FOI Briefer

7/30/2019 FOI Briefer

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Draft as of 11/10/2012

A Briefer

Freedom of Information (FOI)

BillThe right to information is enshrined in no less than the Constitution of the

Philippines, in Sec 7 of the Bill of Rights:

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 such

limitations as may be provided by law.

Moreover, Article II (Declaration of Principles and State Policies) Section 28

declares it the policy of the State to adopt and implement a policy of full

public disclosure of all its transactions involving public interest.1

NEED FOR AN ENABLING LAW

While it is true that the Supreme Court upheld the enforceability of the right

to information under the Bill of Rights even without an implementing

legislation2, its effective implementation has suffered from the lack of the

1 In addition to the foregoing main provisions, there are also specific classes of information

that the Constitution requires to be made public: Article XII, Section 21 (information on

foreign loans obtained or guaranteed by the government to be made available to the

public); Article XI, Section 17 (declaration under oath of the assets, liabilities, and net worth

of the President, the Vice President, the members of the Cabinet, the Congress, the

Supreme Court, the Constitutional Commissions and other constitutional offices, and

officers of the armed forces with general or flag rank, shall be disclosed to the public in the

manner provided by law); Article VI, Section 16 (4) (both Houses of Congress is required

to keep a Journal of its proceedings, and from time to time publish the same); Article VI,

Section 20 (records and books of accounts of Congress shall be preserved and be open to

the public in accordance with law, and such books shall be audited by the Commission onAudit which shall publish), among many.

2 In Legaspi vs. Civil Service Commission (G. R. No. 72119, May 29 1987), the Supreme Court

said that the guarantee provisions are self executing; that they supply the rules by

means of which the right to information may be enjoyed by guaranteeing the right and

mandating the duty to afford access to sources of information. The Court concluded that the

right may be asserted by the people without need of ancillary legislation, and where it is

denied, the people have recourse to the Courts through a Petition for Mandamus.

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necessary substantive and procedural details that only Congress can

provide:

Due to the absence of uniform, simple and speedy procedure for

access to information, agencies are thus able to frustrate the exercise

of the right.

While in legal theory there is no discretion in giving access to

information, it remains discretionary in practice.

The specification of the coverage of the guarantee, particularly the

general rule on what information may be exempted, needs legislation.

It is difficult to enforce any available administrative or penal sanctions

with the lack of definite procedure and scope for the exercise of the

right. Thus, there is no compelling deterrent to the unlawfulwithholding of information

The remedy to compel disclosure, primarily judicial, is inaccessible to

the general public.

Governments record-keeping system is in a very poor state.

There is a very low level of bureaucratic commitment to openness.

The cost of access to certain information is excessive.

Moreover, the self executing nature of the provision under the Bill of Rights

(duty to allow access upon demand of the right-holder) does not apply to the

policy of full disclosure of all transactions involving public interest (duty to

disclose without demand) under Article II, Section 28. The latter needs an

enabling law to provide the mechanics for compulsory disclosure.3

3 In the case of Chavez vs. NHA (G.R. No. 164527, August 15, 2007), the Supreme Court

distinguished between the two provisions. It said that Sec. 28, Art. II compels the State and

its agencies to fully disclose all of its transactions involving public interest without need of

demand from anyone. Under this provision, government must bring into public view all the

steps and negotiations leading to the consummation of the transaction and the contents ofthe perfected contract. In contrast, under the Bill of Rights provision, the interested party

must first request or even demand that he or she be allowed access to documents and

papers in the particular agency. The duty to disclose without demand covers only

transactions involving public interest, while the duty to allow access has a broader scope of

information which embraces not only transactions involving public interest, but any

matter contained in official communications and public documents of the government

agency. Unfortunately, there is no enabling law that provides the mechanics for the

implementation of the compulsory duty to disclose transactions of public interest

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FOIS LEGISLATIVE HISTORY

The push for a freedom of information law is not new. In fact, the first

attempt to enact such was two decades ago.

The FOI bill was first filed in 1992 by then-Pangasinan Rep. OscarOrbos.

March 10, 2008 House Bill 3732 was filed by Congressman Juan

Edgardo Angara.

May 12, 2008 - HB 3732 passed the third reading in the House of

Representatives during the 14th Congress.

June 3, 2009 - The Senate version, Senate Bill 3308, was jointly filed by

the Committees on Public Information and Mass Media and ON Civil

Service and Government Reorganization; sponsored by Senators AllanPeter Cayetano and Antonio Trillanes IV.

December 19, 2009 - SB 3308 was subsequently approved third

reading. President Benigno Aquino III was a member of the 14th

Congress, and was among those who approved Committee Report 534,

regarding SB 3308.

The bill narrowly missed enactment as the 14th Congress failed to ratify

the bicameral report.

During the May 2010 Presidential Elections, Aquino promised to assign

first priority to the FOI bills passage into law, however, it has been

placed in the backburner upon his assumption to the Presidency.

July 1, 2010 - HB 53 was filed by Cong. Erin Tanada. During the same

day, the Senate version, SB 11, was filed by Sen. Trillanes.

Replying to allegations of Malacanangs doublespeak on the issue of

FOI, Undersecretary Manolo Quezon III explained that they are still

looking for a happy balance between information provision and

confidential government information.

without demand under Article II, Section 28 of the Constitution. The Court observed: It

is unfortunate, however, that after almost twenty (20) years from birth of the 1987

Constitution, there is still no enabling law that provides the mechanics for the compulsory

duty of government agencies to disclose information on government transactions. Hopefully,

the desired enabling law will finally see the light of day if and when Congress decides to

approve the proposed Freedom of Access to Information Act.

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film, sound and video recordings, magnetic or other tapes,

electronic data, computer stored data, or any other like or similar

data or material recorded, stored or archived in whatever form or

format, which are made, received or kept in or under the control

and custody of any government agency pursuant to law,

executive order, rules and regulations, ordinance or in

connection with the performance or transaction of official

business by any government agency.

Government agency shall include the executive, legislative and

judicial branches as well as the constitutional bodies of the

Republic of the Philippines including, but not limited to, the

national government and all its agencies, departments, bureaus,

offices and instrumentalities, constitutional commissions and

constitutionally mandated bodies, local governments and all their

agencies, regulatory agencies, chartered institutions,

government-owned or controlled corporations, including wholly-

owned or controlled subsidiaries, government financial

institutions, state universities and colleges, the Armed Forces of

the Philippines, the Philippine National Police, all offices in the

Congress of the Philippines including the offices of Senators and

Representatives, the Supreme Court and all lower courts

established by law.

Official records shall refer to information produced or receivedby a public officer or employee, or by a government agency in an

official capacity or pursuant to a public function or duty, and is

not meant to be a stage or status of the information.

Public records shall include information required by law,

executive orders, rules, or regulations to be entered, kept and

made publicly available by a government agency.

2. Legal presumption in favor of access to information.

Government agencies have the burden of proof of showing that

information requested is exempted from disclosure. (Sec. 5)

3. A narrow list of clearly defined and reasonable exceptions:

(Sec. 7)

Those pertaining to national defense

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Those related to the countrys foreign affairs

Those related to military and law enforcement operation

Personal information about private individuals

Industrial, financial, or commercial secrets of individuals or

entities

Drafts of decisions by any executive, administrative, judicial, or

quasi-judicial body

4. Public Interest override. Even when the information falls within the

exceptions, citizens are given an opportunity and right for citizens to

override such exception whenever there is greater public interest in

the disclosure of information. (Sec. 8)

5. Clear, uniform and speedy procedure for access to information.

(Sec. 9)

6. Proscription against excessive costs of access to information.

(Sec. 10)

7. System of accessible and speedy remedies that a citizen who has

been denied access to information may resort to. (Sec. 13)

8. Mechanics for the compulsory duty of government agencies to

disclose information on government transactions involving

public interest pursuant to Article II, Section 28 of the Constitution.

(Sec. 14)

9. Mandate to maintain records and promote a culture of

openness within government. (Secs. 15 & 16)

10.Clear administrative, criminal and civil liability for violation of

the right to information. (Sec. 17)

OPPORTUNITIES FOR FDCS CAMPAIGNS AND ADVOCACIES

For so long, we have grappled with public offices and their flimsy excuses in

order for us to get copies of official documentsfrom loan and independent

power producer (IPP) contracts that would have hastened and reinforced the

efforts of debt audit initiative in 2008, to the text of the proposedJapan-

Philippines Economic Partnership Agreement (JPEPA) which would have

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helped further expose the treason by our negotiators at the expense of the

Filipino people. Without any other options, instead, we have relied almost

solely and heavily on leaks and tips, which while are very helpful in setting

the initial direction of propaganda and legislative engagement, cannot be the

basis of sustainable and comprehensive assaults involving all legislative,

executive, and judicial arenas.

Without legislation on freedom of information, requests for official

information are often refused, or delayed, sometimes for years. At times,

poor information management is to blame. But all too often, this happens

because of a culture of secrecy and a lack of accountability.

The FOI law would open invaluable opportunities for our campaigns. Clear,

uniform and speedy procedure and the legal presumption in favor of access

will enable us to easily and promptly get a hold of evasive illegitimate debt

and ODA contracts; minutes of the Monetary Board, PSALM and MWSS Boardmeetings and ERC hearings; onerous IPP contracts; the books of PSALM and

NAPOCOR; bid and procurement documents; unsolicited BOT/PPP proposals;

feasibility studies; among many. Even if the requested information falls

under one of the strictly construed exceptions, the FOI law provides for a

mechanism for the public to argue the greater public interest in disclosure

than in the harm sought to be protected by such exception. Further, the

clear system of accessible and speedy remedies will allow us to have

alternative recourse in case of refusal to our demand to access information.

Most significantly, the mechanism for compulsory disclosure of information

on government transactions involving public interest in the FOI law will allow

us to access relevant information that we do not even know of yet.

It cannot be repeated enough that the realization of the constitutional

mandate more than two decades ago for an enabling law for freedom of

information is long overdue. We will not accept any reason to further delay

the passage of the Freedom of Information Act, not later, not after the

adjournment of the 15th Congress. The Freedom of Information Act is a key to

Freedom from Debt and to Economic Justice. Right to know, right now!

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REFERENCES

1987 Constitution of the Republic of the Philippines.

Briefer on the Proposed Subsitute Freedom of Information Bill of 2012.

http://www.gov.ph/downloads/2012/02feb/Pamphlet-Briefier-Proposed-FOI-

BIll-2012.pdf

House Bill 3732. Fourteenth Congress of the Republic of the Philippines.

http://www.congress.gov.ph/download/billtext_14/hbt03732.pdf

House Bill No. 11. Fifteenth Congress of the Republic of the Philippines.

http://www.congress.gov.ph/download/basic_15/HB00053.pdf

Malaluan, Nepomuceno A. (2009). RIGHT TO KNOW, RIGHT NOW!

http://pcij.org/resources/nepo-malaluan-right-to-know-right-now.pdf

Revised Proposed Consolidation of the Freedom of Information Bills (10

February 2012). Submitted by Deputy Speaker Lorenzo Tanada III to the

House Committee on Public Information. http://ifoi.ph/wp-

content/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb-

2012.pdf

Senate Committee Report No. 534. Fourteenth Congress of the Republic of

the Philippines. http://www.senate.gov.ph/lisdata/1168610296!.pdf

Senate Bill No. 11. Fifteenth Congress of the Republic of the Philippines.

http://www.senate.gov.ph/lisdata/73795943!.pdf

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http://www.gov.ph/downloads/2012/02feb/Pamphlet-Briefier-Proposed-FOI-BIll-2012.pdfhttp://www.gov.ph/downloads/2012/02feb/Pamphlet-Briefier-Proposed-FOI-BIll-2012.pdfhttp://www.congress.gov.ph/download/billtext_14/hbt03732.pdfhttp://www.congress.gov.ph/download/basic_15/HB00053.pdfhttp://pcij.org/resources/nepo-malaluan-right-to-know-right-now.pdfhttp://ifoi.ph/wp-content/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb-2012.pdfhttp://ifoi.ph/wp-content/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb-2012.pdfhttp://ifoi.ph/wp-content/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb-2012.pdfhttp://www.senate.gov.ph/lisdata/1168610296!.pdfhttp://www.senate.gov.ph/lisdata/73795943!.pdfhttp://www.gov.ph/downloads/2012/02feb/Pamphlet-Briefier-Proposed-FOI-BIll-2012.pdfhttp://www.gov.ph/downloads/2012/02feb/Pamphlet-Briefier-Proposed-FOI-BIll-2012.pdfhttp://www.congress.gov.ph/download/billtext_14/hbt03732.pdfhttp://www.congress.gov.ph/download/basic_15/HB00053.pdfhttp://pcij.org/resources/nepo-malaluan-right-to-know-right-now.pdfhttp://ifoi.ph/wp-content/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb-2012.pdfhttp://ifoi.ph/wp-content/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb-2012.pdfhttp://ifoi.ph/wp-content/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb-2012.pdfhttp://www.senate.gov.ph/lisdata/1168610296!.pdfhttp://www.senate.gov.ph/lisdata/73795943!.pdf

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