In pursuit of openness and transparency

INVOKING executive privilege over the people’s constitutional right to know has become a trademark of the Arroyo administration.

The recent Supreme Court decisions restricting the public disclosure of information on the Japan-Philippine Economic Partnership Agreement (JPEPA) negotiations and the scandal-ridden national broadband (NBN) deal have been clear signs of the continuing struggle for transparency and accountability in governance.

The key problem, according to the Access to Information Network (ATIN), is the lack of legislation.

A growing network of transparency and good governance advocates, ATIN has been pushing for the passage of the Freedom of Information Act, which is aimed at changing the existing tradition of secrecy and promoting openness among government officials.

Read ATIN’s position paper commenting on the proposed freedom of information bills in the Senate (SB Nos. 16, 109, 576, 592, and 1578).

The bill, which recently passed the Lower House, is deemed necessary especially at “a critical time when information held by government has been the subject of conflicting claims.” The deliberation has now shifted to the Senate where a counterpart bill is pending.

Limits of the constitutional guarantee

“While our Supreme Court has confirmed that this provision (right to information) is self-executing, it is far from complete,” said Rep. Lorenzo “Erin” Tañada III, one of the bill’s main proponents. “Its effective implementation has for the past two decades suffered from the lack of the necessary substantive and procedural details that only legislature can provide.”

ATIN has enumerated these limitations in a letter to Senator Ramon “Bong” Revilla Jr., chairman of the Committee on Public Information and Mass Media in the Senate.

For one, no uniform, simple and speedy procedure exists in gaining access to public information. Access is currently applied in inconsistent ways across government offices. The absence of a uniform procedure, ATIN explained, is used by agencies “to frustrate the exercise of the right.”

Second, the coverage of the guarantee — the general rule on what information may be exempted in particular — is not specified. The constitutional provision states that access to information shall be afforded by citizens “subject to such limitations as may be provided by law.” But Congress has yet to fulfill this mandate.

As observed by the Supreme Court in Chavez v. PCGG (G.R. 130716), “(T)here are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged.” To address the gap, what the Court has done was to outline a number of exceptions through jurisprudence, but the expected lack of exactness in the absence of legislation opens the enumeration to wide interpretation.

The lack of a definite procedure and scope has also made it difficult to enforce any available administrative or penal sanctions for violations of the right. Therefore, there is no compelling deterrent to the unlawful withholding of information.

By addressing these limitations, the Freedom of Information Act will add teeth to the constitutional guarantee of the right to information. Congressman Tañada referred to the enactment of the information law as “a shining legislation in pursuit of democracy, good governance, and national development.”

Procedure for access

Among its many features, the Information Act provides a clear set of procedures for access of public information. Currently, only Section 5 (e) in Republic Act No. 6713 or the “Code of Conduct and Ethical Standards for Public Officials and Employees” provides the closest to a statutory procedure for access, which lists among the duties of public officials the obligation to make all documents accessible to the public within working hours.

But many public officials resort to Section 5 (a) of the same law, which directs them to act on requests within 15 days from the receipt thereof. Often, requests are met with just a reply letter stating that the request is being considered within the 15-day period.

Under the Information Act, government agencies must comply with requests within ten days from the day the request has been received. Time limits may however be extended in cases where, in the production of the requested information, there is a need:

• to search for and collect the requested information from field facilities or other establishments that are separate from the office processing the request;

• to search for, collect and appropriately examine a voluminous amount of separate and distinct information which are demanded in a single request;

• for consultation, which shall be conducted in all practicable speed, with another government agency or among two or more components of the government agency having substantial interest in the determination of the request; and

• to consider fortuitous events or other events due to force majeure or other analogous cases.

The office will have to notify the requesting party of the extension, stating the reason 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 calendar days.”

Exceptions

Subject to the specific guidelines set forth in the Act, access to information may be denied when:

• the revelation of the information will create a clear and present danger of war, invasion or any external threat to the State as determined by the Office of the President and/or the Secretary of the Department of National Defense: Provided, That the Supreme Court may, upon complaint by any citizen, inquire into the sufficiency of the factual basis for such determination;

• the information pertains to the foreign affairs of the Republic of the Philippines, when its revelation would 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 intends to keep friendly relations, except that such information must always be accessible to either House of Congress;

• the information pertains to internal and external defense and law enforcement, when the revelation thereof would render a legitimate military operation ineffective, unduly compromise the prevention, detection or suppression 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 the administration, budget and expenditure, and management of the defense and law enforcement agencies shall always be accessible to the public;

• the information pertains to the personal information of a third party natural person, unless it forms part of a public record, or the third party is or was an official of a government agency and the information relates to his or her public function;

• the information pertains to trade, industrial, financial or commercial secrets of a third party natural or juridical person, obtained in confidence by a government agency whenever the revelation thereof would seriously prejudice the interests of the third party in trade, industrial, financial or commercial competition, unless the third party has consented to the disclosure of the information;

• the information is privileged from production in legal proceedings by law or by the Rules of Court, unless the person entitled to the privilege has waived it;

• the information is exempted by statutes of Congress, in addition to those provided in this section

• the information is obtained by any committee of either House of Congress in executive session; and

• drafts of decisions of any executive, administrative, judicial or quasi-judicial body in the exercise of their adjudicatory functions are being requested.

But even if the information falls under the exceptions mentioned above, access to information shall not be denied if:

• the information may be reasonably severed from the body of the information which would be subject to the exceptions; or

• the public interest in the disclosure outweighs the harm to the interest sought to be protected by the exception.

Denials

From the PCIJ’s own experience, notices of denial are usually provided only upon another request — usually made by a phone call — to the public official to explain in writing why they can’t disclose the information requested.

In case of denials under the Act, the government agency must notify the requesting party within ten days from the receipt of the request. The notice must clearly indicate the name, rank, title or position of the person making the denial, and the grounds for the denial. Failure to notify the person making the request shall be deemed a denial of the request for access to information.

Denials of any request may be appealed in executive and legislative branches through the person or office next higher in authority or the Office of the Ombudsman, following the procedure provided in the Act.

In the judicial branch, the Supreme Court shall promulgate remedies that would govern offices under its jurisdiction.

Mandatory disclosure

The Information Act requires all government agencies to post on their bulletin boards and their websites all the steps, negotiations and key government positions pertaining to definite propositions of the government. This also includes as the contents of the contract, agreement or treaty in the following transactions involving public interest:

• compromise agreements entered into by a government agency with any person or entity involving any waiver or its rights or claims;

• 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;

• procurement contracts entered into by a government agency;

• construction or concession agreements or contracts entered into by a government agency with any domestic or foreign person or entity;

• 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;

• loans from domestic and foreign financial institutions;

• guarantees given by any government agency to government-owned or -controlled corporations and to private corporations, persons or entities;

• public funding extended to any private entity; and

• bilateral or multilateral agreements and treaties in defense, trade, economic partnership, investments, cooperation and similar binding commitments; or licenses, permits or agreements given by any government agency to any person or entity for the extraction and/or utilization of natural resources.

Government agencies must also maintain and preserve their records to easily facilitate identification, retrieval and communication to the public. A Management Information Systems (MIS) must be established to strengthen their capability to store, manage and retrieve records, and to facilitate access to public records.
Sanctions

Imprisonment of not less than six months but not more than one year, with the accessory penalty of suspension from office for the same duration, may be imposed upon any public officer who violates the provisions set forth in the Act.

In case a request is denied and subsequently reversed by final and executory judgment of the Ombudsman or the courts, the government agency shall be liable to pay the requester damages in the amount of P1,000 per day from the date of notice of denial until the date of compliance with the request.

The public officer and the private individual responsible for the denial shall be solidarily liable with the government agency, unless he or she can prove that such denial was made without fault or negligence, or was not done arbitrarily or in manifest bad faith.