The Power of Access - Foi
Transcript of The Power of Access - Foi
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THE POWER OF ACCESS. The law requiring officials to disclose their assets and financial circumstances has helped
government file cases against 2 presidents and a Supreme Court Chief Justice
MANILA, Philippines - In February 2014, the Philippine government finallyrecovered around $30
million from multi-million dollar accountsthat the late dictator Ferdinand Marcos stashed away in
Swiss banks.What allowed the government to gain control of the money were forfeiture cases which proved that
amounts contained in the accounts exceeded the total legal income of Marcos and his wife Imelda
while they were in office. Evidence used to prove the governments case included the financial
disclosure statements filed by the Marcoses while in office.
It took the government almost 3 decades to recover the money. Neither Marcos, nor his wife Imelda,
were ever convicted of any wrongdoing.
No laggard?
TheAnti-Graft and Corrupt Practices Act, the law that required the Marcoses to file those disclosure
statements dates back to the 1960s. In 1989, years after the Marcoses were booted out of office, the
Philippine Congress enacted a newlaw which allowed the public to access and photocopy the assets
and liabilities statements.
Since then, the law has been used to prove a plunder case against another president (Joseph
Estrada), impeach then remove achief justice (Renato Corona),file cases againstcorrupt
generalsand lately, support thefiling of charges against sitting senators.
That the Philippines enacted such a law almost 3 decades ago is significant because as of 2006, a
World Bank study showed that only 31 of 101 countries that require government officials to declare
their income and/or assetsmandate that such declarations or a summary should be made available
to the public.
This implies that the Philippines is no laggard when it comes to laws allowing access to public
information.
Constitutionally-mandated right
The people's right to information on matters of public concern has been constitutionally recognized in
the country since 1973.
Section 6. 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, shall be afforded the citizen subject to such limitations as may be provided by law.
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-Bill of Rights, 1973 Constitution
After the 1986 Edsa uprising ousted the Marcos dictatorship, this right was further expanded in
the1987 Constitutionto include access to research data used as basis for policy development.
And while there is no enabling law yet on access to information, the Philippine Supreme Court has
already ruled, in more than one occasion, thatthe constitutional mandate is enforceable.
In fact, theCode of Ethics of government officialsthe same law that mandates public access to
financial disclosure statements of government officialsalso makes it the obligation of public officials
and employees to make documents accessible to the public.
The implementing rules of this law helped institute a system of promotingtransparency of
transactions and access to government information. It also sets limits of access.
More recently, the Aquino administration has been making strides in promoting transparency in
government by proactively disclosing budget and project documents.
It is no small wonder then that whilethe Senate has approved the bill on 3rd reading, members of
the House of Representativescontinue to drag their heels on the freedom of information law.
Because if those laws are already in place, why then is an access to information law still necessary?
To help answer that question, Rappler, with the support of the Friedrich Naumann Foundation,
analyzed freedom of information laws in other parts of the world. We noted these common featuresin the laws we studied:
an overall policy making information available
limits of access
prescribed process by which information may be accessed, cost of access, and processes
for appealing request refusals
in recent cases measures to ensure that access policies are enforced through oversight
bodies and penalty clauses
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TRANSPARENCY VS CORRUPTION. Giving public access to financial disclosures and budget releases could help
reduce leakage of public funds through corruption
Uneven, selective release of information
In the Philippines, while theCode of Ethicsdoes make it the obligation of government offices to
make public documents available, journalists have found time and again that requests may be
refused without any clear grounds.
Selective release is true even for requests for asset disclosure statements despite the clause in the
law that specifically requires custodians to make such documents available for duplication within 10
days after they have been received.
Three years since the impeachment trial, for example,the House that prosecuted former chief justice
Corona has yet to create rules releasing the disclosure statements of its own members.
In place of SALNs, the House only releases a summary of the wealth of House members in a matrix
that includes the total amount of real properties, personal properties, total assets, liabilities and net
worth of each lawmaker. (READ: Solons from poorest region among richest in Congress).
Rapplersrequest for the full copies of the SALNsof lawmakers, which we file every year, has been
repeatedly denied.
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This is in stark contrast with its co-equal branch, the Senate, which regularly releases the full copies
of statements to media.
TheGovernment Procurement Reform Actalso mandates transparency in the procurement
processes and equal access to information for bidders but stops short of requiring access to the
actual contracts.
Oftentimes, journalists have to go through insiders to get copies of government contracts.
Short of going to court, which can be expensive and time consuming, there is no clear process for
appealing refusals of requests for information.
Bias for access
Instead of confining access to certain types of information, FOI laws generally make access thedefault policy.
The website of theUKs Information Commissioners Officeexpounds on this in instructions to
authorities required to release information:
Remember you (authority) are required to disclose requested information unless there is good
reason not to. It is your responsibility to show why you should be allowed to refuse a request, so it is
in your interests to co-operate fully with our investigation.
In rare circumstances when a public authority persistently refuses to co-operate with us, we canissue an information notice. This is a legally binding notice, requiring an authority to give us the
information or reasons we have asked for.
The UK system simplifies access such that all a person needs to do is to:
contact the relevant authority directly;
make the request (verbal or in writing)
give his real name; and
give an address (postal or email) to which the authority can reply
Instructions on the UK Information Commissioners' website says the requester does not need to
mention the FOI or even know that whether the information is covered by the FOI.He does not even
have to explain why he wants the information.
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This is vastly different from current practice in Philippine government offices where those requesting
for information are required to justify why they should be given access.
Limits to access
Those who are lukewarm to the proposed FOI law claim that this could allow sensitive government
information to fall in the hands of bad social elements, "enemies of the state" or even "irresponsible
media."
But FOI laws also typically set limits of access or grounds for refusal of requests. Among the
countries whose laws were reviewed by Rappler, grounds for refusal usually include a list of
exemptions, which include these types of information:
security, national defense and public safety
information relating to unfinished/ongoing legal proceedings, investigations
trade and business/commercial interests
international relations / diplomacy
administrative matters such as inter or intra agency memoranda
personal privacy
This does not mean that the public is totally barred from accessing such information. In some cases,
information included in the exemptions list may still be accessed if clear public interest is invoked.
This is done in the appeals process.
The FOI laws of Norway, Sweden and Japan specifically state that exemptions may be lifted if need
for access outweighs reasons for exemptions.
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FULL TRANSPARENCY. A law on access to information would address accusations of bias in the release of
information and ensure that reforms will outlive the current administration.
Preserving information
Another important feature of FOI laws in countries Rappler studied are provisions requiring note-
taking, recording and archiving or protecting information.
This is a policy wherein information, especially verbal ones passed on during meetings, are duly
noted down and kept in a journal or register and is properly archived and protected.
In the Philippines, duty to record and from time to time publish congressional proceedings,
including how members of Congress voted, has been constitutionally mandated since as far back as
the 1935 Constitution. The only thing exempted from this mandate were proceedings on matters that
may affect national security.
In practice, however, a significant part of congressional budget proceedings, includingrecords on
amendments to the national budget, never make it to publicly available records.
And while the Aquino administration has indeed undertaken efforts to make budget information more
transparent, information that finally came out following thecontroversy over the Priority Development
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Assistance Fundand theDisbursement Acceleration Program (DAP)clearly show that much about
government financial transactions are still hidden from the public eye.
More on Rappler's coverage of the pork barrel and other discretionary funds here.
Consider this: letters and emails from politicians requesting for release of funds and responses to
such requests would have been part of accessible information if the Philippines had an FOI law
similar to that of Sweden.
Oversight, penalties
One thing that is also clearly missing in the Philippines is a body designated to oversee that access
to information is indeed enforced. There are also no penalties for officials who whimsically refuse
requests for access.
Among the 15 countries in the Rappler study, only Denmark, Norway, Netherlands and Finland have
no independent oversight bodies. The UK, USA, Sweden, Australia, Canada, Ecuador, Germany,
Thailand, Indonesia, Japan all have oversight bodies.
Most oversight bodies are mandated to:
actively oversee the compliance of the law
act as mediator / settle disputes
receive & examine appeals, complaints
in some cases, perform investigations
Oversight bodies need not be new government entities. In the case of Ecuador, Sweden and New
Zealand, existing bodies such as the Ombudsman, the Public Defender & the Chancellor of Justice
were tasked to investigate FOI-related complaints.
Because they already have prosecutorial powers, the functions given to these bodies include
prosecuting offenses.
Penal sanctions are also typical of newer FOI laws, Rapplers study shows.
The United Kingdom, which enacted its first FOI in 2000, penalizes individuals who deliberately
destroy, alter, block access, conceal public info with the intention of preventing disclosure of that info
with a maximum fine of 5,000 British pounds (over US$8,500).
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Much closer to home, the Indonesian FOI punishes officials that deliberately disregard to provide or
publish public information promptly and in the process causes harm to other persons with
imprisonment of up to 1 (one) year a fine of not more than 5,000,000.00 rupiahs (or US$428).
Think of the impact such a policy would have on information that could affect public safety and
welfare.
Proactive publication, open data, citizen audit
Perhaps the biggest argument for enacting an FOI in the Philippines is the need to institutionalize
access to government data and information online in open, machine-readable formats.
Making information immediately accessible online is crucial to transparency as it eliminates backlog
in processing requests for access. Indias quandary,having to manage over 2 million requests for
information, highlights this need.
In addition, given available crowdsourcing technologies, access to open dataparticularly data on
government financial transactionscould prevent corruption as it could empower people to monitor
resources supposedly released to their communities.
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OPEN DATA. Access to budget data will empower the public to participate in the audit of government funds
This helps hasten and widen the scope of the audit and addressaccusations of political bias in the
auditing of public funds. Remember,the report that the Commission on Audit released in
2013covered transactions from 2007 to 2009--almost half a decade too late.
As Budget Undersecretary Richard Moya said, opening up the data would "make auditing
everybody's business."
While the Aquino administration has indeed taken steps to making machine-readable informationavailable to the public through theOpen Data Portal,Rapplers own review of the contents of the
portal shows that available data still falls far short of what is known to be kept by most government
offices. In many cases, only summaries are providednot granular, verifiable data. Data is also not
updated in a timely fashion.
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Clearly, a little push is still necessary to get data guardians in government to share their data. Such a
provision in the law would also help ensure that the initiative will outlast the current administration.
Remember the claim of the Philippine National Police that what may seem like a surge in crime only
meanscrime figures are reported more truthfully now?
It would be interesting to have access to crime data and see how much of what is logged in police
blotters for every station every day actually make it tonational crime statistics.
Balancing act
As Congress continues to dilly-dally on the Philippines' first FOI, it is worth noting that in most of the
countries with right to information laws, these laws have not remained static since they were first
approved.
Changes or amendments were made as part of a balancing act between access, privacy and
national security/ protection of state secrets.
Sweden, the first country to enact a law on Freedom of Information (1776), passed a Secrecy
Ordinance in 1980. In 2009, it balanced access and secrecy throughThe Public Access to
Information and Secrecy Act.
The United States, the first country outside Europe to adopt such a law in 1966, has replaced,
revoked, vetoed, and reinstated provisions of the law so many times as the US government
responded to issues and scandals that rocked the White House.
In 2007, years after the 9/11 tragedy traumatized the country, the US Congress passedThe Open
Government Act of 2007.Clearly, it is possible to balance concerns over security with the need
for transparency.
At the end of the day, its really a question of whether we want to wait for another 3 decades to
recover money lost through corruption, as in the case of the Marcos wealth, or we want to prevent or
reduce corruption and abuse of office by making processes more transparent now. with research
by Nigel Tan, Leilani Chavez and Wayne Manuel / Rappler.com
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NEW HOPE. The house opens anew with its period of interpellation on the passage of the Bangsamoro Basic Law at
the second regular session of the 16th Congress at the House of Representatives in Quezon City on Tuesday, June 2.
Photo by Ben Nabong/Rappler
MANILA, Philippines The 16th Congress adjourned this week so its members could prepare for the
campaign period. When senators and congressmen return to session on May 22 after the nationaland local elections, how much work awaits them in the remaining 3 weeks or 9 session days of
their terms?
A lot, if we are to go by the bills endorsed by President Benigno Aquino III in his last 3 State of the
Nation Addresses (SONAs).
Congress had its last session day on Wednesday, February 3, with only two of the 49 bills endorsed
by Aquino passed. These were the Foreign Investment Act and the establishment of the Department
of Information and Communication Technology.
This doesn't mean, however, that Congress wasn't working hard. Out of their own priority lists,
the House said a total of 116 laws were passed in the last 3 years, while the Senate said a total of 59
bills are awaiting the President's signature to become laws.
Endorsed in SONAs 2013-2015
Rappler listed 49 bills endorsed by the President to Congress at the start of their sessions from 2012
to 2015. We tallied the following:
Passed by both chambers - 2
Passed by the House of Representatives but pending in the Senate - 8
Passed by the Senate, pending in the House - 2
Pending in both chambers - 14
Filed in the House, none in the Senate - 4
Filed in the Senate, none in House - 0
A number of the pending bills seek to improve governance: the amendment of the Civil Service
Code, a national transportation policy, and strengthening the regulation of water utilities.
The pending bills also include the most controversial ones under the Aquino administration: the
proposed Bangsamoro Basic Law (BBL), Freedom of Information Act (FOI) and anti-political dynasty
bill.
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Before the House adjourned for Christmas in 2015, Speaker Feliciano Belmonte Jr said there was
stillhope for these landmark measures. Senate President Franklin Drilon also expressed optimism
on these measures before the year ended.
But after several session days without quorums and with heated debates between parties, the BBL
got stuck in the period of interpellations. The FOI and the anti-dynasty bills, on the other hand, didn't
have any progress in the past weeks. (READ:Bangsamoro Basic Law is not yet dead)
Civil security policies such as the anti-enforced disappearances law and the Whistleblowers
Protection Act were also left unnoticed. The labor sectors much-clamored personal income tax
reform has been considered dead since the Senate and House leaderships gave up on it in late
2015.
Among the important ones awaiting Senate action are the establishment ofspecial education centers
(SPED)in public schools; and economic bills, such as adding P150 billion to the capital ofthe Bangko Sentral ng Pilipinas (BSP) and relaxing the restrictions onforeign investments.
Congress' priorities
Throughout its term, the 16th Congress has been able to enact 17 or 34% of its priorities. These
were mostly economic policies endorsed by the President too. These included laws that seek to level
the playing field among business stakeholders, such as thePhilippine Competition Act and the
Cabotage Law.
Education assistance was also prioritized with the enactment of theIskolar ng Bayan(state scholar)Actand the Unified Student Financial Assistance System for Tertiary Education(UniFAST)Law.
Based on House records, a total of 116 laws were signed under the 16th Congress. Some of the
notable ones are:
An Act Allowing the Full Entry of Foreign Banks
An Act to Deter Illegal, Unreported and Unregulated Fishing
Sugarcane Industry Development Act
Youth Entrepreneurship Act
Microfinance NGOs Act
Increase in the subsistence allowance for members of the police and the military
Regulation of naval architecture to ensure the competitiveness of Filipino shipbuilders
Children's safety aboard motorcycles
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7/25/2019 The Power of Access - Foi
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National Athletes, Coaches, and Trainers Benefits and Incentives Act
Graphic Health Warning Act
Laws on increasing bed capacities in public hospitals
The office of Senate President Franklin Drilon said there are a total of 59 bills awaiting the
President's signature. These include:
Acquisition of road right of way for government infrastructure projects (ROW)
Amendments to the Philippine Deposit Insurance Corporation Charter (PDIC)
Governing the Operations and Administration of the Overseas Workers Welfare
Administration (OWWA)
Providing for the Development and Promotion of Farm Tourism in the Philippines
Mandating the Installation of Speed Limiters and Setting Speed Limits for Public Utility Buses
Expanding the benefits and privileges of Persons with Disability (PWD)
Amending Section 109 (A) and (F) of the National Internal Revenue Code, As Amended By
Republic Act No. 9337 (VAT Exemption for Sugar Cane)
Making Election Service Non-Compulsory For Public School Teachers
Extending the life of the Human Rights Victims Claims Board, to complete its work within four
years from 12 May 2014
Amending the Period of Collection and Utilization of the Agricultural Competitiveness
Enhancement Fund (ACEF)
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