Finally bearing fruit or foiled again?

Twenty-seven years after the late Sen. Raul Roco filed the first freedom of information (FOI) bill, the campaign for an FOI seems on the verge of bearing fruit. A Senate version, “The People’s Freedom of Information Act of 2013,” or Senate Bill No. 1733, was passed by that chamber in 2013 and again on March 10, 2014.

In the House of Representatives, the committee on public information finally approved on Dec. 1 the lower chamber’s own version, “The People’s Freedom of Information Act of 2014.” It was drafted by the Technical Working Group, which included the Right to Know Right Now coalition, after earlier versions were twice killed in 2012 and 2013 for reasons ranging from the supposed absence of a venue for the committee to discuss the bill to a lack of quorum in the plenary.

Quoting from the Constitution, both bills state in their respective declarations of policy (Section 2) that “the State recognizes the right of the people to information in matters of public concern and adopts and implements a policy of full public disclosure of all its transactions involving public interest.” But the bills add the caveat “subject to the procedures and limitations provided by this Act,” in the process suggesting that the constitutional guarantee of the citizenry’s right to information will now, unlike in the past, be subject to legally explicit limitations.

Public right

The Constitution indeed recognizes the right to information. The Supreme Court has also ruled that the right to information is a public right that may be exercised by any citizen. Its exercise by citizens and State implementation is supported and mandated by Republic Act No. 6713 and Executive Order No. 89.

RA 6713 compels government to disclose information on government matters upon request, while EO 89 requires national government agencies to draft and implement procedures for both the public and government agencies to follow when there are requests for government-held information.

Among journalists the consensus some 13 years ago was that government-held information was generally accessible, despite the Philippines’ being among the few countries in Asia without an FOI Act. The Philippines, in fact, led other countries in Southeast Asia in a 2001 study on such access by the Southeast Asian Press Alliance.

More recently since then, however, and especially during the Arroyo regime, obtaining information on government matters has become more difficult and the absence of an FOI law does seem an anomaly in this rumored democracy.

Institutionalizing access to information through an FOI law could—and it is a possibility rather than a certainty—make the release of government information to citizens less subject to the whims of clueless bureaucrats and corruption-ridden administrations with a passion for secrecy.

‘Most barren fields’

It is instructive to note that, despite the present administration’s claim to openness and transparency, attempts by the Philippine Center for Investigative Journalism (PCIJ) in 2011 to obtain information from the Office of the President and the Office of the Ombudsman were frustrated.

The PCIJ described these agencies as “the most barren fields” for harvesting information and documents, particularly on the wealth of senior public officials. Among the documents that these agencies were most secretive, said PCIJ, were statements of assets, liabilities and net worth (SALN).

In the present administration, what has delayed the passage of an FOI Act was the reluctance among the majority members of the House of Representatives to pass such a law—which, however, was apparently driven as well by President Aquino’s own disinclination, apparently based on fears that public and media access to government-held information would compromise “national security” and hamper government agencies’ capacity to make and implement policy by opening those agencies and their officials to excessive public scrutiny.

Misplaced fears

These are misplaced fears based, first of all, on a secrecy mindset that denies the fundamental right of the citizenry to knowledge of government transactions, decision-making and policy. They also ignore the crucial role an informed citizenry can and has played in exposing corruption, and bringing its sovereign power to bear on eliminating or at least minimizing it.

We do not have to look far for an example, the outcome of the 2013 trial of former Chief Justice Renato Corona itself being mostly the result of public awareness and the proactive involvement of advocacy groups.

In the latter days of the martial law period particularly, a citizenry disempowered by the Marcos tyranny managed to acquire, through the alternative press and other sources, the information on corruption and human rights violations that eventually helped lead millions to mass at Edsa and oust the Marcos regime.

Fifteen years later, in 2001, information on his hidden wealth also led to the removal from office of Joseph Estrada and his prosecution for plunder.

In apparent awareness of the crucial role of a public informed on what government is doing in exposing and curbing corruption, the Arroyo administration made concealment of government acts and transactions a policy through, among other tactics, its use of executive privilege to prevent the release of information damaging to it and its Ombudsman restricting access to the SALNs of government officials.

Attacks on journalists

Through a twin policy of default in prosecuting the killers while attacking journalists through libel suits and outright threats, it also encouraged the killing of journalists. It made the Ampatuan Massacre of Nov. 23, 2009 virtually inevitable.

Extrajudicial killings and other human rights violations in furtherance of preventing public exposure of wrongdoing also escalated during the Arroyo regime. But largely unremarked is the connection between human rights violations, the killing of journalists and government corruption. Like the murder of journalists, the killing of community activists, in many cases by such state actors as the police, the military and local officials, is in the majority of cases driven by the conspirators’ need to conceal corruption and criminality.

Corruption, syndicates

Environmental advocates have been killed for exposing and opposing local officials, police and military collusion with illegal logging interests. Research has established that 90 percent of the journalists killed in the Philippines since 1986 were reporting and commenting on corruption and criminal syndicates in the communities.

Journalist Marlene Esperat, for example, was killed in 2005 in Tacurong City, Sultan Kudarat, for exposing the involvement of officials in the local office of the Department of Agriculture in the use of fertilizer funds in the 2004 elections.

There is a necessary connection between eradicating or minimizing corruption, and citizen and news media access to information. But the press and the public can only be assured of meaningful access provided an authentic FOI law is passed in the country.

There is no arguing the need for public access to government-held information, particularly in the context of a situation in which opaqueness in government transactions, among other factors, has been for decades the primary condition for official corruption and other wrongdoing by state actors and agencies to flourish. Hence, the need for an authentic FOI Act.

Whether such a law would indeed guarantee and enhance citizen access to government-held information, of course, depends on whether it meets established international standards.

Citizens’ sovereignty

The basic principle that drives calls for an FOI law is that the citizens in whom sovereignty resides in a democracy require and have a right to information on government matters both to exact accountability from those to whom they have delegated their sovereign power, as well as in behalf of the democratic imperative of participation in decision-making on matters that affect their lives and fortunes.

But the culture of secrecy that has developed in this country, because of, among other reasons, the corruption that has metastasized throughout government and much of society has hardened among the bureaucracy an antipathy toward access to information as both a human right and as central to effective and honest governance.

End culture of secrecy

Dismantling that culture, says Toby Mendel of the Center for Law and Democracy in a 2008 paper (Freedom of Information: A Comparative Legal Survey) for the United Nations Educational, Scientific and Cultural Organization, is indispensable to the promotion of open government.

Among other guiding principles, Mendel listed the following as necessary to the making of an authentic rather than an illusory freedom of information regime:

Maximum disclosure

Obligation to publish, which makes it the duty of government agencies to proactively publish and disseminate information relevant to the citizenry

Limited scope of exceptions. Exceptions—information that may not be accessed

—should be narrowly and clearly specified and must be based on whether the information requested once released will cause harm and/or will be contrary to public interest.

The fundamental issue for over 20 years has been whether an FOI law will pass in Congress. But equally crucial is whether, if Congress does pass an FOI law, it will meet these standards, or will even make access to information more problematic.

Certain provisions of the consolidated bill the House committee on public information has approved, as well as those of the Senate version, will require amendments at the House plenary and the bicameral conference committee, which will reconcile the House and Senate measures to meet the test of authenticity and the realization of an authentic access to information regime.

Limits on access

Ironically, however, Section 5 of the House bill (access to information) immediately sets limits on citizen access to government-held information even before Section 7, which contains the list of exceptions.

SB 1733 simply states in Section 5 that “Every Filipino citizen has a right to and shall, on request, be given access to any record under the control of a government agency … subject only to the exceptions enumerated in Section 7 of this Act.”

The House version partly uses the same language. To the statement affirming the citizen right to information, it adds that “Government agencies and public officials shall have the duty to disclose and make available … all information pertaining to official acts,” but exempts from public access “private acts, transactions or records of public officials,” and declares that the SALNs of public officials “shall be released subject to existing rules and regulations.”

In addition to opening the door to government agencies drafting their own rules and regulations as well as legitimizing existing ones meant to escape the responsibility of releasing SALNs, the same provision also declares that SALNs may be accessed regardless only “upon order of the Sandiganbayan” based on a finding that disclosure may have a bearing on the commission of a crime or offense.

The disclosure of “information pertaining to official acts” is thus subject to such conditions as to make the seeming commitment to the “presumption in favor of access to information” (Section 6) implicit in the second statement practically meaningless.

Paragraph (b) of Section 7 of both the House and Senate versions also bars from citizen access “records of minutes, advice given or opinions expressed during decision-making or policy formulation invoked by the Chief Executive to be privileged—the Senate version adds the phrase ‘by reason of the sensitivity of the subject matter’—by reason of the impairment of the Chief Executive’s deliberative process that would result from the disclosure thereof.”

Minutes, decisions

Only when the decision has been made, or the policy adopted, may minutes of meetings and research data be disclosed, thus preventing citizens, despite the impact on their lives of government decisions and policies, from expressing their views before such policies are adopted and decisions made.

Paragraph (c) further exempts citizen access to information pertaining to national defense, law enforcement and border control when disclosure would, according to subparagraph (i) “compromise or interfere with any legitimate military or law enforcement operation.”

This raises the question of whether this provision would prevent access to information on the apprehension, as well as the circumstances attendant to the apprehension, by the military or police for various reasons during a “legitimate military or law enforcement operation.”

In the Philippine context, where arbitrary arrests, abductions, torture and even extrajudicial killings have been attributed to the police and the military despite the existence of laws prohibiting such practices, there is every possibility that this provision could be used to prevent citizen and media knowledge of such abuses, resulting in even more human rights violations.

No safeguards vs abuse

This provision is particularly problematic for that reason and requires, but does not contain, safeguards against abuse and conditions that would allow access to such information.

Subparagraph (iii) exempts from citizen access information that may deprive a person his or her right to a fair trial. It has been correctly criticized by some journalists as likely to be used to prevent disclosure of corruption and other forms of wrongdoing, on the excuse that the revelation would deny the individual concerned his right to a fair trial by subjecting him to publicity.

The prohibition against the so-called “trial by publicity”—its being in fact cited often even when unwarranted—is often outweighed by the fact that in many cases only media attention has led to the prosecution of public sector offenders.

Meanwhile, Paragraph (f) allows government agencies to redact—to edit or erase—portions of information on the personal life of an individual if its disclosure would constitute an “unwarranted” invasion of his or her privacy. It would make the information sought worthless in such cases as when personal information on a government functionary is relevant to the exposure of wrongdoing.

Information on the private lives of officials, such as the number and names of members of his family, or for that matter, his illicit affairs, could be relevant to the way he exercises official functions and to official corruption. Paragraph (f) would prevent access to such information, despite the fact that the entire country has many times seen the need for information on, and exposure of, the private lives of public officials.

In at least two cases, those of ex-Presidents Fidel Ramos and Joseph Estrada, information on their private lives—in the case of the former, the undue influence of a socialite in governance, and in the latter his numerous households—had a bearing on how both were discharging their official duties.

Sunshine clause missing

Beyond the issue of exceptions is the absence of a sunshine clause which would make information withheld available after a specified time.

Instead, the present bill states (in Paragraph [a]) that requests for information may be denied if “the information is specifically authorized to be kept secret under guidelines established by an executive order … provided that (1) the information directly relates to national security or defense … or (2) the information pertains to the foreign affairs of the Philippines … provided further that the executive order shall specify the reasonable period after which the information shall be automatically declassified…”

The House and Senate versions have practically the same provisions in their Section 7 list of exceptions. Although the Senate version has been unanimously approved by the Senate, neither version has the last word on the final version of the bill. The House version will have to be discussed in plenary session and reconciled with the Senate version in the bicameral committee in which it can still be amended.

Members of Congress who are sincerely for an authentic FOI Act must vigorously work for the amendment of these problematic provisions and for the members of the bicameral conference committee, especially those senators equally committed to such an FOI Act, to address these concerns.

While without an FOI law the citizenry has admittedly had mixed success in combating corruption and other governance issues, a bad FOI law could make that common concern even more problematic.