Freedom of informationBy Fr. Joaquin G. Bernas S. J.
Philippine Daily Inquirer
It is not as if we did not have the right to be informed unless the current bill on the subject is passed. The right is already guaranteed in the Bill of Rights. The question that should be asked is what the Freedom of Information bill hopes to add. Let me first discuss what we already have.
The Bill of Rights now says: “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.”
The original draft of this provision when presented to the Constitutional Commission said that the right to information “shall be afforded the citizens as may be provided by law.” As thus worded, it would have required an implementing law. As found now, the provision is self-executory. What is the present scope of this guaranteed right?
The 1987 Constitution has preserved the 1973 text but with the addition of the phrase “as well as to government research data used as basis for policy development.” The amendment came as a reaction to the government practice during the martial law regime of withholding social research data from the knowledge of the public whenever such data contradicted policies that the government wanted to espouse. The reference, however, is to “government research data,” that is, to the findings of government-funded research and not to the findings of privately funded research over which private proprietary rights might exist.
The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is “subject to such limitations as may be provided by law.” Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law and from what the Supreme Court has called the “inherent power [of an officer] to control his office and the records under his custody and… to exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the record may exercise their rights.” The question then boils down to a determination of the scope of official regulatory discretion.
In determining the allowable scope of official limitation on access to official records, it is important to keep in mind that the two sentences of Section 7 guarantee only one general right, that is, the right to information on matters of public concern. The right of access to official records is given as an implementation of the right to information. Thus, the right to information on matters of public concern is both the purpose of and the limit on the right of access to public documents. Thus, too, regulatory discretion must include both authority to determine what matters are of public concern and authority to determine the manner of access to them.
What are “matters of public concern”? Jurisprudence says that “public concern,” like “public interest,” eludes exact definition and embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen. The right may be asserted even against government-owned and -controlled corporations because their function, analogous to that of government agencies, is to serve the people. Thus, with greater reason it can be asserted against government agencies.
But then there is also the obvious need, especially in matters of national security and foreign relations, of preserving a measure of confidentiality. Thus, the right of the people to information must be balanced against other genuine interests necessary for the proper functioning of government. Jurisprudence on this issue has been gradually developing.
Jurisprudence has enumerated some of the recognized limitations on the right to information. These are:
1. National security matters. These include state secrets regarding military, diplomatic and other national security concerns, and information on inter-government exchanges prior to the conclusion of treaties and executive agreements. Where there is no need to protect state secrets, the privilege to withhold documents and other information may not be invoked, provided that they are examined “in strict confidence” and given “scrupulous protection.”
2. Trade secrets and banking transactions, pursuant to the Intellectual Property Code (Republic Act No. 8283) and other related laws, and to the Secrecy of Bank Deposits Act (RA 1405).
3. Criminal matters or classified law enforcement matters, “such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution.” Otherwise, efforts at effective law enforcement would be seriously jeopardized.
4. Other confidential matters, including diplomatic correspondence, closed-door Cabinet meetings and executive sessions of Congress, and the internal deliberations of the Supreme Court. The Ethical Standards Act (RA 6713) also has some guidelines.
We will await what the proposed Freedom of Information bill will add.
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