Multiple requests for access to info
meet with flat denials

First of two parts

THE PUBLIC’S right to information is enshrined in the Philippine Constitution, but the absence of an enabling law has apparently enabled various government agencies and officials – including Supreme Court justices – to violate this.

Some agencies do know and observe the Constitution’s guarantee of transparency, which is a prior condition to good governance. Far too many others, however, seem stuck in confidentiality mode and require prodding and coaxing to release documents. The most hostile, in fact, simply flatly deny or altogether ignore requests for public documents.

Even journalists, who are duty-bound to ferret out the truth on matters of public concern, have not escaped such difficulties. For the last decade, for instance, the Philippine Center for Investigative Journalism (PCIJ) has been documenting all requests for information that it files with state agencies in the course of researching stories. Apart from copies of contracts, loan agreements, and data on contractors, PCIJ has found that documents on what public officials own are among the most closely guarded and the hardest to secure.

Thus far, PCIJ has recorded at least 14 cases of requests denied by 12 government agencies, with the reasons ranging from the condescending to the incredulous. This then begs the question: If journalists have a hard time accessing such information, what chance do ordinary citizens have of having similar requests approved?

One agency under the Department of Trade and Industry (DTI), for example, suggested that journalists may be infirm of motive or capacity to understand the requested data. The Supreme Court, meanwhile, argued that disclosure of the requested information (the Statements of Assets, Liabilities, and Net Worth of judges and justices) may turn the public against court officials, or put these at risk of extortion, kidnapping, and blackmail.

Such recalcitrance, though, may soon face a serious challenge should the members of the 14th Congress make history and cast an affirmative vote for transparency.

Over the last nine years, the Access to Information Network (ATIN), composed of transparency and accountability advocates, among them PCIJ, has pushed for the passage of a Freedom of Information Act to enable and enforce the Constitution’s guarantee of access to information.

The bill was left pending in the legislative wringer until last year, when the House of Representatives in plenary finally voted to enact the bill. Last week, a counterpart bill hurdled the vote of the Senate Committee on Public Information, with clear bipartisan support from administration and opposition senators. The Committee is scheduled to sponsor and submit the bill to Senate plenary vote soon.

Vote for transparency

Such recalcitrance, though, may soon face a serious challenge should the members of the 14th Congress make history and cast an affirmative vote for transparency.

Over the last nine years, the Access to Information Network (ATIN), composed of transparency and accountability advocates, among them PCIJ, has pushed for the passage of a Freedom of Information Act to enable and enforce the Constitution’s guarantee of access to information.

The bill was left pending in the legislative wringer until last year, when the House of Representatives in plenary finally voted to pass it. This week, a counterpart bill may finally hurdle the vote of the Senate Committee on Public Information, with clear bipartisan support from administration and opposition senators. The Committee is scheduled to sponsor and submit the bill to Senate plenary vote soon.

Once that happens, it may be interesting to see if state agencies and officials could nurture and observe full respect for the public’s right to know.

Article III Section 7 of the Constitution reads: “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.

The rules of engagement for access to information requests are also pretty simple and clear. The Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act No. 6713 states: “All public officials and employees shall, within 15 working days from receipt thereof, respond to letters, telegrams, or other means of communications sent by the public. The reply must contain the action taken on the request.

But as things stand now, PCIJ has learned that patience is no match to the crafty, if not altogether unreasonable, resort to delay and evasion that many public officials and agencies employ toward legitimate requests for access to information.

In the most difficult cases, PCIJ has had to wait for 56 days to six months, file at least three request letters per agency, and make 18 to 21 follow-up phone calls for documents it needed for its reports. It has also had to deal with up to six different officials in the same agencies to get action or response on its requests.

Generals & justices

In 1999, the PCIJ filed a request for copies of the SALNs of generals or star-rank officers of the Armed Forces of the Philippines, with both the general headquarters and the Ombudsman for the military. It did not even merit a response in writing. Instead, PCIJ learned from defense reporters that at a command conference in Camp Aguinaldo, the generals discussed PCIJ’s request and among themselves agreed to just ignore it. More surprising, however, was the response PCIJ received from the Supreme Court, which was among the 14 cases in which PCIJ’s request for information was flatly denied. In 2006, PCIJ filed letters of request for the SALNs of the judges and justices, up the level of the Supreme Court, so these could be uploaded on PCIJ’s online database, After all, the laws require all public officials to file their SALNs every year among the minimum requirements of transparency and accountability clauses in the Constitution and anti-graft laws.

PCIJ, however, never received a formal response from the Supreme Court. It learned that the Court had denied its request only because an enterprising reporter of The Manila Times made a story out of it. The reporter saw the PCIJ letter and asked for a specific explanation why the Court could not grant access.

The Court had responded by saying that by making the SALN public on PCIJ website, the public may use the information against the justices.

But there was more. On April 27, 2006, the Supreme Court issued a “Media Backgrounder” defining the procedure for “Request of Copies of Statements of Assets and Liabilities of Justices, Judges and Court Personnel.”

Judiciary vs access?

The “Media Backgrounder” restricts access to the SALN not only of magistrates, but also down to the last court personnel. It also states that there should be a “legitimate reason” for the request, since access to such documents could lead to fishing expeditions.

In 1992, the Court had denied the request of the Office of the Ombudsman for the SALN of two judges. The request, according to the Court, was a mere attempt to “fish for information against the said judges.”

In the “Backgrounder,” the Court reasoned that such requests could also undermine the independence of justices, and expose them to retaliation for adverse decisions, or even to extortion, kidnapping, and blackmail. The Court added, “In the few areas where there is extortion by rebel elements of where the nature of their work exposes to assaults against their personal safety, the request shall not only be denied but should be immediately reported to the military.”

In truth, much of the guidelines spelled out in the “Backgrounder” were lifted from a 1989 En Banc Resolution on the request of a certain Jose Alejandrino who wanted copies of the SALN of justices who decided on his breach of contract case.

Interestingly, the guidelines include a provision that says the Court must state “the reason for the denial” of the request – something it failed to do with that of PCIJ.

Political appointees

Two years later, PCIJ faced similar difficulties in securing copies of official personal data sheets on political appointees in Executive agencies.

PCIJ’s requests for such information were triggered by data from the Civil Service Commission (CSC) showing that agencies with either the biggest budgets or the most lucrative and sensitive regulatory and revenue functions — or both — also had the highest number of ineligible and unqualified undersecretaries and assistant secretaries.

According to the CSC, then under Karina Constantino-David, the executive departments had at least 113 political appointees of Arroyo. These included 79 undersecretaries and assistant secretaries who had not bothered to undergo exams to obtain civil-service eligibility, even as they were occupying positions reserved for career service personnel or that required eligibility.

To do the story on the record number of political appointees in the Executive branch who are mostly without civil-service eligibility, PCIJ requested various agencies for copies of the personal data sheets and resumes of the ineligible officials. More than 30 days later, only three agencies provided the data requested: the Office of the Press Secretary (all undersecretaries and assistant secretaries eligible); Presidential Management Staff (33 percent of officials not eligible), and Department of the Interior and Local Government (70 percent of officials not eligible).

The Office of the President, along with the Department of Tourism and the Department of Agriculture, denied PCIJ’s request.

Worse than mere denial, seven other agencies – Department of Energy, Department of Justice, Department of National Defense, Department of Education, Department of Trade and Industry, Department of Labor and Employment, and Department of Environment and Natural Resources — did not give any information at all.

Contracts, contractors

Requests for less personal data did not mean easier access, however.

In 2007, PCIJ launched a six-month review of official documents covering 71 projects funded with Official Development Assistance (ODA) from various bilateral and multilateral agencies.

The effort resulted in a three-part investigative report by PCIJ fellow Roel R. Landingin, Manila senior correspondent of The Financial Times of London, which revealed that seven in 10 projects funded by ODA loans had failed to deliver their target benefits and results.

Research for this story entailed gathering ODA project documents, including copies of contracts, memoranda of agreement, feasibility studies, cost-benefit studies, presentation materials, status reports, and related materials.

PCIJ sent letters to various government agencies to secure these documents and kept a log of request approvals and denials from July to December 2007. The log also enrolled data regarding the number of phone calls made, letters sent by fax and e-mail, and the number of employees that the researchers spoke with or were referred to.

In the end, 15 of PCIJ’s 23 official requests for the ODA series were granted, while eight were denied. The latter cases included:

  • A request for documents on the President’s Bridges Program filed with the DPWH that drew no response or action for 59 working days, the longest on PCIJ’s index of denied requests. When it finally responded, the DPWH denied the request, saying that it could not share copies of the documents because these were supposedly undergoing review by the Commission on Audit (COA).
  • A request filed with the Department of Finance (DOF) for copies of the loan agreement between the Export-Import Bank of China and the Philippine Government for the Non-Intrusive Inspection Container System Project. The DOF said it had to refer this request to the Office of the Chief Presidential Legal Counsel because the document “may fall within the mantle of executive privilege and information.”In April 2008, the PCIJ filed the same request with Finance Undersecretary Roberto Tan. This time, PCIJ invoked Republic Act 6713 and pointed out that numerous follow-up calls had yielded no response from the DOF. Finally, the DOF relented and gave PCIJ copies of the loan agreements on 13 projects (out of 16 projects requested). After a 53-day wait, PCIJ got the documents. The total effort required: 17 phone calls, three letters (sent by fax, email and snail mail), and P1,175 paid as reproduction fee.
  • A request filed with the Philippine Domestic Construction Board (PDCB) for the Excel file version of the Consolidated Constructors Performance Summary Report, which is available in PDF format online. In denying the request, the PDCB cited a policy “to keep the source documents or files in strict confidence.”
  • A request filed with the Philippine National Railways (PNR) for the documents on the North Rail and South Rail Linkage Projects. According to a PNR representative, the PNR’s Korean partners had “reservations of some sort.”

An earlier PCIJ request for information on the North Luzon Railways project also yielded no action for seven weeks or 49 days because the North Luzon Railways Corporation had to wait for the appointment of a new spokesman — supposedly “the only person authorized to relate with the media.” The request was eventually denied.

NEDA si! NEDA no!

Initially, requests made with the National Economic and Development Authority (NEDA) for the story had resulted in PCIJ receiving some relevant ODA data from the agency. But after the National Broadband Network (NBN) project became the subject of a Senate inquiry, the documents stopped coming. Executive Secretary Eduardo Ermita, in a memorandum order dated Sept. 28, 2007, imposed a virtual gag on the release of specific NBN documents to the Senate, the media, and the public.

A lock was imposed on documents requested by PCIJ such as the minutes of the March 26, 2007 meeting of the Special Joint Investment Coordinating Committee (ICC), minutes of the March 29, 2007 meeting of the joint NEDA Board and ICC, and the project evaluation report dated March 26, 2007.

These documents were critical to a review of how and why the government decided to award the $329-million NBN contract to China’s state-owned ZTE Corporation. Ermita, however, argued in his memorandum, “Discussions in closed-door Cabinet and NEDA meetings are considered executive privilege.”

A week prior to the publication of its ODA series in February 2008, PCIJ tried once more to ask for evaluation reports, ICC data, and other related information on various ODA projects. But NEDA would not budge.

More recently, PCIJ conducted a review of the DPWH contracts database as a follow-up to the January 2009 report of the World Bank’s anti-corruption unit, the Department of Institutional Integrity (INT), which established collusion and corruption in Bank-funded road projects being implemented by the DPWH.

PCIJ imported the online registry of contracts posted on the DPWH website ( in its entirety, keeping intact the integrity of the information to the last decimal digit. PCIJ later organized the database into a searchable file using a customized comma-separated values format program.

PCIJ adopted this research method after DPWH officials denied a written request in January 2009, as well as repeated follow-up queries, for a spreadsheet version of the DPWH’s online database.

Forwarded but…

According to a DPWH staff, PCIJ’s request letter had been forwarded to the office of Secretary Hermogenes Ebdane Jr., but that he was then on leave. The staff also said that if the request would be addressed, the DPWH would probably also provide the document in the same format.

To follow up on the request, PCIJ made a total of nine phone calls, sent two letters, and spoke with six DPWH personnel.

In a questionnaire sent via e-mail to Ebdane on February 26, 2009, PCIJ asked about the status of its request for the database. In his written response to the PCIJ questionnaire on March 6, Ebdane did not even address the query.

PCIJ also requested for the Excel copy of the latest Consolidated Constructors Performance Summary Report (as of June 2008) from the Government Procurement Policy Board (GPPB), the agency assigned to monitor compliance by all public agencies with the Procurement Reform Law.

In 2007, GPPB had furnished PCIJ with a 2006 summary report for the ODA series. This time around, GPPB endorsed PCIJ’s request for an updated copy of the summary report to the Philippine Domestic Construction Board (PDCB).

The PDCB acknowledged the request in just five days. The action came after PCIJ filed one letter, made four phone calls, and spoke with two people from the GPPB and PDCB.

Prior restraint?

The PDCB, an agency under the DTI’s purview, implicitly granted the request. At the same time, however, it felt the need to point out the obvious while imposing rather restrictive conditions.

Its letter read in part: “Please be informed that this report is highly technical and very hard to interpret or understand unless explained by somebody with good knowledge about the CPES.”

More than simply issuing qualified approval of the PCIJ request, the PDCB seem inclined to impose prior restraint on how and when the PCIJ could release its story.

“Before we could give you the requested report,” it added, “we require from you the following: a. Information on the user/s of the CPES data: b. Your authorized representative to be briefed about the CPES methodology and the ratings were generated/computed; and c. Undertaking that you will secure proper clearance from our office before publishing/releasing any CPES derived statistical data to ensure that the analysis and interpretation of the data is correct.” – Compiled for the editors and writers of the PCIJ by Karol Ilagan, Avigail M. Olarte and Malou Mangahas, May 2009