Malacanang on FOI:
A slew of exceptions

Malacanang at long last unveiled today, May 3, the details of its own version of the long-delayed Freedom of Information Act, proposing a measure that includes the creation of an “Information Commission” that would serve as arbitration body for access to information requests..

The proposed administration measure also recommends new and broader exemptions from the proposed FOI Act, including certain kinds of information that President Benigno Aquino III himself reportedly wants to keep under the radar, according to Manuel L. Quezon III, Undersecretary for Presidential Communications Development and Strategic Planning Office (PCDSPO).

During a roundtable discussion hosted this morning by the National Union of Journalists of the Philippines to mark World Press Freedom Day, Quezon said the Palace will discuss its proposals in further dialogues with FOI advocates and members of Congress.

Apart from the creation of an Information Commission, Quezon said Malacanang wants to enroll such other exceptions as:

• Executive Privilege or “the expectation of a President to the confidentiality of his conversations and correspondences” that supposedly consist of “Presidential Communications Privilege” and “Deliberative Process Privilege.” Under this proposed exception, Quezon said the Palace wants “absolute exception for “communications, documents or other materials that reflect presidential decision-making and deliberations… and (to) the decision-making of the President.”
• “Any information relating to National Security, which according to NICA (National Intelligence Coordinating Agency) has different meaning from National Defense.”
• “The privileged status of information done in executive session is made absolutely exempted information.”

In addition, Quezon spelled out under the so-called “deliberative process privilege” the slew of information and documents that the Aquino administration wants to keep secret from the public. These include, he said, “inter-agency and intra-agency memoranda or letters containing recommendations or opinions are exempted; records of minutes, transcripts, records of advice or opinion are exempted prior to issuance of policy; and drafts of orders, resolutions, decisions, memoranda or audit reports.”

Quezon said that in the administration’s view, more documents and information should be classified as confidential – among them government memoranda or communication “containing recommendations or opinions”; “records of minutes, transcripts, records of advice or opinion,” especially prior to the issuance of policy; drafts of orders, decisions or memoranda; and “personal information” — so that these would “harmonize with the Data Privacy Law,” which is still pending with Congress.

According to Quezon, the Palace wants the proposed Information Commission to be composed of a chairman and two deputy commissioners. All of them will be appointed by the president for a term of six years. At least one of the deputy commissioners must be a lawyer, and the other would ideally be an expert on information and communications technology or library and information science.

The proposal is based on the Canadian model, where, Quezon said, citizens are able to “resort to a body with expertise in deciding and addressing access to information issues.”

“Requestors would enjoy both an internal appeals process and external appeals,” Quezon said. “Appellants would not suffer too much delays due to clogged dockets.”

Quezon disclosed details of the proposed Palace version of the Freedom of Information bill following mounting pressure from FOI advocates for a firmer Palace stand on the measure. FOI advocates have complained that President Aquino has been largely silent on the FOI issue despite having assumed office on a platform of transparency and accountability almost a year ago. (See PCIJ reports on President Aquino and the FOI: part 1, part 2.)

The Palace version also allows a government agency to disregard repeated similar requests from the same persons for a particular piece of information once one of such petitions has been rejected.

Lastly, government agencies would be directed to designate liaison units or form “FOI committees” to deal with FOI requests.

FOI advocates are viewing the Palace proposal with caution.

PCIJ Executive Director Malou Mangahas says these supposed “concerns” about the FOI bill actually seem to divide the Cabinet more than any other group. Such division is also unfolding with President Aquino still reluctant or unable to issue “a clear, sharp stand on the FOI, in point of principle and philosophy.”

She recalls that the FOI advocates had precisely sought such a statement from Aquino at a meeting with his Communications secretaries in Malacanang February, and asked that rather than dabble in the details of the FOI, the Palace might do better to settle its “concerns” when the time comes for crafting the implementing rules and regulations of the FOI. That is, after the law has been passed.

In addition, Mangahas says the exemptions listed by Malacanang could lead to “a repeat of the NBN-ZTE, and the fertilizer fund” scandals where the then administration of President Gloria Macapagal Arroyo used the right of executive privilege to stop moves to investigate the scams further.

National Union of Journalists of the Philippines Secretary General Rowena Paraan meanwhile points out that the Palace had even expanded the list of exemptions it wants from the FOI.

Paraan also notes that the proposed Information Commission could either assist citizens in getting more access to information, or it could help curtail that right.

“The information commission can work both ways,” she says. “It can be used to facilitate and make sure access to information is enjoyed. Pero in the Philippine context, it can also be used as a restrictive body.”