FOI in PDU30’s First 100 Days:
Good Start, Big Balance of Work

STATEMENT OF THE RIGHT TO KNOW, RIGHT NOW! COALITION
07 October 2016

On the first 100 days of the Duterte Administration, the Right to Know, Right Now! Coalition (R2KRN) cites the issuance of Executive Order No. 2 on the Freedom of Information as a good start, but stresses that so much more has yet to be done to guarantee the full enjoyment of the people’s right to know.

R2KRN sees EO No. 2 (Operationalizing in the Executive Branch the People’s Constitutional Right to Information and the State Policies to Full Public Disclosure and Transparency in the Public Service and Providing Guidelines Therefor) as a landmark step, and acknowledges the work being done by various government agencies to prepare their People’s FOI Manual and implementing details. However, R2KRN submits that the lists of proposed exceptions that had been collated by the Department of Justice (DOJ) and the Office of the Solicitor General (OSG) must be reviewed and narrowed down through executive action and legislation. Further, the crux and lifeblood of a truly responsive FOI – practice by public officials and citizens and a culture of transparency in all government agencies – remain a work in progress under the Duterte Administration.

The Peope’s FOI Manual and Uneven Response from Agencies

Today marks the 77^th day since the signing of EO No. 2 on July 23, 2016. That means 43 more days remain before EO No. 2 is fully rolled out on November 19. By then, as per the letter of the EO, all executive agencies shall have prepared their respective People’s FOI Manuals and formulated their respective implementing details.

The member organizations of R2KRN have sought to engage at least five line agencies, two oversight bodies, as well as the Presidential Communications Office (PCO), on these tasks. Thus far, our member organizations have received varying responses. While some agencies have expressed openness to engagement, other agencies have yet to reply. We believe that agencies actively engaging stakeholders in the formulation of their manuals will go a long way in promoting a culture of transparency in those agencies, and will prepare relevant personnel for active interaction with the public on FOI.

Need to Address Confusion on Exceptions

Pursuant to the directive of EO No. 2 for the DOJ and the OSG to prepare an inventory of exceptions, the two agencies submitted separate inventories to the Office of the President. The DOJ’s inventory listed 156 proposed exceptions, and the OSG, 55 proposed exceptions. The unfortunate release of these “draft” inventories by the Presidential Communications Office without proper briefing on their nature and status only served to confuse citizens and could undermine support for EO No. 2. R2KRN has been assured by the lawyers of the Office of the Executive Secretary that the supposed inventory of exceptions to EO No. 2 are for now proposals that will still have to be reviewed and trimmed in consultation with FOI advocates.

What needs to be emphasized is that the inventory must first of all be faithful to exceptions that have clear legal basis under the Constitution and existing laws and jurisprudence. The inventory must neither add nor subtract. Also, the number of proposed exceptions in the DOJ and OSG inventories has proved to be misleading. There are a number of laws that provide confidentiality of specific information, but these generally fall within categories or classes of recognized exceptions. It became all the more confusing that the proposed inventories of the two agencies included draft legislation pending in Congress, as well as judicial notices, even as EO No. 2 covers only the agencies within the executive branch.

R2KRN’s own study led by the Philippine Center for Investigative Journalism (PCIJ) and law professors tapped for expert assistance finds that the inventory can be grouped into eleven (11) categories. The nature of these categories of exceptions needs to be understood well by both the government and the public. Evaluating the reasonability of these categories of exceptions should be the focus of scrutiny, rather than the uncategorized number of proposed exceptions in the DOJ and OSG lists, which only serves to frustrate public expectations that EO No. 2 will enable, rather than restrain, the people’s constitutional right to know.

Progress on the Legislative Front

R2KRN notes with guarded hope that there has been progress on the legislative front. The passage of a Freedom of Information law by Congress that will cover all agencies in all the branches of the government, as well as the Constitutional Commissions, remains our unbending, primordial goal. This has been R2KRN’s constant advocacy over the last 15 years, and even EO No. 2 will not soften our resolve to achieve this.

R2KRN has emphasized early on that legislation will be a positive addition to the EO in respect to the following matters: (1) expanding the coverage of FOI standards beyond the executive branch; (2) reviewing the exceptions to limit these to only those that are reasonable and necessary; (3) introducing criminal liability where appropriate; and (4) affording further institutionalization of transparency and accountability in all public agencies, by strength of law.

At the Senate, the Committee on Public Information and Mass Media chaired by Senator Grace Poe has already conducted public hearings on FOI bills last September 19 and 29. At the House of Representatives, the House Committee on Public Information has conducted a public briefing on its work last Sept. 13 and scheduled its first committee hearing on October 11.

In recent Congresses, the Senate has delivered early on the FOI in contrast to extended deliberations at the House of Representatives. In the 15th and 16th Congress, the major missing link to the FOI’s passage had been the absence of clear, firm endorsement by then President Benigno S. Aquino III and the leaders of the House of Representatives. With President Duterte’s commitment to FOI signaled by EO No. 2, R2KRN harbors hope once more that his “super majority” coalition in both chambers of Congress will now be more responsive to the people’s clamor for the swift passage of the FOI law.

Big Balance of Work Ahead

R2KRN reiterates its support for EO No.2 as a measure that clarifies procedural and substantive issues that hamper the people’s right to access information with clear public interest, in the custody of public agencies.

At the same time, R2KRN emphasizes that EO No. 2 is just a first step, a challenge even for both public officials and citizens to embrace the big balance of work ahead.

Aside from executive agencies providing the implementing details for EO No. 2, there is the task of making the People’s FOI Manual people-friendly.

Two, pending the passage of the FOI law, R2KRN hopes that local government units and Constitutional Commissions will promptly launch parallel efforts to adopt similar administrative procedures to promote transparency and access to information in their respective offices.

Three, on the matter of exceptions, R2KRN wishes to promote its study on exceptions to asisst the Office of the Executive Secretary and other executive agencies in finalizing the inventory of exceptions under EO No. 2.

Four, R2KRN commits full and unqualified support for the review of the outdated information classification guidelines embodied in Memorandum Circular No. 78 that has been cited in the repealing clause of EO No. 2.

Finally, R2KRN pledges to endeavor to nurture a vibrant community of advocates, civil society organizations, and professional associations actively engaged in FOI practice, precisely to test, push, and promote transparency, accountability, and good governance that EO No. 2, and hopefully, a good FOI law, could and should offer all our citizens.

THE RIGHT TO KNOW, RIGHT KNOW! COALITION
07 October 2016

References

Atty. Eirene Jhone E. Aguila, Co-convenor
0919 999 4578, eirenejhoneaguila@gmail.com

Ms. Malou Mangahas
02 433 0331, mcmangahas@pcij.org

Ms. Jenina Joy Chavez
0918 902 6716, chavezjoy@gmail.com