Defeating the spirit of FOI     

It is unfortunate that the first act of the Marcos administration with regard to Freedom of Information (FOI) was to impose more limitations on documents and government-held information that the public can access.

Memorandum Circular No. 15, issued on March 17 by Executive Secretary Lucas Bersamin with authority from President Marcos, added more exceptions to public documents that can be accessed freely under Executive Order No. 2, the FOI circular issued by former president Rodrigo Duterte, which covers the executive branch.

The expanded list of information excluded from public disclosure includes records of surveillance and wiretaps of terror suspects under the controversial Anti-Terrorism Act of 2020; investigations by the Presidential Anti-Corruption Commission; state attorney-client privilege; information and court proceedings deemed confidential; cases of gender-based sexual harassment on streets and public spaces, and children in situations of armed conflict. Before these additional exceptions were prescribed, the Duterte-issued EO already listed a wide range of information that the public cannot access, which is contrary to the EO’s policy of “full public disclosure” of government transactions.

While the Duterte EO and the Marcos memorandum call for a “meaningful exercise of the public of their right to access to information on public concerns,” the exceptions and the wide latitude given to agency heads to determine which information can or cannot be disclosed defeat the spirit and purpose of the FOI. To recall, the FOI lays down “a policy of full public disclosure of all its transactions involving public interest, subject to reasonable conditions prescribed by law.”

To his credit, Duterte’s issuance in 2016 of EO 2 struck the right note with its policy of an open exchange of information to enhance transparency and accountability, with guidelines provided on how to request and release information covering the executive branch.

Despite that stated intention, however, journalists and private individuals have faced difficulties and were often rebuffed in their request for important documents, such as the costs of the President’s foreign trips, or the statement of assets, liabilities, and net worth (SALN) of the President and other officials. In September 2021, Ombudsman Samuel Martires issued a circular prohibiting the release of the SALN without authorization from the concerned official. He specifically denied the release of Duterte’s SALN.

The SALN is a tool against corruption and is required both by the Constitution and the law prescribing the code of conduct and ethical standards for public officials. This means that information about foreign travel expenses, and how the government spends taxpayer money, such as the billions disbursed for the COVID-19 pandemic response, should be made available for public scrutiny if only to expose possible anomalous deals. But as this paper has reported, Malacañang denied in November last year its request for information on the costs of Mr. Marcos’ trips since 2022 and the list of members of his delegation.

Implementation of the EO has also been slow in local governments, which are vital frontline agencies delivering public services to the people. Open Government Partnership (OGP), a global group composed of government officials, civil society, business, and nonprofits espousing transparency, noted that only 28 local government units out of 1,488 municipalities and 42,046 barangays in the Philippines have passed their own FOI ordinances.

As EO 2 does not cover the legislature and the judiciary, the question now is when and whether the Senate and the House of Representatives can muster enough political will to finally pass an FOI act covering all three branches of government. The OGP noted that no FOI bill had been passed 30 years since the first measure was filed in Congress. Indeed, FOI bills remain pending at the committees in the Senate and the House, both of which have not included the measure as a priority. Similarly, Mr. Marcos has not included this in his priority bills endorsed to Congress despite earlier campaign pronouncements that he favors an FOI law.

As the OGP stressed, “Lack of transparency and accountability, which may contribute to corruption and inefficient public service delivery, are a few of the major problems that this commitment [to pass an FOI act] will address.”

Indeed, the additional exceptions being made on the EO’s coverage have only diluted the provisions and spirit of the FOI, a blow to the constitutional mandate guaranteeing people’s right to information on matters of public concern. This should spur citizens to assert their right to access public information if only to make the government accountable for policies and decisions affecting their lives. But if people themselves care little about knowing the goings-on in government, even the most open FOI law would be useless.