOIA are weakened by this context and by legitimate concerns about the needs for operational security of military, police, and defense agencies. These matters should be discussed, but narrowly construed. Again, experience has shown that these objections arise from the law enforcement communities that in the past have demonstrated a capacity to abuse the grant of confidentiality and secrecy given them. Resistance to an FOIA must be examined with eyes wide open. Since 1986, the resort to secrecy has taken over the official mind set. Government officials find it difficult to imagine doing their work without some kind of protection from public inquiry.
The problem is fundamental. Members of the political class, whether elected or appointed, become more concerned with conducting the business of government as they please without having to answer to their constituents. Broaden the circle of access Journalists have never thought it so important to have such a law, because the practice and custom of reporters in this country have made them knowledgeable about getting information. But in the 25 years since the fall of dictatorship and its system of controls, even those practices in tracking wrongdoing have become more difficult in getting information on government.
The denial of the right to information and access to government-held records on matters of public concern in the Philippines has become widespread. Requests for official documents, records, and data are met with inaction, excuses, referrals, or outright rejection.
Indeed, CMFR sees the need for legislation as an instrument for widening access to involve and to include the right of all citizens to information that it needs, information being among the most significant grants of democratic societies to their members, requiring, as the system does, the active engagement and participation of all citizens in decision-making and in governance. Current FOI policy The 1987 Philippine Constitution guarantees the right to information: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law. (Bill of Rights, Article III, Section 7) Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (Declaration of Principles and State Policies, Article II, Section 28) As policy however, the Philippines can look to Supreme Court decisions, among which, Valentin L. Legaspi vs. Civil Service Commission (G.R. No. 72119. May 29, 1987), and Ricardo Valmonte, et al vs. Feliciano Belmonte, Jr. (G.R. No. 74930. February 13, 1989) affirming the right of the petitioners to obtain information from public bodies. In the second case, which goes back to the Marcos era, media members seeking confirmation of Government Service Insurance System (GSIS) clean loans made to certain mem6
bers of the Batasang Pambansa (BP), the Court, in a decision penned by Justice Irene Cortes said, The right to informationis meant to enhance the widening role of the citizenry in governmental decision-making as well as checking abuse in government. However, the public can also go to Executive Order No. 89 (Directing the implementation of a policy of accessibility and transparency in government) issued by then President Fidel Ramos requiring national government agencies to formulate procedures for the public and relevant agencies to follow when there are requests for government data and information. Another law, Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) compels disclosure of information on government matters. Although guaranteed in the Constitution and other legal instruments, an FOIA is still necessary to define the procedures and punish those who violate these rights. Most experts understand FOI as a critical component of the information system in a democracyfacilitating the right to know. The advocacy for FOIA is based on the right to information of ordinary citizens, who must be empowered to know more about government and its conduct if they are to be active participants in public affairs. Advocates hope that an FOI law, which enhances the right to know, will be ratified soon. Citizens and civil society organizations are closely monitoring the response of the Aquino administration and the 15th Congress to the demand for an FOI, particularly since the President won the last elections committing to uphold transparency and good governance. MELINDA QUINTOS DE JESUS Executive Director Center for Media Freedom and Responsibility
TRACKING THE LEGISLATION

The initiative of the 15th Congress to pass the FOIA: The Palace version Freedom of Information (FOI) legislation beThe executive has created an inter-agengan early. cy team to study the FOI issue. President There are 12 FOI bills currently in the Senate Benigno S. Aquino III said in his speech at and another 12 in the House of Representa- the 25th anniversary of The Philippine Star, a tives. The Senate Committee on Public Infor- daily newspaper: mation and Mass Media has held two hearings on the bills. My administration is in the process of drafting, and suggesting, a Freedom of InformaHouse Deputy Speaker Lorenzo Erin Taada tion bill that we believe will balance legitiIII (4th District, Quezon) authored House Bill mate needs for secrecy with the publics (HB) No. 53, which adopted in full the bicam- right to know. This right to know carries eral conference committee version of the 14th with it responsibilitiesto use the inforCongress. (Please see annex on page 41.) mation available in context; to present facts fairly; and to be conscious of some elements Other representatives and senators filed the who may want to use the information not same version. to inform the public, but to, rather, inflame them. We are carefully studying the details The House held a committee hearing and a of such legislation in order to ensure that it technical working group (TWG) meeting for serves the public interest without comprothe consolidation of the measure. Taada mising it. (Delivered at the Makati Shangrisubmitted a proposed version which consoli- La Hotel on July 28, 2011; http://www.gov. dates his bill with those of Reps. Marcelino ph/2011/07/28/president-aquinos-speechR. Teodoro (HB 22), Juan Edgardo M. Angara at-the-25th-anniversary-of-the-philippine(HB 86), Rachel Marguerite B. Del Mar (HB star-july-28-2011/) 1968), Sergio F. Apostol (HB 1713), Winston T. Castelo (HB 2128), and Karlo Alexei B. According to Undersecretary Manuel L. QueNograles (HB 59). zon III of the Presidential Communications Development and Strategic Planning Office, Despite these actions by Congress, the bill the administration has issues with the Conremains stalled in the committee on public gress FOI versions. Malacaang has proposed information of both Houses. The delay in the its own version that addresses those issues. legislative process can partly be attributed to the refusal of the executive branch to include The frank and candid deliberations durthe FOI bill in the list of priority legislative ing meetings should be maintained. The measures. Palace version proposes the adoption of: 8
Section 6 a.2: Exceptions The information requested pertains to the foreign affairs of the Republic of the Philippines, when its revelation shall/may unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation
Section 6d: Exceptions The information requested consists of drafts of orders, resolutions, decisions, memoranda or audit reports by any executive, administrative, regulatory, constitutional, judicial or quasi-judicial body in the exercise of their regulatory, audit and adjudicatory function. The executive communications privilege should remain inviolable. Thus:
cial information obtained from a natural or juridical person other than the requesting party, obtained in confidence or covered in privileged communication, and/or filed with a government agency, whenever the revelation thereof would seriously prejudice the interests of such natural or juridical person in trade, industrial, financial or commercial competition. Personal privacy should be protected. Thus:
Section 6b: Exceptions The records of minutes and advice given and opinions expressed during decisionmaking or policy formulation as part of the Chief Executives deliberative process. Once policy has been formulated and decisions made, minutes and research data may be made available for disclosure unless it is made in executive session. Section 6e: Exceptions The information requested is obtained by any committee of either House of Congress in executive session.
Section 6f: Exceptions The information requested pertains to the personal information of a natural person other than the requesting party, and its disclosure would constitute a clearly unwarranted invasion of his or her personal privacy, unless it forms part of a public record, or the person is or was an official of a government agency and the information relates to his or her public function or the person has consented to the disclosure of the information. Section 11: Additional Protection of Privacy While providing for access to information in public records, this Act also affords full protection of the right to privacy of individuals
Commercial or financial information should be protected if it would prejudice governments ability to transact business. Hence: Section 6g: Exceptions The information requested pertains to trade secrets and commercial or finan-
Section 29: Implementing Rules and Regulations Within ninety (90) days from the appointment of the members of the Commission, the Commission shall promulgate implementing rules and regulations to effectively implement the provisions of this Act.
Inclusion of Implementing Rules and Regulations (IRRs):
The replacement of national defense with national security in the Congress versions of the bill as grounds for invoking exceptions: Section 6a.1: Exceptions The information directly relates to national security or defense and its revelation may cause grave damage to the national security or internal and external defense of the State The creation of an Information Commission.
for three years, and the last commissioner for two years, without reappointment. Limiting penalties to administrative rather than criminal sanctions, except in cases of destroying documents or perjury.
Section 15: Creation of an Information Commission There is hereby created an independent Information Commission, which shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.
Section 12: Administrative Liability The acts enumerated in this Section shall be tantamount to gross neglect of duty and shall constitute grounds for administrative and disciplinary sanction against any public official or employee who willfully and knowingly commits the following: a) Refusal to promptly forward the request under Section 22 of this Act to the public officer within the same office or agency responsible for officially acting on the request when such is the direct cause of the failure to disclose the information within the periods required by this Act; b) Failure to act on the request within the periods required by this Act; c) Refusal to comply with the decision of his immediate supervisor, the Commission or of any court ordering the release of information; d) Approval of policies, rules and regulations manifestly contrary to the provisions of this Act, and which policies, rules and regulations are the direct cause of the denial of a request for information.
Section 16: Composition of the Commission The Commission shall be composed of a Chairman and two commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years (35) of age, with proven competence, probity and integrity, and has not been a candidate for any elective position within two (2) years prior to appointment; provided, that the Chairman shall be a member of the Philippine Bar with at least ten years (10) experience in the practice of law and with known expertise on the right to information. The Chairman and commissioners shall be appointed by the President of the Philippines for a term of six (6) years without reappointment. Of those first appointed, the Chairman shall hold office
Section 13: Criminal Liability a) Any public official or employee who falsely denies or conceals the existence of information mandated for disclosure under this Act shall be liable for the crime of removal, concealment or de-
10
struction of documents as defined under Article 226 of the Revised Penal Code. Advocates campaign: Prioritize the bill With the recent non-inclusion of the FOI bill in the second Legislative-Executive Development Advisory Council (LEDAC), citizens, and advo17 August 2011 As PNoy defaults on FOI, Congress must now take the lead Kung talagang gusto, hahanap ng paraan. Kung talagang ayaw, hahanap ng dahilan.
cates have asked Congress to take the lead.
The Right to Know. Right Now! Coalition launched its latest campaign called Bantay FOI, Sulong FOI to push the Aquino administration to pass the bill. Below is the coalitions statement on the Presidents failure to endorse the bill to LEDAC:
This is exactly where President Benigno Simeon C. Aquino III stands on the proposed Freedom of Information bill, which seeks only to enforce a constitutionally guaranteed right of the people to know and secure documents in the custody of government agencies.
The President says he supports the bill in principle, but that he has specific questions and concerns that he wants to be settled, before he endorses it as his priority legislation. His concerns, the President says, include his fears that FOI could unlock documents that might expose people to kidnappers, cause government losses in right-of-way cases because of property price speculations, and many other unwanted results. Yet over the last 14 months in office, he has failed to answer and settle these concerns, and for as long a period, the FOI bill has languished in limbo. A Malacaang study group on the FOI had told us about other, bigger concerns of the President. Through Deputy Speaker and Quezon Rep. Erin Taada, chief author of the FOI bill in the House of Representatives, we informally and indirectly engaged the study group in constructive dialogue over the last six months.
Two critical concerns on exceptions were addressed over time in three successive drafts of the FOI bill that the Palace study group crafted national security and the Presidents deliberative process. These were in addition to existing exceptions in the FOI bill based on national defense and foreign affairs; military or law enforcement operation; privacy; trade, industrial or commercial secrets; drafts of
11
adjudicatory decisions; privileged information in legal proceedings; executive session of Congress; and exceptions recognized in other statutes or the Constitution. The legislative process practically ground to a halt, precisely because the President and his study group said they were drafting their own FOI bill. We had hoped that by the opening of the second regular session of Congress, the Palace draft would be done, and the President would have certified it as a priority measure.
We had hoped as much because we still remember: As the presumptive winner of the May 2010 elections, the President had promised to assign first priority to the FOIs passage into law, and in June 2010, as president, he launched his government on the principles of transparency, accountability, and good governance.
This is the first time we are hearing that the President has new concerns about what he says could be the undesirable results of an FOI law. His study group had not raised them at all. And it appears like pending these and even new and more concerns he could raise in the future, the FOI bill will languish in limbo for longer. The President assures us that he supports the FOI bill in principle but that because his concerns linger, he could not act on his own study groups version of the FOI bill. By all indications, the FOI bill remains stuck at the Palace. What seems like a state of principled indecision in Malacaang makes us wonder: Is the President part of the solution, or part of the problem, in assuring the passage of the FOI bill? Or perhaps neither, because he has chosen to pass up a chance to lead on a strategic policy issue that the Constitution has so clearly mandated him and all public officials to uphold and enforce the peoples right to know. The fate of the FOI bill was a leadership call on the President. We had not wished he would default. Yet because he has, we refocus our efforts on the House of Representatives and the Senate, which should, without need for cue or advice from Malacaang, act now and quickly on the FOI bill.
We do so with eyes wide open that as it was in the 14th Congress under then President Gloria Macapagal Arroyo, the FOI bill could face rough, tough sailing in the 15th Congress. While Mrs. Arroyo and her allies vigorously opposed and killed the bill before it could be ratified, President Aquino now seems to want to let the bill waste away, and fade in time. THE RIGHT TO KNOW, RIGHT NOW! COALITION/ BANTAY FOI, SULONG FOI! CAMPAIGN
12
BusinessWorld quoted committee chairman Sen. Gregorio Gringo Honasan II as saying that, Even if it (FOI Bill) was not endorsed by the President as urgent or priority, the bill would still be pursued (Freedom of Information bill still alive in Senate, Aug. 18, http://www.bworld.com.ph/content. php?section=Nation&title=Freedom-of-Information-bill-still-alive-in-Senate&id=36805)
Nepomuceno Malaluan, lawyer and co-convenor of the Right to Know. Right Now! Coalition, said the FOI is a matter of righta democratic power. Citizens deserve the bill. InterAksyon.com quoted Taada: In the end, Under this admin(istration), the bill will the House leadership will have to make a de- hopefully become a law.
cision if it wants to pass the FOI bill. (FOI passage still possible if lawmakers work for it Tanada, Aug. 17, http://www.interaksyon.org/article/11134/foi-passage-stillpossible-if-lawmakers-work-for-it---tanada)
13
1987
August 31, 1992 1993 1998-2001
August 25, 1998 August 26, 1999 January 2004 June 30, 2004
2005
2006
Enactment of the Philippine Constitution of 1987. The right to information is recognized in Article 2, Section 7 and Section 28: The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to limitations as may be provided by law. Rep. Oscar Orbos files House Bill (HB) 1805 or the Freedom of Information (FOI) Act of 1992 which mandates government officials to provide access WITHIN 15 WORKING DAYS from receipt of (a request for) information. It also directs the Supreme Court to publish the rules prescribing the procedures, periods and pleadings, as well as courts to which appeals may be made. FOI Act advocacy groups are organized. At the 11th Congress, a right to information bill passes in third reading in the House, but had no counterpart bill in Senate. Rep. Harlin Abayon files HB 2284 or the Freedom of Access to Information Act Rep. Jose Apolinario Lozada, Jr. files HB 8194 or the Freedom of Information Act of 1999 Six right to information bills are filed under the House Committee on Public Information, including a committee report. Sen. Franklin Drilon files Senate Bill (SB) 1112 or the Freedom of Information (FOI) Act of 2004 in the 13th Congress. Four house bills are filed to give life to the constitutional provision on right to information: HB 784, filed by Rep. Harlin Cast. Abayon (1st District, Northern Samar) HB 2123, principally authored by Rep. Satur Ocampo (Party List, Bayan Muna) HB 2993 by Rep. Emmanuel Joel Villanueva (Party List, CIBAC) HB 3041 by Rep. Ernesto Ernie Pablo (Party List, CIBAC) Civil society groups urge passage of the Freedom of Access to Information Act of 2006 sponsored by nine representatives. Its working title is Implementing the right of access to information on matters of public concern guaranteed under Section 7, Article III of the 1987 Constitution and for other purposes. Timeline of the FOI Legislation
14
April 2008
April 2, 2008 April 18, 2008 April 30, 2008
May 6, 2008 May 12, 2008 May 27, 2009 June 3, 2009
Aug. 27, 2009 Dec. 7, 2009 Dec. 14, 2009 Dec. 17, 2009 Jan. 18, 2010 Jan. 20, 2010 Feb. 1, 2010 Feb. 3, 2010
HB 3732, titled An Act Implementing the Right of Access to Information on Matters of Public Concern Guaranteed Under Section Twenty-Eight, Article II and Section Seven, Article III of the 1987 Constitution and for Other Purposes, was a substitute for bills 194, 997, 1665, 2021, 2059, 2176, 2223, 2293 and 3116, which had previously been referred to the committee on public information for deliberation. Nograles says in a public statement that When there is full public disclosure of all government transactions involving public interest, subject to limitations under the proposed Act, the people will have full confidence and trust in their public officials and therefore there will be effective governance. House committee report on FOI is released. HB 3732 passes 2nd reading in the House of Representatives (HOR). HOR deliberates on HB 3732. HOR first approves FOI bill, with 197 out of 220 voting in favor of the bill. Two committee hearings are held in the Senate on its version of an FOI bill; a committee report is then finalized. The Senate Committee on Public Information and Mass Media files SB 3308 under Committee Report 534 or the Freedom of Information Act of 2009 FOI bill is sponsored in the Senate plenary. The Senate passes the FOI bill on second reading. The Senate approves the FOI bill on third and final reading. Senate transmitted FOI bill as approved to the HOR. The Bicameral conference committee on the FOI convenes as Congress resumes session after the Christmas break. The bicameral conference committee reconciles conflicting provisions in the Senate and House bills. The Senate approves the FOI Bill. The HOR fails to approve the FOI bill for lack of quorum. Congress goes into recess in preparation for the May 2010 elections.
House Speaker Prospero Nograles urges the House to discuss the FOI bill or HB 3732. Timeline of the FOI Legislation
15
May 24, 2010 May 31, 2010 June 4, 2010
June 5, 2010
July-August 2010 July 26, 2010 Oct. 14, 2010 Nov. 23, 2010
June 6, 2010
Congress resumes session to canvass the votes, commits to tackle FOI bill on May 31. HOR holds a separate session but is not able to tackle the bill as Nograles suspends it immediately. Microphones are turned off on the plenary hall while representatives are trying to make a motion to be recognized. The HOR suspends the national canvassing of May 10 votes supposedly to tackle pending legislative measures. Rep. Pedro Bienvenido Abante moves for approval of the bill but Rep. Romualdo objects, citing lack of quorum. The HOR adjourns sine die. Senators Juan Ponce Enrile, Miguel Zubiri and Alan Peter Cayetano vow to revive the FOI bill in the 15th Congress Then presidential frontrunner Sen. Benigno S. Aquino III says the FOI bill will be a priority of his administration. Congress (HOR and Senate) representatives file 24 FOI bills (12 in each House). President Benigno S. Aquino III does not mention the FOI issue in his first State of the Nation Address (SONA). Senate holds its first committee hearing on FOI. House holds its first committee hearing on FOI. Timeline of the FOI Legislation Sponsorship of HB 53 at the Hearing by the Committee on Public Information (Rep. Lorenzo Erin Taada III - 4th district, Quezon Province) House holds one technical working group meeting for the consolidation of the measure. The first Legislative-Executive Development Advisory Council (LEDAC) does not include the FOI bill. The Right to Know. Right Now! Coalition launches the Bantay FOI! Sulong FOI! Campaign. President Aquino does not mention the FOI bill as a priority measure in his second SONA. CMFR Policy Forum on FOI; GMA News Jessica Soho interviews President Aquino on FOI.
Feb. 3, 2011
Feb. 28, 2011 July 19, 2011 July 25, 2011 July 27, 2011
16
July 28, 2011 Aug. 16, 2011 Aug. 18, 2011
Sources: abs-cbnNEWS.com || Access to Information Network || Aer.ph || Ansa-eap.net || BusinessWorld Online || Congress.gov.ph || GMA News Online || Ifoi.ph || Inquirer.net || InterAksyon.com || Minimalgovernment.net || Philippine Journalism Review/PJR Reports || Philstar.com || Right to Know. Right Now! Coalition
President Aquino says the administration is in the process of drafting, and suggesting, a Freedom of Information bill that we believe will balance legitimate needs for secrecy with the publics right to know. (speech at the 25th anniversary of The Philippine Star) The second LEDAC excludes the FOI bill. The Senate Committee on Public Information and Mass Media holds a hearing on FOI bill. Timeline of the FOI Legislation
17
MULTISECTORAL PERSPECTIVES
Enhancing or restricting access?
Luis V. Teodoro Center for Media Freedom and Responsibility A rational system of providing citizens information on government matters is preferable to the present situation in which, despite Constitutional recognition of the right to information and a number of laws and executive orders implementing that right, access to information can be difficult and subject to bureaucratic whim. Seemingly in furtherance of that aim, the (Benigno S.) Aquino III administration has drafted its own version of a Freedom of Information Act (FOIA). But will such a rational system result once the administration FOI bill is enacted into law? and Pakistan have one). But among journalists if not among citizens, the consensus ten years ago was that government information in the Philippines was generally accessible. The Philippines led other countries in Southeast Asia in accessibility to government information in a 2001 survey by the Southeast Asian Press Alliance. More recently, however, and especially during the (Gloria Macapagal) Arroyo regime, obtaining information on government matters has become more difficult, and the absence of an FOIA in the Philippines does seem an anomaly in this rumored democracy, and institutionalizing access to The Constitution recognizes the right to in- information through law couldand it is a formation, and the Supreme Court has ruled possibility rather than a guaranteed certainthat the right to information is a public right tymake the release of government inforthat may be exercised by any citizen. Its ex- mation to citizens less subject to the whims ercise by citizens and state implementation of clueless bureaucrats and corruption-ridis supported and mandated by Republic Act den administrations obsessed with secrecy. (RA) No. 6713 and Executive Order (EO) No. 89. RA 6713 compels government agencies to The basic principle that drives calls for an disclose information on government matters FOI is that the citizens in whom sovereignty upon request, while EO 89 requires national resides in a democracy require and have a government agencies to draft and implement right to information on government matters procedures for both the public and govern- both to exact accountability from those to ment agencies to follow when there are re- whom they have delegated state power, as quests for information. There are other ex- well as in behalf of the democratic imperaecutive orders as well as laws that mandate tive of participation in decision-making. But the release of information on government the culture of secrecy, which has developed matters, although others do restrict it. because of, among other reasons, the corruption that has metastasized throughout The Philippines is among the few countries government and much of society has such in Asia without an FOI law (even Bangladesh deep roots in this country that few govern18
ment officials and bureaucrats regard openness as both a human right as well as central to effective governance.
Dismantling that culture, says Toby Mendel of the Centre for Law and Democracy in a 2008 paper (Freedom of Information, A Comparative Legal Survey) for United Nations Educational, Scientific and Cultural Organization Paris, is indispensable to the promotion of open government. Among other guiding principles, Mendel listed the following as necessary to the making of an authentic (rather than illusory) freedom of information regime:
A provision forbidding the release of in2. The obligation to publish, which makes formation on policy discussions until the it the duty of government agencies to adoption of the policy is on the other hand pro-actively disseminate and publish in- antithetical to the principle of citizen particiformation of public interest; and pation in the making of state policy. The bill also removes the public interest override on 3. A limited scope of exceptions. Excep- executive (Presidential) privilege in the Tations should be narrowly as well as clearly ada version, thus institutionalizing absolute specified and must be based on whether executive privilege through law. the requested information once release will cause harm and whether it will be The administration bill also creates a supposedly independent Information Commiscontrary to public interest. sion whose members would be appointed by The fundamental issue is whether, to begin the President. The Philippine Commission with, the bill that will be introduced for con- would have vast powers, among them that sideration by the present Congress meets of ruling on the legitimacy of requests for these criteria. Since the administration ver- information, imposing a temporary or persion was obviously not prepared just to pass manent ban on the disclosure of information, the time, we must subject it to the above holding any person in direct or indirect contests, as the Right to Know. Right Now! Coali- tempt, proposing legislation, and suggesting tion and the Center for Media Freedom and amendments to Philippine laws on access to information. For all these powers, the comResponsibility have done.
1. The principle of maximum disclosure, based on the assumption that freedom of information is both a fundamental human right as well as vital to democratic governance;
Some of their most salient findings deserve repeating. A scan of the administration bill reveals a focus on restrictions rather than the right to information. The administration bill expands the list of information exempted from public disclosure, and through that alone already restricts the right to information. The expansion of the Taada (Lorenzo Erin Taada III 4th District, Quezon) bill provision on exempting matters on national defense into national security provides government agencies the same catch-all excuse for withholding information that has in the past been used to justify government secrecy and even the commission of human rights violations. This provision in fact bears the fingerprints of the intelligence and military communities, whose traditions of secrecy and antipathy to human rights qualify them least to providing inputs to any FOIA.
19
missioners are not required to have any background in human rights, information, or media advocacy and, except for the chairman who must be a lawyer, need only be at least 35 years old and natural born Filipino citizens.
If the administration bill is passed even in its present formand it is likely to be amended, altered and watered down by the members of Congress, among whom there is a goodly number who have not overcome their authoritarian and self-serving mindsetsit will make access to information more problematic than it is today, putting it in the same category of laws supposedly meant to broaden citizen rights but which actually restrict them.
The groups that have supported the 19-year effort to have an FOIA passed need to very carefully examine the administration bill. If it will, from the get-go, already restrict access to information and is likely to be made even more limited by Congress, it is necessary to express the strongest opposition against it. Perhaps these groups could direct their energies to a campaign for citizen awareness of their right to information as Once in the books such a law will be difficult already affirmed by the Supreme Court and to repeal or amend. Perhaps Aquino fears as reflected in various laws and executive the possibility of abusebut the abuse of orders. In shortno law in the Philippine rights is an acceptable and necessary risk information context is preferable to a bad in a democratic regime; only the denial of law. Perhaps openness in government and rights can guarantee the absence of abuse. democracy through an informed citizenry We can grant for the sake of argument that can thus be better served.
Aquinos administration will be liberal in its implementation of the bill it has drafted. But what happens after 2016, when a new administration whose shape and temper we cannot predict, comes to power? Whatever FOI bill becomes law will, after all, outlive the Aquino III administration.
20
FOIA: An anti-corruption tool
Based on the presentation of Ronald Mendoza, executive director of the Asian Institute of Management Policy Center. One of the most pressing problems in the Philippines is graft and corruption. The country ranked 134 (out of 178 countries) and scored 2.4 (on a scale from 10 very clean to 0 highly corrupt) in the 2010 Corruption Perceptions Index of the Transparency International. (http:// www.transparency.org/policy_research/surveys_indices/cpi/2010/results) According to a Transparency International survey, the Global Corruption Barometer shows corruption in the last three years increased as observed by 69 percent of the respondents. Ronald Mendoza, executive director of the Asian Institute of Management Policy Center, said there is empirical evidence linking the freedom of information (FOI) and anticorruption programs: FOI can reduce and prevent corruption in governance as well as sustain anti-corruption efforts in the long run.
Below is a snapshot of the access to information process and how it relates to good governance in public finance:
CORRUPTION Think tanks and academic and other experts
BUDGET BLACK BOX
Media
21
The flashlight serves as the think tanks, academics, and other experts (such as investigative journalists) which shed light on the black box, in this case the budget. For most people, the budget is difficult to understand as it includes jargon, finance, economics, and figures. If all of these are made transparent, it may not necessarily be that helpful because few people understand what is actually going on. But the deeper issue is whether the budget process itself is open to examination. This is where a stronger FOI environment matters. You cant really see through the black box unless stakeholders shed light on it. Once the light passes through it, people then spot the issues of inefficiency and in some cases corruption. Even if people see corruption, if they do not understand what it means or how it affects their lives, then there may not necessarily be a demand for a correction of that corruption. This is where the media can play an important role. They facilitate the dissemination of information and trigger the institutions to act, or demand for a particular reform. In the end, the hammer will hit the black box and destroy corruption. The illustration shows the logic of what we are trying to do.
proving our budget openness, the country scored relatively low. We still have things to do to make it really transparent. The public may not necessarily have to actually access information to change behavior. The mere threat of public access to information can curb corrupt practices. International experience has proven this to be true. Curbing leakage of public funds in Uganda Does citizen literacy help curb public spending leakages?
The stakeholders and players come to function at different points. But if the media are not strong and independent, then any amount of FOI will not matter. The public needs to understand the types of data available to really appreciate information. The anomaly will not be corrected if not for this. The Philippines Open Budget Index 2010 score shows that the budget process is relatively open. But in terms of im22
Ugandan primary school students are supposed to receive grants from the Ministry of Education. Yet during 19911995, schools on average received only 13 percent of the grants. And most schools failed to receive any grant at all. To promote stronger accountability among local officials and arm parents and teachers with information, the central government began to publish monthly transfers of public funds to districts in newspapers. Primary schools were required to post public notices on all inflows of funds. Reinikka and Svensson (2003;2004) found that capture was reduced from over 80 percent before the information campaign to less than 20 percent afterwards.
Please see graph on Expenditure tracking and public information campaign in Uganda.
AIM Policy Center
Expenditure tracking and public information campaign in Uganda Grants to Students in Uganda (US$ per student), 1990-1999
3.5 3.0 2.5 2.0 1.5 1.0 0.5 0.0
Public info campaign
Intended grant
Actual grant received by primary school (means)

Source: Kauhmann (2009).
Government audits of road projects in Indonesia
Is the threat of government audits enough to reduce corruption in infrastructure projects?
The Indonesian government did audits of road infrastructure projects to try to expose corruption and inefficiency. Olken (2007) studies the impact of this policy on over 600 Indonesian village road projects. He found that increasing government audits from 4 percent of projects to 100 percent reduced missing expenditures (i.e. discrepancies between official project costs and an independent engineers estimate of costs) by 8 percentage points. AIM Policy Center
23
Indias Right to Information Act
Does the threat of a freedom of information (FOI) investigation reduce petty bribery taking?
Urban slum dwellers of New Delhi apply for ration cards at the local offices of the Food and Civil Supplies Department. New Delhi urban poor apply for ration cards to receive subsidized food. Peisakhin and Pinto (2011) compared the time it took to receive the ration card under three different conditions: a) bribe was paid; b) FOI application attached to the card application; and c) NGO support Application for information under the RTI Act could expose corruption. The study found that: Bribers received their ration cards four times faster on average than those who did not bribe. RTI applicants received their ration cards almost just as fast as bribers. AIM Policy Center
Improved voter information in Brazil
Does improved voter information enhances political accountability?
Brazilian government began to randomly audit the municipal expenditure of federally transferred funds in April 2003. Audit reports disseminated to the mass media to improve transparency and accountability in public finance management. Ferraz and Finan (2005) studied the impact of information on corruption among politicians and they found that in municipalities where radio stations are present and higher levels of corruption are revealed, the program reduces reelection rates by 32 percent. Audit and information campaign resulted in $160 million reduction in misappropriation. and use it to judge whether they are satisfied or dissatisfied with the particular state of affairs. AIM Policy Center
People need to know the importance of information, develop the ability to access information,
24
Selected References
Deles, Paola, Ronald U. Mendoza and Gabriel Vergara. 2009. Social budgeting initiatives and innovations: Insights using a public finance lens. Working paper. New York. Ferraz, C. and F. Finan. 2005. Exposing Corrupt Politicians: The Effect of Brazils Anti-Corruption Program on Electoral Outcomes. Mimeo. (http://areweb.berkeley. edu/~sberto/AuditExp1.pdf). Hameed, F. 2005. Fiscal Transparency and Econmic Outcomes. IMF Working Paper 05/225. (http://www.imf.org/external/ pubs/cat/longres.cfm?sk=18329).
Olken, B. 2007. Monitoring Corruption: Evidence from a Field Experiment in Indonesia. Journal of Political Economy 115(2):200249. Peisakhin, L. and P. Pinto. 2011. Quantifying Corruption and Assessing Anti-Corruption Initiatives: Evidence from a Field Experiment in India. Regulation and Governance 4(3):261-280.
Reinikka, R. and J. Svensson. 2003. The Power of Information: Evidence from a Newspaper Campaign to Reduce Capture. Working Paper, Institute for International Economic Studies, Stockholm University. (http://emInternational Budget Partnership 2011. lab.berkeley.edu/users/webfac/emiguel/ Open Budget Index. (http://www.interna- e271_s04/jakob.pdf.) tionalbudget.org/). Reinikka, R. and J. Svensson. 2004. Local CapKaufmann, Daniel. 2009. On child rights, de- ture: Evidence from a Central Gvoernment velopment and governance: Some evidence- Transfer Program in Uganda. The Quarterly based reflections. Presentation at UNICEF Journal of Economics 119(2):678-704. Conference, Is Governance Good Enough for Children Honoring 20 Years since the Con- Tanzi, Vito. 2006. Fiscal policy: When theory vention on the Rights of the Child, New York, collides with reality. Center for European Policy Studies 246. October 27, 2009.
25
The experience of working journalists
With the amount of resources available to them, media practitioners are still not assured government agencies and officials will grant their requests for public records and other documents. They observed that there is no clear and working system to access information. If there were defined procedures, other barriers appear. Such concerns as multiple layers of bureaucracy, buck-passing, inordinate delays, and seeming indifference to or ignorance of relevant laws to access to information make it more difficult for journalists to report issues. Malou Mangahas of the Philippine Center for Investigative Journalism (PCIJ) and Carolyn Arguillas of MindaNews shared their stories in the field. Access to information under P-Noy:
Some open spaces, many closed corners
Philippine Center for Investigative Journalism May 1, 2011
DRIFT AND confusion. There are pockets of transparency, but almost everywhere, there is a predilection for opaqueness and more barriers to access are in place.
Arguillas made requests for the Statements of Assets, Liabilities and Net Worth (SALN) of Mindanao governors and city mayors on Sept. 1, 2010. Ten months after, she is still waiting for a response. Indeed, how do we ensure local government units are transparent and accountable when national agencies and the highest ranking officials do not comply with access to information requests.
This is the access to information regime that lingers in the Philippines nearly a year after Benigno Simeon C. Aquino III came to power on a Social Contract with the Filipino People, which he said would be defined by transparency, accountability, and good governance. But a seven-month PCIJ audit of how 27 national agencies deal with access to information requests shows spotty proof of Aquinos recipe for good governance in the processes and practices of these agencies. While a few stand out as exemplars of transparency, the majority remain stuck in the old ways of opaque government, with some even sliding back into darker corners.
PCIJs report revealed a mixed picture of progress and regress in how 27 national agencies are dealing with requests for access to information and asset disclosure records of senior public officials since President Benigno S. Aquino III came to power: 26
To the last set belong the Office of the President and the nations top integrity office, the Office of the Ombudsman. The two stick out in the PCIJ audit as the most barren fields for harvesting information and documents, particularly on the wealth of senior public officials.
The 27 agencies covered by the audit include Malacaang, the Ombudsman, the three other constitutional commissions, the Office of the Vice President, the Senate, the House of Representatives, the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), and executive agencies collecting revenues and managing big budgets and big contracts. To audit the processes and practices the agencies employ in dealing with pleas for information, the PCIJ filed 35 requests for copies of the Statement of Assets, Liabilities and Net Worth (SALN), personal data sheets (PDS) or curriculum vitae, and for some agencies, specific documents and data sets.
interns. Throughout the audit period from September 2010 to April 2011, the PCIJ also documented how and who from the agencies responded to the requests, how many days or weeks it took them to grant the requests, and in what manner or form they did. The audit yielded results that surprised and disappointed at the same time, such as the integrity agencies turning out to be more secretive about their SALNs, as well as some agencies being more ready to share the SALNs of other officials they have in custody but not the SALNs of their own agency bosses. Only 20 requests were granted, making for a poor 57-percent approval rate. Several of these approvals also took place well beyond the 10 working days deadline in law for officials and agencies to act on requests for SALNs, and the 15 working days deadline in law for them to act on requests for other documents.
Government Response to Requests Made by PCIJ from September 2010 to April 2011
A total of 45 request letters were faxed or delivered to the agencies, and in all cases assisted by a total of 149 follow-up calls to the agencies made by the PCIJ staff and
Summary of Requests Made by PCIJ from September 2010 to April 2011
Source: PCIJ Request Log as of April 29, 2011
27
SALNs: SOME ARE MORE OPEN THAN OTHERS How Agencies Responded to Asset Disclosure Requests of the PCIJ (Sept. 2010-Apr. 2011) OFFICE/AGENCY Executive Branch Office of the President Approved release of 2010 SALNs; Release of 2011 SALNs pending Office of the Vice President Forwarded request to Ombudsman National Economic and Develop- Forwarded request to Ombudsman ment Authority Department of Finance Approved, complete Bureau of Internal Revenue Pending approval Department of Interior and Local Approved, pending release Government Department of National Defense Forwarded request to Office of the President Constitutional Commissions Commission on Elections Only Commissioner Sarmiento released SALN; Other commissioners, pending action Civil Service Commission Requests for SALNs of CSC officials denied, pending release of CSC guidelines; Guidelines published April 13, 2011 imposed new requirements for release of SALNs; HOWEVER, requests for SALNs of Ombudsmen officials approved Denied, no action Release of SALNs of Ombudsman and deputy ombudsmen pending approval of Ombudsman Gutierrez; However, requests or SALNs of local officials approved though incomplete by Ombudsman Offices for Luzon, Visayas and Mindanao RESULTS
Commission on Audit Office of the Ombudsman
28
OFFICE/AGENCY Legislative Branch Senate House of Representatives
Approved release of SALNs, complete Approved release of SALNs for 2008-2009 of members of 14th Congress only in March 2011; earlier PCIJ requests made in 2008 and 2009 denied Forwarded request to Ombudsman and Civil Service Commission Pending approval
RESULTS
Uniformed Services Armed Forces of the Philippines

MORE DOCUMENTS, MORE REQUESTS
while many others keep their doors shut seem rooted in one factor: While President Republic Act No. 6713 or the Code of Con- Aquinos policy of transparency in the conduct and Ethical Standards for Public Of- duct of government affairs has largely been ficials and Employees provides a general verbalized, it has not been operationalized. rule on access to information. Section 5 of The result is an incoherent picture of access to the Code states: All public documents must information practices across the bureaucracy. be made accessible to, and readily made for inspection by, the public within reasonable Documents uploaded online by the departworking hours. ments of Budget and Management and of the Interior and Local Government are thus far Why some officials promptly open doors to the few practical testimonies to transparency requests for SALNs and other documents of the Aquino government. Peoples right to know
Philippine National Police
Denied release of SALNs of lawmakers filed in June-July 2011, or upon assumption of office in 15th Congress
How Agencies Responded to PCIJs Requests for Other Documents (Sept. 2010-Apr. 2011) OFFICE/AGENCY Department of Budget and Managements Fiscal Planning Bureau Department of Social Welfare and Development
RESULTS Approved requests, complete release of documents Approved, complete
29
Another factor could well be the indecisiveness that Aquino and his officials have shown toward the proposed Freedom of Information (FOI) Act, which could set the standards and procedures to enable the citizens right to know that has been guaranteed as early as 24 years ago by the 1987 Constitution. The charter mandates Congress to enact the FOI bill, but it has taken advocates of the law 14 years to file and refile, then file and refile again, FOI bills in the last four successive Congresses.
OFFICE/AGENCY National Economic and Development Authority-Public Investment Staff Department of Finance-International Finance Group Bureau of Internal Revenue Comelec Law Department Comelec Education and Information Department Sandiganbayan Department of Trade and Industry Securities and Exchange Commission
under just-resigned Merceditas N. Gutierrez as having become more alike in terms of their access to information practices in recent months. In both Malacaang and the Ombudsman, new and additional administrative barriers to access have lately been imposed. Malacaang and the Office of the Vice President also did not disclose the SALN of President Aquino and Vice President Jejomar Binay, respectively; it merely flipped and tossed the PCIJs request to the Office of the Ombudsman.
RESULTS Approved, incomplete release of documents Approved, incomplete Approved, complete Approved, complete Approved, complete Approved, complete Approved, incomplete Approved, pending release
In the past several months, meanwhile, the secretaries of Aquinos Communications Group have voiced the supposed concerns of some Cabinet members about the FOI bill that the president has not included in the list of priority legislation he submitted to Congress. PNoy, Merci alike
Thus, while it was most disappointing, it was not much of a surprise that the PCIJ audit showed the Office of the President under Aquino and the Office of the Ombudsman 30
At the Ombudsman under Gutierrez, though, SALN requestors had been sure to go through long, circuitous processes before a request is approved. For instance, since last Feb. 2, the Ombudsman has not acted on the PCIJs requests for copies of the SALNs of its senior officials, including Gutierrez and her deputy ombudsmen. The Office would also simply not give copies of Gutierrezs SALNs, until Gutierrez herself had approved it; no copies of the resigned Ombudsmans SALNs could be found even in the Office of the President.
Yet when it came to requests for copies of the SALNs of governors and mayors, the Ombudsmans regional offices (Luzon, Visayas, and Mindanao) acted quickly and nearly completely. It would therefore seem like the Ombudsman is more willing to release such information so long as these do not involve its own senior officials. Palace imposes barriers
Ironically, Amorado sent the response even if the Records Office does not have on file copies of the documents requested, the PCIJ found out.
To ferret out the SALNs of Ombudsman Gutierrez and her predecessors, PCIJ last February tried writing to Executive Secretary Paquito N. Ochoa Jr. requesting for copies of the SALN and personal data sheet (PDS) or curriculum vitae (CV) of the previous and current Ombudsmen.
This recent encounter is very much unlike PCIJs experience with Malacaang six months ago. As a regular update to PCIJs library files of the SALN and PDS of government officials and employees, PCIJ then made a request for the SALN filed upon assumption of the new administrations Cabinet members.
Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act requires every public officer to file his/her SALN with the office of the department head. The head of department of an independent office in turn must Apparently, however, the Office of the Presifile with the Office of the President. dent has since adopted new guidelines on the release of SALNs and now imposes a slew of More than a month later, PCIJ received a let- documentary requirements that require sevter from Senior Deputy Executive Secretary eral documents from the requestor before inJose Amor M. Amorado saying that the data formation would be made available. being requested were available for reproduction at the Malacaang Records Office. And so instead of taking the lead in pushing for transparency in government, the Office But to comply with laws and administra- of the President seems to be following the tive issuances related to the disclosure of footsteps of other state agencies that would SALNs, Amorado said the requestor would rather keep documents close to their chests. need to present a valid identification card, a certification of her affiliation with PCIJ, PCIJs Closed commissions registration documents (e.g., Securities and Exchange Commission [SEC] Registration, Indeed, even the so-called integrity inBureau of Internal Revenue [BIR] Registra- stitutions and three other constitutional tion, and Mayors Permit), and an executive bodies the Commission Audit (COA), the summary sufficiently describing the use of Commission on Elections (Comelec), and the SALNs requested. the Civil Service Commission (CSC) are
On Sept. 8, 2010, two days after the request was sent, Assistant Executive Secretary Jed M. Eva called to inform PCIJ that its request is being processed and that the SALNs requested have yet to be collected. Although incomplete, PCIJ managed to get 11 of the 32 requested SALNs without any additional documentary requirement.
31
among the most secretive and the slowest to The CSC says the high court has affirmed respond to requests for copies of the SALNs that government offices having custody of their top officials. of public documents, like SALNs, may prescribe reasonable rules and regulaElections Commissioner Rene Sarmiento tions relative to the manner with which was the only one who gave the PCIJ a copy the public may examine/scrutinize/reof his SALN. The requests filed with his fel- produce/copy the subject documents. low commissioners still await action. In the last five years, the justices of the But at least Comelec did not go the way of Supreme Court have themselves stubbornly COA and CSC, both of which flatly denied the refused to share copies of their SALNs and PCIJs requests. Weeks later, in response to PDS. In 2006, the court issued a policy a clarificatory letter from the PCIJ, the CSC restricting public access to the SALNs said its Resolution No. 1100356 that was of its justices, all other magistrates, and supposedly published in a newspaper last all court personnel. Aquinos summons Apr. 13 prescribes guidelines for the release to transparency has hardly nudged the of the SALNs filed with the CSC. justices to reverse their self-serving policy, which remains in force to this day. The guidelines require requesting parties to submit IDs and endorsement from his/ Exemplars and excuses her employer or school dean or secretary (for students); then and only then would More open regimes are taking shape, howthe personnel or archives staff of the CSC ever, in a handful of executive departments review the request. The reviewer, however, where Aquino has installed new officials. may only recommend the approval or dis- The performers in terms of access to SALNs approval of the request, because the final of senior officials are the Department of Indecision apparently rests still with the CSC terior and Local Government (DILG) and the directors. And finally, if the request is ever Department of Finance (DOF). approved, the guidelines require requestors to pay a handsome fee of P200 per SALN. The National Economic and Development Authority (NEDA) and the Department of Perhaps because the SALNs requested are Social Welfare and Development (DSWD) not of its own officials and because the re- are also comparably quick when requests quest was made before the new guidelines for other documents are concerned. But were adopted, CSC had previously been then NEDA merely flipped and tossed to the most prompt and helpful in giving PCIJ cop- Ombudsman the PCIJs request for SALNs. ies of the SALNs of the deputy ombudsmen. It could not, however, produce any for Om- To be sure, a corps of professional staff budsman Gutierrez. personnel, clear procedures and mechanisms for responding to public requests for Interestingly, the new CSC guidelines documents, and the tone at the top from cite rulings of the Supreme Court in two agency heads with solid grounding in the cases as rationale for the restrictions. laws on transparency and accountability 32
have helped transform these agencies into Last year, the FOI bill came just two steps paragons of access to information practices. shy of passing into law in the 14th Congress, largely on account of dogged legislative Conversely, the absence of the these fac- work by Liberal Party lawmakers like Aquitors, as well as confused and confusing sig- no, then a senator with the opposition bloc. nals and compliance by Malacaang and other superior agencies, have lent the bad The Senate had ratified the committee reperformers excuses to linger in secrecy port but the House unto its last session day and remain hostile to public requests for in May 2010 ignored and dribbled the report, saying it did not have the required quodocuments. rum to ratify. The media later exposed this These include the AFP, PNP, as well as the De- to be untrue as video footage showed that partment of National Defense (DND), which on that day at the House there were more seem stuck in the practices of old. The AFP lawmakers present to constitute a quorum. referred the PCIJs request for the SALNs of the generals to the Ombudsman and the On Jun. 16, 2010, asked by reporters whethCSC; the DND to the Office of the President; er he would assign priority to the FOI Act and the PNP said it was still working on once he becomes President, Aquino had rethe request that PCIJ filed nearly three plied: Yes. Iba pa rin yung may force of law months ago. (It would be better if there is the force of law). That would be, I think, the more comAs for Congress, until recently, the Senate plete route. and the House of Representatives were poles apart in how they managed requests for While the House of the 14th Congress copies of SALNs. From 2007 to the present, mocked the FOI bill by feigning the absence the Senate has consistently responded of a quorum, Aquinos statement that he promptly and fully to requests for SALNs. would stand foursquare behind the FOI Act Since 2009, the House of the 14th Congress assured the bills advocates. under Speaker Prospero C. Nograles Jr. had consistently refused to provide copies of its That statement, however, would be Aquinos lawmakers SALNs. last public stand in favor of the FOI bill in the succeeding 11 months. With reporting Last March, however, the House finally and research by Karol Anne M. Ilagan, Che opened its records. But that was only after de los Reyes, and Ojie Sarmiento of PCIJ; and the PCIJ furnished the Ombudsman and with research assistance from PCIJ Interns the CSC copies of its requests, and cited a Aencille Santos, Kim Chermaine Baares, AJ markedly different regime of openness in Priela, Henor Gotis, Eric Rivera, and David the Senate. Faustino, PCIJ, May 2011
33
Triggers & barriers to access

Karol Anne M. Ilagan May 1, 2011
on SALN requests, the two institutions got the work done.
A CLEAR, working system with specific procedures and dedicated staff personnel triggers quick, correct, and complete The Office of the President and the Omaction by some government agencies on budsman are the stellar examples of restrictive, inefficient access to information access to information requests. regimes in place today. But the absence of such a system in most other agencies, as well as the lack of fully defined rules and procedures that all agencies must observe in responding to requests, remain barriers to access.
In contrast, most other agencies moved exceedingly slow on similar requests, flipped and tossed the requests to other agencies, or simply ignored and rebuffed the requests outright.
Yet another is the Philippine National Police. Over the last three months since Feb. 18, the PNP has passed around the PCIJs request for SALNs to at least five PNP units: from the office of the The bad results: inordinate delays, token PNP director-general to the office of the compliance with lawful deadlines, disre- PNP Internal Affairs Service, to the ofgard for the Constitutions guarantees of fice of the PNP Chief of the Directorial the publics right to know, and a general Staff, to the PNP Public Information Office slide to secrecy, not transparency, in most (PIO), and finally, to the PNP Directorate of the bureaucracy under the Aquino ad- for Personnel and Records Management (DPRM). ministration. For instance, requests for copies of the Statement of Assets, Liabilities and Net Worth (SALN) that the PCIJ filed with the secretaries of Finance and Interior and Local Government drew quick and correct action. Three months and five offices later, the PNP has yet to provide the PCIJ a single page of a single SALN that any of its top cops had filed.
On Apr. 26, or 10 weeks after the PCIJ request was filed, the PNPs PIO told PCIJ The requests were forwarded promptly that the request should be sent to the to the departments respective person- PNP-DPRM, where a staff personnel told nel units that had copies of the docu- the PCIJ that it is the PNP-PIO that should ments. The personnel units approved the decide on the matter. The PNP-DPRM requests like these were regular office staff said the information enrolled in the transactions. Ahead of the 10 working SALNs are sensitive. The employee later days deadline in law for agencies to act advised to the PCIJ to write another letter
34
addressed to the PNP chief, with a note of This resort to red tape also marked the action of the Office of the Ombudsman to attention to the DPRM head. similar requests that the PCIJ had sepaMultiple layers of bureaucracy, buck- rately filed with the nations top integrity passing, inordinate delays, and seem- agency. Under just-resigned Ombudsman ing indifference to or ignorance of the Ma. Merceditas N. Gutierrez, the agency relevant laws on the part of some agen- had reverted to old, restrictive procecies all these barriers are sure to test dures in dealing with requests for SALNs. the patience and stamina of those filing requests for access to SALNs and other The requests filed with Gutierrezs office were referred first to the Office of Legal Afdocuments. fairs so it could study and recommend acThis was the situation in the House of tion on the same. The catch was that the Representatives for three years running recommendations of the Office of Legal Afunder Speaker Prospero Nograles Jr. of fairs had to be sent back to Gutierrez for the 14th Congress, which lingers in part her final approval. to this day under Speaker Feliciano BelDespite these restrictive and redundant monte Jr. of the 15th Congress. procedures, however, the PCIJ encounThe PCIJs request for the SALNs of tered some officials who demonstrated House members made the rounds and exemplary openness and respect for the went back and forth in multiple office publics right to know. units of the chamber the office of the Secretary-General, which forwarded the This honored and honorable roster inrequest to the House Legal Division and cludes Commission on Elections (Cometo the offices of all the members of the lec) Commissioner Rene V. Sarmiento and three House members: Batanes Rep. HeneHouse. dina R. Abad, Lanao del Sur Rep. MohamThe Legal Division later sent back the med Hussein P. Pangandaman, and Abante PCIJ request to the Secretary General for Mindanao Party-List Rep. Maximo B. Roher approval. After this was granted, the driguez Jr. Without any need for prodding, Secretary Generals Office moved a trans- all four, on their own volition, gave the PCIJ mittal letter with its stamp of approval copies of their SALNs via fax or mail. They did so even while their agencies, the Comto the House Records Division. elec and the House, had yet to act fully on But the run-around did not stop there. the PCIJs requests for SALNs. Follow-up calls had to be made with the House Records Office before it finally ac- In the case of the Armed Forces and some knowledged the Secretary Generals ap- executive departments, avoidance of acproval and actually allowed the release tion and retreat to higher ground or superior agencies defined the token action that of the SALNs for reproduction.
35
agencies made on the PCIJs requests for SALNs. Their usual resort was to refer the requests to either the Office of the President, the Civil Service Commission, or the Ombudsman.
But while some agencies are secretive about the SALNs of their top officials, they are also more open to granting requests for other documents that they hold in custody. The Comelec generously shared documents on the election spending reports filed by candidates in the May 2010 elections, the Department of Social Welfare and Development and the Department of Budget and Management documents on the Conditional Cash Transfer Program, the Sandiganbayan databases on the status of graft and corruption cases filed before its courts, and the Securities and Exchange Commission and Department of Trade and Industry on certificates of registration of business entities. Amid these hopeful signs of openness though are hints of mistrust, indifference to transparency laws, or even contempt toward people seeking access to information that some civil servants apparently harbor still. In exchanges with the PCIJ staff, some have made side comments that disclosing the SALNs may pose security risks for their officials, that the documents may only be released through a court order, or that the documents supposedly contain confidential information. PCIJ, May 2011
36
CONCLUSION AND RECOMMENDATIONS
During the Center for Media Freedom and Responsibilitys (CMFR) Policy Forum on Freedom of Information (FOI), many participants were concerned with the number of exceptions in the draft bills.
The consensus during the forum was the Philippines needs an FOI Act (FOIA) as an effective tool to expose wrongdoing in the government. But the participants agreed that the principle of maximum disclosure should be observed, and limitations and exceptions to access narrowly defined and strictly construed.
For the practice to be guaranteed, some of the participants asked that the procedure for access be shortened and no fees charged for the information requested. Bayan Muna Party List sectoral representative Teodoro Teddy Casio, author of one version of the FOI bill, said an additional commission will create another layer in government bureaucracy and should be reviewed.
Other participants suggested the clarification of the role of the Information Commission (IC). Lawyer Theodore Ted Te of the Free Legal Assistance Group agreed, but said that if an IC is unavoidable, its powers should not overlap with those of established commissions. He added that the appointment of the members of the IC should be guided by inputs from civil society organizations and FOI advocates to help assure its independence. CMFR and the participants agreed that public vigilance was crucial. They asked FOI advocates to review the coalitions public information and awareness campaign on the issue. One participant suggested translating the different versions of the bill or any related material into several languages to make it accessible to ordinary folk. The FOI issue is not only relevant to the media but more for the benefit of the citizens. Also important to note, the longer term implication of having an FOI law. The advocacy does not stop with the passage of the bill.
37
CMFR POLICY FORUM ON THE FREEDOM OF INFORMATION

Speakers
Carolyn O. Arguillas Editor MindaNews
Melinda Quintos de Jesus Executive Director Center for Media Freedom and Responsibility (CMFR) Nepomuceno Malaluan Co-convenor Right to Know. Right Now! Coalition
Malou Mangahas Executive Director Philippine Center for Investigative Journalism Ronald U. Mendoza Executive Director Asian Institute of Management Policy Center
Lorenzo Erin R. Taada III Representative 4th District, Quezon House of Representatives Luis V. Teodoro Deputy Director CMFR
Manuel L. Quezon III Undersecretary Presidential Communications Development and Strategic Planning Office
38
Participants
ABS-CBN Broadcasting Corp. Jeffry Cario Oscar Domingo Miguel Armando Lim International Center for Innovation, Transformation and Excellence in Governance (InciteGov) Niel Lim
Asian Institute of Management J.M. Luz
Asian Institute of Management Policy Center Lai-Lynn Barcenas Bayan Muna Party List Carl Alo Teodoro Teddy Casio Bulatlat Ronalyn Olea Department of Education Epifania Villafuerte Eastern Visayas Tri-Media Association Pedro Rico Cajife III Embassy of Canada Tiffany Urrutia GMA Network Inc. J. Alwyn Alburo Steve Dailisan Don Morales
Ayala Young Leaders Alumni Association Joseph Guinto Navarro
Kapisanan ng mga Brodkaster ng Pilipinas (Association of Broadcasters of the Philippines) Reynaldo Rey Hulog Ruperto Jun Nicdao Jr. Makati Business Club Patrick Chua Manuel L. Quezon University Nelvin Bustillo Lalin-Radhika Dissanayaka Mark Lloyd Ranque Kenneth Rentutar Bayani Santos Jr. Raymond Sebastian Miriam College Cynthia Ballat Mae Ann Chua Michelle Gadja
Minimal Government Thinkers, Inc. Nonoy Oplas
Free Legal Assistance Group Theodore Ted Te
National Anti-Poverty Commission Ferdinand Hombrebueno National Union of Journalists of the Philippines Rowena Paraan Philippine Center for Investigative Journalism Ed Lingao
39
Philippine Daily Inquirer TJ Burgonio Isagani Yambot
Quezon City Polytechnic University Mary Joy Vias Solar News Monica Macarida Carolyn Ramoran Summit Media Maita de Jesus
Presidential Communications Development and Strategic Planning Office Donna Cruz Polytechnic University of the Philippines Elaine Fallarcuna Cherry Pebre
Presidential Communications Operations Office Lesley Cordero Philippe Cortes Chris Lumanlan
Sustainable Agriculture & Environment Development Association Giovanni Villafuerte Transparency and Accountability Network Vincent Lazatin Adrienne Nicole Bernal Paul How Dulce Morales Paul Harris Santos
Public Services Labor Independent Confederation (PSLINK) Annie Geron Sheryl May Ramos Jose Florante Singson
World Bank-AIM Team Energy Center Mindanao Bridging Leaders Program Miren Sanchez Facultad
40
ANNEX
FIFTEENTH CONGRESS REPUBLIC OF THE PHILIPPINES FIRST REGULAR SESSION
) ) ) House Bill No. 53
HOUSE OF REPRESENTATIVES
The days of the secret laws and unpublished decrees are over. This is once again an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has to be so if our country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them The preceding paragraph came from a Supreme Court decision written by Justice Isagani Cruz on the case filed by my grandfather, the late Senator Lorenzo M. Taada, together with Abraham F. Sarminiento and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) against Jun C. Tuvera, then serving as Executive Assistant to President Ferdinand Marcos, among others.
Introduced by Representative Lorenzo R. Taada III
-Justice Isagani Cruz Potente Taada vs. Tuvera (No. L-63915, 29 December 1986)
The trigger behind the filing of the case was the numerous Letters of Instructions and Presidential Decrees that remained unpublished during the Marcos era from which arrest and other anti-people impositions of the State were made to appear legal. These measures were literally done behind our peoples backs and being used against us. The Supreme Court asserted that the prior publication of laws before they become effective cannot be dispensed with.
These days, publication of laws before they become effective is a mere matter of course. But during the dark days of Martial Law, such was the struggle that we had to endure just to gain, little by little. Some semblance of democracy which we all cherish. This bill hopes to add and enhance our democratic ideals and further empower our people. It is a product of several discussions in the past Congress, ideals distilled between and among NGOs, POs, media practitioners, the academe and of course legislators. The highest
41
stage it has reached so far is the Bicameral Conference Committee Report ratified in the Senate but not in the House of Representatives in the final session day of the 14th Congress reportedly due to lack of quorum. Suffice it to say that this bill is long overdue. While the 1987 constitution has occurred for the Filipino people, in Section 7 of the Bill of Rights, their right to be informed on matters of public concern, it is far from complete. Its effective implementation has for the past two decades suffered from the lack of the necessary substantive and procedural details legislature can provide. In terms of citizens access to information, the bill responds to the following problems:
The bill provides for the following:
Absence of a uniform, simple and speedy access procedure While in legal theory there is no discretion in giving access to information, it remains discretionary in practice. There is still untested, if not insufficient, basis of sanctions in cases of violation of the right of information. The remedy to compel disclosure, primarily judicial, is inaccessible to the general public. Governments record-keeping system is a very poor state. There is a very low level of bureaucratic commitment to openness and The cost of access to certain information is excessive. An expansive scope in terms of government agencies as well as information covered. A clear, uniform and speedy procedure for access to information A proscription against excessive costs of access to information A system of accessible and speedy remedies that a citizen who has been denied access to information may resort to. A mandate to promote a culture of openness within government and Clear administrative, criminal and civil liability for violation of the right to information
This bill is the very enabling law that the Constitution so mandated legislature to provide more than 20 years ago. I see no reason for any delay in the passage of this measure. I therefore enjoin al members of the 15th Congress to pass this expeditiously knowing fully well the right that we are giving our people. Let this be our very first legacy under the new dispensation. LORENZO R. TAADA III Representative th 4 District, Quezon 42
FIFTEENTH CONGRESS REPUBLIC OF THE PHILIPPINES FIRST REGULAR SESSION
) ) ) House Bill No. 53
HOUSE OF REPRESENTATIVES
Introduced by Representative Lorenzo R. Taada III AN ACT IMPLEMENTING THE RIGHT OF THE PEOPLE TO INFORMATION ON MATTERS OF PUBLIC CONCERN GUARANTEED UNDER SECTION SEVEN, ARTICLE THREE OF THE 1987 CONSTITUTION AND THE STATE POLICY OF FULL PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS INVOLVING PUBLIC INTEREST UNDER SECTION TWENTY-EIGHT, ARTICLE TWO OF THE 1987 CONSTITUTION, AND FOR OTHER PURPOSES Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:
SECTION 1. Short Title. This Act shall be known as the Freedom of Information Act of 2010.
SEC. 2. Declaration of Policy. The State recognizes the right of the people to information on matters of public concern, and adopts and implements a policy of full public disclosure of all its transactions involving public interest, subject to the procedures and limitations provided by this Act. This right is indispensible to the exercise of the right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making. Sec. 3. Coverage. This Act shall cover all government agencies as defined under Section 4 of this Act. SEC.. 4. Definition of Terms. As used in this Act: Information shall mean any knowledge, record, document, paper, report, letters, contract, minutes and transcripts of official meetings, maps, books, photographs, data research material, film, sound and video recordings, magnetic or other tapes, electronic data, computer stored data, or any other like or similar data or material recorded, stored archived in whatever form or format, which are made, received or kept in or under the
43
control and custody of any government agency pursuant to law, executive order, rules and regulations, ordinance or in connection with the performance or transaction of official business by any government agency.
Government agency shall include the executive, legislative and judicial branches as well as the constitutional bodies of the Republic of the Philippines including, but not limited to, the national government and all its agencies, departments, bureaus, offices and instrumentalities, constitutional commissions and constitutionally mandated bodies, local governments and all other agencies, regulatory agencies, regulatory agencies, charted institutions, government-owned or controlled corporations, including whollyowned or controlled subsidiaries, government financial institutions, state universities and colleges, the Armed Forces of the Philippines, the Philippine National Police, all offices in the Congress of the Philippines including the offices of Senators and Representatives, the Supreme Court and all lower courts established by law. Public record shall include information required by law, executive orders, rules, or regulations to be entered, kept and made publicly available by a government agency.
Official records shall refer to information produced or received by a public officer or employee, or by a government agency in an official capacity or pursuant to a public function or duty, and is not meant to be a stage or status of the information. SEC. 5. Presumption. There shall be a legal presumption in favor of access to information. Accordingly, government agencies shall have the burden of proof of showing by clear and convincing evidence that the information requested is exempted from disclosure by this Act. SEC. 6 Access to Information. Government agencies shall make available to the public for scrutiny, copying and reproduction in the manner provided by this Act, all information pertaining to official acts, transactions or decisions, as well as government research data used as basis for policy development, regardless of their physical form or format in which they are contained and by whom they were made.
SEC. 7 Exceptions. Subject to the qualifications set forth in Section 8 of this Act, access to information may be denied when:
(a) The information is specifically authorized to be kept secret under guidelines established by an executive order, and in fact properly classified pursuant thereto: Provided, That 1.) The information directly relates to national defense and its revelation will cause grave damage to the internal and external defense of the State; or 2.) The information requested pertains affairs of the Republic of the Philippines
44
(b) The information requested pertains to internal and external defense and law enforcement, when the revelation thereof would render a legitimate military or law enforcement operation ineffective, unduly compromise the prevention, detection or suspension of a criminal activity, or endanger the life or physical safety of confidential or protected sources or witnesses, law enforcement and military personnel or their immediate families. Information relating to the details of administration, budget and expenditure, and management of the defense and law enforcement agencies shall always be accessible to the public; (c) The information requested pertains to the personal information of a natural person other than the requesting party, and its disclosure would constitute a clearly unwarranted invasion of his or her personal privacy, unless it forms part of a public record, or the person is or was an official of a government agency and the information relates to his or her public function, or the person has consented to the disclosure of the information;
Provided, further, That the executive order shall specify the reasonable period by which the information shall be automatically declassified or subject to mandatory declassification review, and that any reasonable doubt as to classification and declassification shall be settled in favor of the right to information;
when its revelation unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines with one or more states with which it tends to keep friendly relations:
(d) The information requested pertains to trade, industrial, financial or commercial secrets of a natural or juridical person other than the requesting party, obtained in confidence by, and /or filed with a government agency, whenever the revelation thereof would seriously prejudice the interests of such natural or juridical person in trade, industrial, financial or commercial competition, unless such natural or juridical person has consented to the disclosure of the information; (f) The information requested is exempted by law or the Constitution, in addition to those provided in this section; (g) The information requested is obtained by any committee of either House of Congress in executive session, whenever such information falls under of the foregoing exceptions; and (h) The information requested consists of drafts of decision by any executive, administrative, judicial or quasi-judicial body in the exercise of their adjudicatory functions
(e) The information requested is privileged from production in legal proceedings by law or by the Rules of Court, unless the person entitled to the privilege has waved it;
45
whenever the revelation thereof would reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the administration of justice.
For letters (b) to (h) of this section, the determination whether any of these grounds shall apply be the responsibility of the head of office of the government agency in custody or control of the information, or any responsible central or field officer/s duly designated by him. SEC. Qualifications. Even if the information falls under the exceptions set forth in the preceding section, access to information shall not be denied if: (a) The information may be reasonably served from the body of the information which would be subject to exceptions;
(b) The public interest in the disclosure outweighs the harm to the interest sought to be protected by the exception; or SEC. 9. Procedure of Access. (a) Any person who wishes to obtain information shall submit a request to the government agency concerned personally, by mail, or through electronic means. The request shat state the name and preferred contact information of the requesting party, and reasonably describe the information required, the reason for the request of the information and the preferred means by which the government agency shall communicate such information such information to the requesting party: Provided, That the stated reason shall not be used as a ground to deny the request or to refuse the acceptance of the request, unless such reason is contrary to law. If the request is submitted personally, the requesting party shall show his current identification card issued by any government agency, or government or private employer or school, or a community tax certificate. If the request is submitted by mail or through electronic means, the requesting party may submit a photostatic or electronically scanned copy of the identification, or other convenient means as determined by the agency.
(c) The requesting party is either House of Congress, or any of its Committees and the disclosure is to be made in executive session, unless the disclosure will constitute a violation of the Constitution.
(b) The request shall be stamped by the government agency, indicating the date and time of receipt and the name, rank, title and position of the receiving public officer or employee with the corresponding signature, and a copy thereof furnished to the requesting party. In case the request is submitted by electronic means, the government agency shall provide for an equivalent means by which requirements of this paragraph shall be met.
46
(c) The request may indicate the following preferred means of communication:
(e) The government agency shall comply with such request within seven (7) working days from the receipt thereof. 1. To search for and collect the requested information from field facilities or other establishments that are separate from the office processing the request; 2. To search for, collect and appropriately examine a voluminous amount of separate and distinct information which are demanded in a single request; 3. Consultation, which shall be conducted in all practicable speed, with another government agency or among two (2) or more components of the government agency having substantial interest in the determination of the request; and 4. To consider fortuitous events or other events due to force majeure or other analogous cases.
(d) A government agency may communicate the information requested in a form other than the preferred means whenever such preferred means would unreasonably interfere with the effective operation of the agency, or be detrimental to the preservation of the record.
1. A true copy of the information in permanent or other form; 2. An opportunity to inspect the information, using equipment normally available to the government agency when necessary; 3. An opportunity to copy the information using personal equipment; 4. A written transcript of the information contained in a audio or visual form; 5. A transcript of the content of an information requested, in print, sound or visual form, where such transcript is capable of being produced using equipment normally available to the government agency; 6. A transcript of the information from shorthand or codified form; or 7. Other reasonable means or format.
(f) The time limits prescribed in this Section for the production of the requested information may be extended whenever there is a need for any of the following:
Sec.10. Access Fees. Government agencies may charge a reasonable fee to reimburse the actual cost of reproduction, copying or transcription and communication of the information requested.
(g) The government agency shall, in writing or through electronic means, notify the person making the request of the extension, setting forth the reasons for such extension and the date when the information shall be made available: Provided, That no such notice shall specify a date that would result in an extension of more than fifteen (15) working days from the original deadline.
47
Sec. 11. Notice of Denial. If the government agency decides to deny the request, in whole or in part, it shall, within seven (7) working days from the receipt of the request, notify the person making the request of such denial in writing or through electronic means. The notice shall clearly indicate the name, rank, title or position of the person making the denial, and the grounds for the denial. In case the denial is by reason of a claimed exception, the denial shall state clearly the legitimate aim or interest sought to be protected in the confidentiality, and the facts and circumstances invoked showing the substantial harm to, or frustration of, the legitimate aim or interest that will result in the disclosure of the information. Failure to notify the person making the request of the denial, or of the extension, shall be deemed a denial of the request for access to information. Sec. 12. Implementation Requirements. (a) For the effective implementation of this Act, all government agencies shall prepare a Freedom of Information Manual, with the end in view of facilitating easy access to information, which shall include the following: 1. The location and contact information of the head, regional, provincial and field offices, and other established placed where the public can obtain information and submit requests; 2. The type of information it generates, produces, holds and/or publishes; 3. A description of its record-keeping system; 4. The person or office responsible for receiving requests for information; 5. The procedure for the filling of requests personally, by mail, or through the identified electronic means; 6. The standard forms for the submission of request and for the proper acknowledgement of the request; 7. The process for the disposition of the request, including the routing of the request to the person or office with the duty to act on the request, the decision-making, and the grant or denial of access and its implementation; 8. The procedure for the administrative appeal of any denial for access to information; 9. The schedule of fees; 10. The process and procedure for the mandatory disclosure of information under Section 14 of this Act; 11. Should the agency lack the capacity to comply with Section 14(a) of this Act, a brief description of its plan to facilitate compliance within three (3) years from the approval of this Act; and 12. Such other information, taking into consideration the unique characteristics of an agency, that will help facilitate the effective implementation of this Act.
(b) The Judiciary shall prepare a similar manual as directed by the Supreme Court;
(c) The foregoing information shall also be posted in its website and bulletin boards, and shall be regularly updated;
48
(d) In no case shall the absence of the aforementioned Manual be a reason for the denial of any request for information made in accordance with this Act. Sec 13. Remedies in Cases of Denial. (a) In all government agencies other than the judicial branch (1) Every denial of any request for access to information may be appealed to the person or office next higher in authority, following the procedure mentioned in Section 12(a)(8) of this Act: Provided, That the appeal must be filed within fifteen (15) calendar days from filing. Failure of the government agency to decide within the aforestated period shall constitute a denial of the appeal; and (2) Instead of appealing or after the denial of the appeal, the person denied access to information may file a verified complaint with the Office of the Ombudsman, praying that the government agency concerned be directed to immediately afford access to the information being requested. Such complaint shall be resolved by the Office of the Ombudsman within sixty (60) calendar days from filing, or earlier when time is of the essence, taking into account such factors as the nature of the information requested will become moot. The Office of the Ombudsman shall promulgate its special rules of procedure for the immediate disposition of complaints filed pursuant to this Section. Unless restrained or enjoined, the decisions of the Office of the Ombudsman shall be immediately executory, without prejudice to review in accordance with the Rules of Court. (3) Instead of filing a complaint with the Office of Ombudsman, whenever a request for information is denied originally or an administrative appeal, the requesting party may file a verified petition for mandamus in the proper court, alleging the facts with certainty and praying that judgment be rendered ordering the respondent, immediately or at some other time to be specified by the court, to disclose the information and to pay the damages sustained by the requesting party by reason of the denial. The procedure for such petition shall be summary in nature. (4) In resolving a complaint or petition bought under the preceding paragraphs (2) and (3), the Ombudsman or the court is empowered to receive the information subject of a claim of exception under Section 7 herein and examine then in camera to determine the sufficiency of the factual and legal basis of such claim, when such sufficiency cannot be reasonably determined through evidence and circumstances apart from the information.
(b) In the Judicial Branch The Judiciary shall be governed by such remedies as promulgated by the Supreme Court. (c) The remedies under this section are without prejudice to any other administrative, civil or criminal action covering the same act.
49
(d) The remedies available under this Act shall be exempt from the rules on non-exhaustion of administrative remedies and the application of the provisions of Republic Act No. 9285, otherwise known as the Alternative Dispute Resolution Act of 2004. Sec. 14. Mandatory Disclosure of Transactions Involving Public Interest.
(e) In case the requesting party has limited or no financial capacity, the Public Attorneys Office shall be mandated to provide legal assistance to the requester in availing of the remedies provided under this Act. (a) Subject to Sections 7 and 8 of this Act, all government agencies shall upload on their websites, which shall be regularly updated every fifteen (15) days, all the steps, negotiations and key government positions pertaining to definite prepositions of the government, as well as the contents of the contract, agreement or treaty in the following transactions involving public interest:
(1) Compromise agreements entered into by a government agency with any person or entity involving any waiver of its rights or claims; (2) Private sector participation agreements or contracts in infrastructure and development projects under Republic Act No. 6957, as amended by Republic Act No. 7718, authorizing the financing, construction, operation and maintenance of infrastructure projects; (3) Procurement contracts entered into by a government agency; (4) Construction or concession agreements or contracts entered into by a government agency with any domestic or foreign person or entity; (5) Loans, grants, development assistance, technical assistance and programs entered into by a government agency with official bilateral or multilateral agencies, as well as with private aid agencies or institutions; (6) Loans from domestic and foreign financial institutions; (7) Guarantees given by any government agency to government-owned or -controlled corporations and to private corporations, persons or entities; (8) Public funding extended to any private entity; (9) Bilateral or multilateral agreements and treaties in defense, trade, economic partnership, investments, cooperation and similar binding commitments; or (10) Licenses, permits or agreements given by any government agency to any person or entity for the extraction and/or utilization of natural resources. A summary list of the foregoing information uploaded in the website shall be posted in the bulletin boards of the concerned government agency.
(b) The information uploaded in the website under the letter (a) of this Section may be withdrawn after a period of three (3) years from the time of uploading: Provided, That an abstract of the information withdrawn shall remain uploaded in the website, containing 50
(c) Should an agency lack the capacity to comply with letter (a) of this Section, the agency shall initiate a capacity-building program, or coordinate with another appropriate agency, to facilitate substantive compliance not later than three (3) years upon approval of this Act. Sec. 15. Keeping of Records. a) Government agencies shall create and/or maintain in appropriate formats, accurate and reasonably complete documentation or records of their organization, policies, transactions, decisions, resolution, enactments, actions, procedures, operations, activities, communications, documents received or filed with them and the data generated or collected. These shall include working files such as drafts or notes, whenever these have been circulated within the agency for official purpose such as for discussion, comment or approval or when these contain unique information that can substantially contribute to a proper understanding of the agency organization, policies, transactions, decisions, resolutions, enactments, actions, procedures, operations, and activities;
a brief description of the transaction and an enumeration of the information withdrawn, and indicating the dates of posting and withdrawal.
b) Government agencies shall identify specific and classes of official records in their custody or control that have continuing historical, administrative, informational, legal, evidentiary, or research value for preservation by such agencies or their legitimate successors, or for transfer to the National Archives of the Philippines. In addition, the National Archives of the Philippines shall likewise identify specific and classes of official records that it shall require agencies to preserve and transfer to it. c) In addition to the specific and classes of official records identified for preservation under letter (b) of this Section, the following shall not be destroyed: 1) Records pertaining to loans obtained or guaranteed by the government; 2) Records of government contracts; 3) The declaration under oath of the assets, liabilities and net worth of public officers and employees, as required by law; and 4) Records of official investigations on graft and corruption practices of public officers. 1) A records maintenance system for creation, selection, classification, indexing and filing of official records, that facilitates easy identification, retrieval and communication of information to the public; 2) A records maintenance, archival and disposition schedule providing a listing of records under current use, for retention by the agency, for transfer to the National Ar51
d) Government agencies shall prepare, following standards and period promulgated pursuant to Republic Act No. 9470 or the National Archives of the Philippines Act of 2007, a records management programs that includes the following:
e) In addition to its function as repository of all rules and regulations issued by agencies as provided under Book VII, Chapter II of the Administrative Code of 1987, the University of the Philippines Law Center, in coordination with the National Printing Office as the agency with exclusive printing jurisdiction over the Official Gazette, shall maintain a database, and publish the same in print in Official Gazette or in digital or online form, the following: 1) All laws of the Philippines and their amendments, from the period of the Philippine Commission to the present; 2) All president issuances from November 15, 1935 to the present, including but limited to executive orders, presidential proclamations, administrative orders, memorandum circulars, general orders, and other similar issuances; 3) A database of all appointments made by the President of the Philippines; and 4) Opinions of the Secretary of Justice.
chives, or for destruction: Provided, That destruction of the official records may be implemented only upon approval of the National Archives of the Philippines; and 3) A specifications of the roles and responsibilities of agency personnel in the implementation of such system and schedule.
Sec. 16. Promotion of Openness in Government. (a) Duty to Publish Information Government agencies shall regularly publish, print and disseminate at no cost to the public and in the an accessible form, in conjunction with R.A. 9485, or the Anti-Red Act of 2007, and through their website, timely, true, accurate and updated key information including, but not limited to: (1) A description of its mandate, structure, powers, functions, duties and decision-making processes; (2) A description of the frontline services it delivers and the procedure and length of time by which they may be availed of; (3) The names of its key officials, their powers, functions and responsibilities, and their profiles and curriculum vitae; (4) Work programs, development plans, investment plans, projects, performance targets and accomplishments, and budgets, revenue allotments and expenditures; (5) Important rules and regulations, orders or decisions: Provided, That they be published within fifteen (15) calendar days from promulgation; (6) Current and important database and statistics that it generates; (7) Bidding processes and requirements; and(8) Mechanisms or procedures by which the public may participate in or otherwise influence the formulation of policy or the exercise of its powers. (b) Accessibility of Language Form Every government agency shall endeavor to translate key information into major Filipino languages and present them in popular form and means.
52
(c) Improving Capability Every government agency shall ensure the provision of adequate training for its officials to improve awareness of the right to information and the provisions of this Act, and to keep updated of best practices in relation to information disclosure, records maintenance and archiving. Sec. 17. Criminal Liability and Administrative Liability. The penalty of imprisonment of not less than one (1) month but not more than six (6) months shall be imposed upon: (a) Any public officer or employee receiving the request under the Section 9 of this Act who shall fail to promptly forward the request to the public officer within the same office or agency responsible for officially acting on the request when such is the direct cause of the failure to disclose the information within the periods required by this Act; (b) Any public officer or employee responsible for officially acting on the request, who shall:
(c) The head of office of the government agency directly and principally responsible for the negotiation and perfection of any of the transactions enumerated in Section 14(a) of this Act, who shall knowingly refuse, to direct the mandatory posting or uploading of such transaction despite the agency capacity to implement such directive. The same penalty shall be imposed upon the public officer or employee who, despite a directive from the head of office, shall fail, to post or upload any of the transactions enumerated in Section 14(a) of this Act; (d) Any public officer or employee who shall destroy, or cause to destroy, records of information covered by Section 15(c) of this Act; (f) Any public or private individual who knowingly induced or caused the commission of the foregoing acts under this section.
1. Fail to act on the request within the periods required by this Act; 2. Knowingly deny the existence of existing information; 3. Destroy information being requested for the purpose of frustrating the requesters access thereto; 4. Claim an exception under Section 7 of this Act, or under the Constitution, when the claim is manifestly devoid of factual basis; or 5. Refuse to comply with the decision of his immediate supervisor, the Ombudsman or the court ordering the release of information that is not restrained or enjoined by a court;
(e) Any public officer who formulates policies, rules and regulations manifestly contrary to the provisions of this Act, and which policies, rules and regulations are the direct cause of the denial of a request for information; or
53
The foregoing shall be without prejudice to any administrative liability of the offender under existing laws and regulations.
Sec. 18. Act Not a Bar to Claim of Right to Information Under the Constitution. No provision of this Act shall be interpreted as bar to any claim of denial of the right to information under the Article III, Section 7 of the 1987 Constitution.
Sec. 19. Separability Clause. If, for any reason, any section or provision of this Act is held unconstitutional or invalid, no other section or provision shall be affected. Sec 20. Repealing Clause. All laws, decrees, executive orders, rules and regulations, issuances or any part thereof inconsistent with the provisions of this Act, including Memorandum Circular No. 78 dated 14 August 1964 (Promulgating Rules Governing Security of classified Matter in Government Offices), as amended, and Section 3, Rule IV of the Rules Implementing Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), are deemed repealed. Sec 21. Effectivity. This Act shall take effect fifteen (15) days after its publication in at least two (2) national newspapers of general circulation. Approved,
54
About CMFR
The formation of the Center for Media Freedom and Responsibility (CMFR) addresses one of the critical concerns confronting the Philippines after People Power toppled the Marcos dictatorship in February 1986. That concern calls attention to the power of media and the role of the free press in the development of Philippine democracy. All over the world, press freedom has been found to be essential to the democratic system. Effective participatory government is possible only when it can count on a well-informed society where individuals freely exchange ideas, where public debate and discussion arise from knowledge and understanding of national affairs. That freedom involves not only media professionals but also the public served by the mediapublic officials, the private sector, civil society groups, readers, viewers, and listeners who receive information and are part of the cycle of public communication. But freedom of the press, like all liberties, has its limits, for the simple reason that it is vulnerable to abuse.
Democratic recovery confronts serious obstacles on the media front. The press and the media need to exert special efforts to measure up as a collective vehicle of information, as an instrument for clarifying complex issues and dilemmas of development that the public should understand. Against this background, CMFR was organized in 1989 as a private, non-stock, non-profit organization involving the different sectors of society. Its programs uphold press freedom, promote public journalism, and ecourage journalistic excellence.
56

FOI Policy Briefing Paper

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

FOI Policy Briefing Paper

Uploaded by

Copyright:

Available Formats

A Policy Briefing Paper:

A Policy Briefing Paper: FREEDOM OF INFORMATION

COPYRIGHT 2011 Center for Media Freedom and Responsibility

Introduction ................................................................................................................................. Tracking the Legislation ....................................................................................................... Multisectoral Perspectives

Conclusion and Recommendations .............................................................................

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

TRACKING THE LEGISLATION

Inclusion of Implementing Rules and Regulations (IRRs):

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

cates have asked Congress to take the lead.

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

August 31, 1992 1993 1998-2001

April 2, 2008 April 18, 2008 April 30, 2008

A Policy Briefing Paper: Freedom of Information

May 24, 2010 May 31, 2010 June 4, 2010

A Policy Briefing Paper: Freedom of Information

July 28, 2011 Aug. 16, 2011 Aug. 18, 2011

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

CORRUPTION Think tanks and academic and other experts

BUDGET BLACK BOX

A Policy Briefing Paper: Freedom of Information

AIM Policy Center

A Policy Briefing Paper: Freedom of Information

Public info campaign

Actual grant received by primary school (means)

Government audits of road projects in Indonesia

Is the threat of government audits enough to reduce corruption in infrastructure projects?

A Policy Briefing Paper: Freedom of Information

Indias Right to Information Act

Improved voter information in Brazil

Does improved voter information enhances political accountability?

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

Some open spaces, many closed corners

Philippine Center for Investigative Journalism May 1, 2011

Source: PCIJ Request Log as of April 29, 2011

A Policy Briefing Paper: Freedom of Information

Commission on Audit Office of the Ombudsman

A Policy Briefing Paper: Freedom of Information

OFFICE/AGENCY Legislative Branch Senate House of Representatives

Uniformed Services Armed Forces of the Philippines

MORE DOCUMENTS, MORE REQUESTS

Philippine National Police

RESULTS Approved requests, complete release of documents Approved, complete

A Policy Briefing Paper: Freedom of Information

Source: PCIJ Request Log as of April 29, 2011

A Policy Briefing Paper: Freedom of Information

Triggers & barriers to access

on SALN requests, the two institutions got the work done.

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

A Policy Briefing Paper: Freedom of Information

CONCLUSION AND RECOMMENDATIONS

A Policy Briefing Paper: Freedom of Information

CMFR POLICY FORUM ON THE FREEDOM OF INFORMATION

A Policy Briefing Paper: Freedom of Information

Asian Institute of Management J.M. Luz