Can 'privacy' trump transparency?

SALNs to impeach CJ, other execs
but Palace redacts Cabinet SALNs

A CHIEF JUSTICE was impeached in 2012 for failure to declare the true and detailed list of condo units he owned, and pesos and dollars he had in banks.

Ten years prior, a President was forced out of the Palace for collecting millions in kickbacks and commissions from state contracts and excise taxes, as well as for building scandalously opulent mansions for his mistresses. He, too, kept hidden the facts of his wealth, and would be exposed later to have used a fake name to open a fat bank account.

Fast forward to today: The allies of President Rodrigo R. Duterte in the House of Representatives recently endorsed an impeachment complaint against another chief justice. She, too, the complainant averred, did not enroll the true and complete details of multimillion pesos in fees she received as a co-counsel in the government’s case against a multinational contractor, before she was appointed top jurist in August 2012.

Threat of impeachment lurked as well for the chairman of the Commission on Elections, who, by his estranged wife’s claims, did not report multimillion pesos he has raised from a currency trading business. (The Ombudsman has also been named as a target for impeachment for other reasons, however.)

In all these cases gone, going, or coming still, a four-letter acronym of a document has served as the top trigger: SALN, or the Statement of Assets, Liabilities, and Net Worth that all public officials and employees must file upon entry into public service, every year before the April 30 deadline, and upon exit from office.

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What to redact, why?

Yet now the Cabinet members of the Duterte administration and data-privacy officers in state agencies seem to want to keep under lock and key the most important details of their wealth.

Last Aug. 16, the Malacañang Records Office (MRO) released to data journalists of Entrepreneur Philippines — an online business news and features web site under Summit Media — copies of the SALNs of 28 Cabinet members appointed by Duterte administration. The SALNs provided were invariably outstanding for the details they blacked out, than for the details that they revealed, or must reveal, according to guidelines of the Civil Service Commission (CSC).

It is not clear whether some or all of the redactions on these SALNs were made on request of the filers — the Cabinet members — or on decision of the personnel of MRO, Presidential Communications Operations Office (PCOO), and Office of the President who have been designated as “data privacy officers” of their agencies. The latter — supposedly called “the Clearinghouse of the OP Family” — made the actual redactions.

They supposedly want to protect the “right to security and privacy” of the Cabinet members, citing as basis the Data Privacy Act or Republic Act No. 10173. But then they seem impervious to the fact that the redactions are clear violations — even an act of “repeal by implication” — of The SALN Law or Republic Act No. 6713, which upholds and the principles of transparency and accountability in public service.

PCOO Assistant Secretary Kris Ablan told PCIJ though that some secretaries, including his boss, Communications Secretary Martin Andanar, had expressed concern that certain data in the SALN could invite malefactors to harass the filers or their family members.

Right to security, privacy?

Multiple redactions had been made in fact on the SALNs that Malacañang released to journalists last August 16. Days earlier on Aug. 4, Ablan wrote Chairman Raymund E. Liboro of the National Privacy Commission requesting “clarification on the disclosure of information in relation to the sworn (SALN) of government officials.”

In it, Ablan said that he was writing on behalf of the PCOO, the Office of the President, the Office of the Cabinet Secretary, and the Presidential Management Staff. Altogether, these agencies make up what Ablan told the PCIJ is called “the Clearinghouse of the OP Family.”

Ablan wrote the NPC: “Pursuant to Executive Order No. 2, s. 2016 or the Freedom of Information in the Executive Branch, all public officials are reminded to make their SALNs available for scrutiny, in accordance with existing laws, rules and regulations. However, we have received valid security concerns during our inter-agency meeting on the disclosure of information in the SALNs of government officials to the public.

“To balance the right to information of the citizenry and the right to security and privacy of government officials,” Ablan sought an “advisory” from Liboro’s NPC on “Remarks/Recommendations” of the OP Family Clearinghouse to withhold dozens of data that the law and the CSC guidelines prescribe must be disclosed the SALN.

Then again, clear answers to the query and the NPC advisory would come post-facto, or a month after the MRO had already made redactions on the SALNs of Cabinet members that it sent out to the media.

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More redactions

In his request letter for an NPC advisory, Ablan said the data that the OP Family Clearinghouse had wanted NPC to approve on grounds of “the right to security and privacy”. Ablan’s letter also had offered “Remarks/Recommendation that the OP Family wants NPC to approve. These include:

“Family and Home Address; Name of Spouse including Agency/Office; Office Address and Position; Name of minor children. Remarks/Recommendations: Disclosure of this information may expose the Official’s family to violence and harassment, especially for officers in law enforcement.

“Exact location of real properties, Transfer Certificate of Title {TCT) No., and plate number of vehicles. Remarks/Recommendations: We propose to redact the exact address and the TCT No., and only disclose the barangay and city/municipality where the property is located including the type description, kind, assessed value, current fair market value, acquisition year, mode of acquisition and acquisition cost. Further, we propose to redact the plate number and conduction number of the vehicle/s for security reason.

“Business interests and financial connections. Remarks/Recommendations: “We propose that the exact address and name of the business shall be redacted to avoid harassment and disclose only general information related to business interest and financial connections of the declarant.

“ID number and signature: Request/Recommendation: “We propose to redact these information, which form part of sensitive personal information under the Data Privacy Act of 2012.”

Meetings with PCIJ

PCIJ registered its opposition to the redactions made on the SALNs of the Cabinet members with NPC’s Liboro and with Ablan — whose team of three persons had diligently monitored implementation of President Duterte’s Executive Order No. 2 that instituted a Freedom of Information policy in the Executive Branch.

Three meetings with PCIJ, the NPC and the OP Family Clearinghouse officers and lawyers held in recent weeks revealed, among others, that the latter seemed oblivious to the fact that it is not the Data Privacy Act (Republic Act No. 10173) that should apply in the situation.

Instead, it is Republic Act No. 6713, the Code of Conduct and Ethical Standards for Public Officials and Employees, or by shorthand, The SALN Law, that should be the reference in the filing of SALNs.

Too, the meetings clarified that it is not the National Privacy Commission but the Civil Service Commission that is the chief enforcer of guidelines on the proper filing of SALNs, and of the constitutional and statutory provisions on public disclosure.

Deal-breaker for FOI EO

On advise of lawyers, and from interviews with CSC and the Office of the Ombudsman, PCIJ informed Ablan and the NPC that the redactions made might have resulted in “defacing” public documents on multiple counts, and constituted a “repeal by implication” of the SALN law.

Because they mock the authenticity of the FOI EO that the Duterte administration had issued in July 2016, PCIJ told the NPC and the OP Family Clearinghouse that the redactions are a clear deal-breaker for the CSOs that had been engaged in pushing the bounds of the FOI executive order.

To be sure, if only the OP Family Clearinghouse had checked out the relevant laws, the redactions should not have been made in the first place.

CSC guidelines

Under circulars it issued in 2011, 2013, and 2016 on the filing of SALNs, the CSC had prescribed more than explicitly that the SALN “should state true and complete declaration of assets, liabilities and net worth, including disclosure of business interests and financial connections of the declarant.”

In 2013 the CSC said that while the declarant shall provide information on his/her address, “whenever a third party request for a copy of the SALN…the agency has the option to shade the declarant’s address for purposes of security.” In short, there is only a conditional authority from CSC for repository agencies to redact just one and only one information in the SALN — the filer’s address.

The 2011 guidelines of the CSC spelled out that:

• “On ASSETS. Assets including those within or outside of the Philippines, whether real or personal, should be declared as well as description of real properties as to the kind, nature, exact location, acquisition mode and year, assessed value, fair market value, acquisition cost of land and/or building, including improvements made.

• “Assets whether tangible (i.e. cash on hand, cars, appliances, jewelry, mobile phones) or intangible such as stocks, bond certificates, and the like, denominated in foreign currency shall be converted into the corresponding Philippine currency equivalent at the exchange rate prevailing as of 31 December of the preceding calendar year.

• “On LIABILITIES. Nature of liability and name of creditors should be indicated. The declarant must disclose the outstanding balance as of 31 December of the preceding calendar year.

• “Disclosure of ALL sources of gross income. For both single and joint filing, declarant must disclose all sources of income whether derived from practice of profession, business, and the like for the preceding calendar year.

• “Declaring of Personal and Family Expenses. A new feature of the revised SALN form is the disclosure of the estimated amount of the declarant’s personal and family expenses. In case of joint filing, the declarant and his/her spouse shall declare the estimated amount of their personal and family expenses for the preceding calendar year.”

It must be noted though that the last two provisions cited here from the 2011 CSC guidelines were later removed by CSC Memorandum Circular No. 5, series of 2012/Resolution No. 1200480, after several government agencies raised concerns about the 2011 SALN format.

In 2015, the CSC again instituted a new SALN form. This was followed by the 2016 guidelines that, apart from requiring its use across all agencies, further clarified that:

• “In the declaration of real properties, the form requires the exact location of the property.

• “The Value and the Current Fair Market Value should be based on what is stated in the Tax Declaration of Real Property.

• “The identification of relatives is required to be ‘to the best of my knowledge.’

• “All other declarations are required to be ‘true and detailed.’

• “In case of joint filing, all real and personal properties shall be declared including their respective paraphernalia and capital properties, if there are any.

• “Mortgaged properties are already under the name of the declarant. Hence, the mortgaged properties shall be declared either under real or personal properties. The acquisition cost to be declared shall be the actual purchase price. However, the declarant should declare the outstanding balance of the mortgage loan as of December 31 of the preceding year under Liabilities.

• “Insurance properties should be declared under personal properties. The amount to be disclosed under acquisition cost shall be the amount already paid.

• “Pensions received for the year of declaration should be declared as personal property either cash on hand or cash in bank, as the case may be.

• “Shares of stock are personal properties that must be declared. The acquisition cost shall be the total value of the shares of stocks as of December 31 of the preceding year.

• “Earnings and income from other sources must be declared as these either form part of the declarant’s cash on hand or in bank, which shall be determined as of December 31 of the preceding year.

• “Inherited properties are transferred to the heirs by operation of law. Hence, even without a transfer of the property under the name of the declarant, the latter shall declare his/her share in the inherited properties as his/her assets. For the acquisition cost, the declarant shall state zero (0). For real properties inherited, the declarant is required to provide the assessed value and current fair market value found in the tax declaration of the real properties concerned.

• “Minimal valued properties collectively must be declared, according to the nature/kind of the personal property like books; and the declarant may use “various years” as year acquired “in group/bulk.” R.A. No. 6713 does not provide for a ceiling on properties to be declared.

• “The outstanding balance of liabilities as of December 31 of the preceding year shall be declared, including personal loans and the names of creditors.

• “Business interests refer to declarant’s existing interest in any business enterprise or entity, aside from his/her income from government while financial connections refer to declarant’s existing connections with any business enterprise or entity, whether as a consultant, adviser and the like, with an expectation of remuneration for services rendered.

• “Relatives in the first degree of consanguinity include the declarant’s father, mother, son and daughter. Relatives in the first degree of affinity include the declarant’s father-in-law and mother- in-law.

• “Relatives in the second degree of consanguinity include the declarant’s brother, sister, grandmother, grandfather, grandson and granddaughter. Relatives in the second degree of affinity include the declarant’s brother-in-law, sister-in-law, grandmother-in-law, grandfather-in-law, granddaughter-in-law and grandson-in-law.

• “Relatives in the third degree of consanguinity include the declarant’s nephew, niece, uncle and aunt. Relatives in the third degree of affinity include declarant’s nephew-in-law, niece-in-law, uncle- in-law, auntie-in-law.

• “Relatives in the fourth degree of consanguinity include the declarant’s first cousin.”

Pushback from e-SALN?

The Office of the Ombudsman, meanwhile, had even launched last year the pilot run of its e-SALN project, which would usher in the electronic filing of SALNs with over a million public officials and employees as targeted filers.

The SALN template has been coded under the e-SALN project, and its full rollout is expected to take a few more years. The matter of digital signature, and minor tweaks to the coded template are now being addressed.

Recently, Deputy Ombudsman Cyril Ramos, project head, had stressed in a public presentation that the filing of “true and detailed” SALNs by all public officials and employees upholds the principles of transparency and accountability in public service.

Ramos said the SALN serves as “an initiatory tool, a wealth-tracker document” in discerning:

“Public Accountability, as the fundamental laws in which the system is rooted invariably emphasize upholding the time-honored principle that public office is a public trust;

“Conflict of Interest Control, as can be construed from the disclosure requirement of business interest and financial connection including naming and identifying relatives in the government; and

“Wealth Monitoring, as asset disclosure is currently being employed as a tool for detecting possible cases of misuse of public office for self-enrichment.”

First massive redaction

By the reckoning of both the Ombudsman and the CSC, this is the first time that multiple redactions on the SALNs of Cabinet members had been made. The SALNs of Duterte, the senators, and officers of the constitutional commissions, and civil servants across the board do not bear any redactions, except in some cases, and only involving the home address of the declarant, as CSC has so allowed.

Says a lawyer from the Office of the Ombudsman: “Redaction gives you no protection at all. It may even trigger suspicion you are hiding something.” The lawyer does not recall any case of an official exposed to security problems on account of the SALNs, even as he cited the value of these documents for pursuing cases of corruption and unexplained wealth.

Redacting SALNs, if deliberate, “may constitute tampering of public documents,” says the Ombudsman lawyer, and if done on orders of higher officials, the latter could be culpable, too. The lawyer notes that the Data Privacy Act has not expressly or explicitly repealed the SALN law, and thus, “repeal by implication or redaction cannot be allowed.”

CSC: SALN law stays

CSC Assistant Commissioner Ariel G. Ronquillo, who heads the Technical Working Group on the SALN Law — composed of representatives of the Office of the President, the Ombudsman, and other SALN repository agencies — says that the CSC guidelines must prevail as the reference in the filing of SALNs.

Interviewed by PCIJ, Ronquillo says that he finds no discrepancy or dissonance between provisions of R.A. No. 6713 (SALN Law) and R.A. No. 10173 (Data Privacy Act).

“I don’t think at this point we have to determine which one will prevail,” Ronquillo says, “because in any instances where there is an apparent inconsistency, just an apparent inconsistency between two laws or between two issuances, the first order of the day is to find a way to reconcile these inconsistencies. In other words, to find that situation where those inconsistencies will not be there. We have to interpret these two laws in a way that they will be harmonized. “

But, he adds, “I have made a brief reading of the law as well as the implementing rules and then I made a review of our own guidelines, and honestly based on my reading, I didn’t see any inconsistency. Yeah, so those two laws can go hand in hand. So when it comes to SALN, I think we have to apply the guidelines on the SALN. When it comes to other matters that are clearly within the coverage of the Data Privacy Act then they can apply those regulations issued by the Privacy Commission. I think that’s how to approach it.”

Under the Data Privacy Act, he notes that an exception of coverage has been specified for “any individual who is or was an officer or employee of a government institution that relates to the functions or position of the individual.”

PDS another matter

Ronquillo makes a distinction, however, between the SALN and personal data sheets or PDS.

“If the matter is purely private to the person whether he is in government or not it may still come under the scope,” Ronquillo says. “For example, personal data sheets (that) are required for any government official or employee upon entry to the government.”

He notes that the PDS “strictly contains personal information” and “before you can access the personal data sheet of a government official or employee, you have to seek the consent of the person.”

But that is not the case with the SALN, says Ronquillo. According to the CSC official, privacy may apply to PDS “but not with respect to the SALN.”

“Our stand with respect to the SALN is that it is an instrument of transparency and therefore it should be available to the public upon request,” he adds.

In Ronquillo’s view, The SALN Law and the CSC should prevail as the reference law and mandated agency in regard to the SALN matters.

CSC has mandate

Says Ronquillo: “Kami yung may mandate under (R.A. No.) 6713 to issue the guidelines. So kapag sinabi naming na available iyan for public scrutiny, they cannot, even if they rule otherwise, they cannot prevail. Dapat kami masusunod. (We have mandate under RA 6713 to issue the guidelines. So when we say that should be available for public scrutiny, even if they rule otherwise, they cannot prevail. Our orders must be followed.)”

By all indications though, the OP Family Clearinghouse might have crossed over to prohibited territory when it redacted multiple data fields in the SALNs of the Cabinet members.

Ronquillo says blackening out the home address of the filer is all that the CSC guidelines allow, nothing more, nothing less. “Yung pag-cross out ng mga material information in the SALN such as the statement of properties as well as the different amounts involved, ‘yun nga ang dapat ipakita (that is what should be disclosed),” he says. “So I don’t think it is covered by the Data Privacy Act because the SALN is an instrument of transparency. If you will not disclose that to the public that will defeat the very purpose why people in government are required to fill out SALNs.”

“Without necessarily ruling on whether the action is correct or not,” Ronquillo says, “our guidelines actually require the statement of the exact place of the property that is reflected in the SALN and that is necessary again for purposes of transparency. If the public looks at any government official’s or employee’s SALN, and the public should also be given information as to where those properties can be found for purposes of verification.”

Transparency is the spirit that should drive the filing of SALNs, he says.

Unwanted effects

“Through the SALN,” according to Ronquillo, “we are actually telling the public I am not hiding anything; I am not enriching myself at the expense of the government. So if you want to inspect my properties, go ahead and inspect. And just to prove to you that everything is legitimately acquired, then go ahead and inspect all those properties wherever they are from. That’s why even those information should be open to the public or whoever requests the SALN of that particular government official or employee.”

Redacting or hiding some data about a filer’s properties may even trigger unwanted results for the filer, he says.

Ronquillo agrees that public officials “should be allowed to protect themselves from harassment and from all other dangers” but also notes that, “there is no assurance that by hiding those information, the protection sought will be achieved. I think that is not the proper way of protecting themselves from harm.”

“That act of hiding those information can even give an impression that they are hiding something from the public that will give the public more reason to do deeper investigation about the accumulation of their wealth and that will generate more interest about them,” he says.

“The moment you hide them, it would really give an impression that you are hiding something and that the acquisition or the accumulation of wealth was not that legitimate that you do not want the public to look at it. So I think that would be contrary first to the principle of transparency and to the very reason why we are executing SALNs.”

A good SALN discloses

“In other words,” according to Ronquillo, “a good SALN discloses everything; a good SALN does not hide properties that belong to the filer.”

PCIJ has asked the CSC Commissioners en banc for an official advisory on the guidelines that should apply to the filing of SALNs. In reply, on Sept. 14, 2017, Ronquillo stated: “On the matter of shading or redaction of information in the SALN,” CSC Memorandum Circular No. 2, s. 2013, allows agencies to shade one and only one data: the address of the declarant “for purposes of security.”

The CSC is presently reviewing its policy guidelines on the SALN, he added. “Rest assured that your concerns will be considered, specifically the matter on redaction/shading of information in the SALN when a copy thereof is requested, and on the mater of the effects of the Data Privacy Act of 2012.”

But after three meetings with the PCIJ, the NPC and the OP Family Clearinghouse have agreed to reduce to a minimum the redactions they want to make on the SALNs, notably the declarant’s address, names of children of minor age, government ID number, and signature. When the Palace finally released the SALNs requested by PCIJ last week, parts of the exact location of the filer’s real assets were also redacted.

PCIJ has asked that the redaction process be made transparent, and that a written explanation be issued by the OP Family Clearinghouse stating why and on what basis such redactions would be made.

However, the cover letter for SALNs released to PCIJ this month only briefly explained that the redactions made “pertain to personal information covered by Republic Act No. 10173, otherwise known as the Data Privacy Act of 2012.”

And because additional redactions apart from the filer’s home address would be a clear stretch of what the CSC guidelines allow, PCIJ said that it would be good for the OP Family Clearinghouse to realize that they are by implication repealing or amending the SALN law at whim.

Some results

The meetings with PCIJ have clarified a few points only. For one, the NPC and the PCOO have now included the CSC and the Ombudsman in the discussions on the redactions being made. The NPC has decided to hold off on issuing the advisory requested by PCOO, until after full consultations with other agencies and stakeholders. Too, the NPC and the PCOO have agreed to call a meeting on Sept. 25 of the SALN repository agencies to align practices in compliance with the law.

Apart from the CSC, the Ombudsman, the Office of the President, the Supreme Court (en banc and Office of the Court Administrator), the Office of the Secretary of the Senate, and the Office of the Secretary-General of the House of Representatives are also SALN repositories or custodian agencies.

In a way, the situation boils down to which should be the greater concern or obligation of public officials: privacy or transparency?

Then again, the expectation of privacy, once one enters public service, seems unwarranted at the very least.

‘Avoiding harassment’

When PCIJ asked Ablan for the first time last August about the redactions, he said: “Informal rules were outlined by the Clearinghouse of the OP family. News reports about the relatives of Secretary Martin Andanar triggered it.”

“We are just looking after our principal,” Ablan said. “Under FOI, there is fear that the information disclosed might lead to harassment and identity theft.”

To see what kind of news reports may have been the cause of concern for Andanar, PCIJ checked out media stories and photos about his relatives. But it found just a few featuring his wife, Alelee Aguilar Andanar, a daughter of Las Pinas Mayor Imelda ‘Mel’ Tobias Aguilar and former Mayor Vergel ‘Nene’ Aguilar.

In any case, Ablan told PCIJ that the Clearinghouse composed of assistant secretaries — who serve as “data privacy officers” but often also as the FOI receiving officers of their agencies — had set “an unwritten rule that it is okay to redact names of children, address, plate number (of vehicles), the signature on and the number of government-issued IDs.”

Privacy, not secrecy?

“We are not trying to hide anything,” Ablan insisted. The concern of committee is we have to protect privacy of our principals.”

“Our unwritten policy also is we will wait for request for reconsideration from requestor, and if needed, we can unredact,” he said. “I hope you understand where we are coming from.”

The MRO chief, lawyer Concepcion Zeny E. Ferrolino-Enad, was, according to Ablan, “willing to disclose but there has to be a middle ground because there could be irresponsible people who will use the info in the SALNs.” Asked if the redactions on the SALNs of the Cabinet members imply special protection for senior officials of the Duterte administration, Ablan replied, “The plan is, even the SALNs of the rank-and-file, we will redact.”

He said that there is “no policy yet from the National Privacy Commission but we have asked for comment. If they tell us we cannot redact, we have to find proper authorities or forum to clarify. I hope you understand our concern is to protect people from harassment.” This much he assured PCIJ: “We can call for an emergency meeting for you with the Clearinghouse.”

Spooked by Privacy Act

PCIJ had also interviewed Liboro prior to the meetings held between PCIJ and the NPC and OP Family Clearinghouse.

PCIJ told Liboro that data privacy officers at the Palace seem to have been spooked by the huge penalties that could be imposed on them for “breach” of the Data Privacy Act, but also seem unaware that they may be violating The SALN Law by redacting or withholding information they are obliged to disclose under transparency and accountability laws.

Liboro sounded reassuring at one point, saying, “The Data Privacy Law does not protect government officials, agencies, contractors or companies. It does not proscribe other laws.”

But, of course, he said there is “a difficult balancing that must be made between data privacy and FOI.”

“Data privacy separates government data,” he said. “Hindi kampi sa gobyerno ito, kaya mahirap gamitin para sa gobyerno (It’s not on the side of the government, so it’s hard to use it for the government).”

It’s a constitutional duty

By contrast, the CSC’s Ronquillo is crystal on the matter: The SALN Law must prevail in regard to the SALN.

Remarks Ronquillo: “This is a constitutional duty so all of us are doing this on a yearly basis and so therefore we also have to be prepared when someone looks at our SALN and someone scrutinizes it. If we are sincere in all our obligations as government people, we should not worry with what is reflected in our SALN. Otherwise, if you do not want that kind of practice, then you have to leave government.”

“You have to leave government,” he repeats. “This is part and parcel of being with government.” — With additional research and reporting by John Reiner Antiquerra and Vino Lucero, PCIJ, September 2017