Why the Philippines

needs a freedom of
information law
Do we want to prevent or, at the very least, reduce corruption by making
processes more transparent now?

Gemma Bagayaua-Mendoza
@gemmabmendoza
Published 10:45 AM, July 21, 2014
Updated 10:23 PM, August 04, 2015
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

finally recovered around $30 million from multi-million dollar accounts that 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 government’s 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?

The Anti-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 new law
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 a chief justice (Renato
Corona), file cases against corrupt generals and lately, support the filing 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 assets mandate
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.

- Bill of Rights, 1973 Constitution

After the 1986 Edsa uprising ousted the Marcos dictatorship, this right was
further expanded in the 1987 Constitution to 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, that the
constitutional mandate is enforceable.

In fact, the Code of Ethics of government officials—the same law that mandates
public access to financial disclosure statements of government officials—also
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
promoting transparency 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 while the Senate has approved the bill on 3rd
reading, members of the House of Representatives continue 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 features in 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

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 the Code of Ethics does 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).

Rappler’s request for the full copies of the SALNs of lawmakers, which we file
every year, has been repeatedly denied.

This is in stark contrast with its co-equal branch, the Senate, which regularly
releases the full copies of statements to media.

The Government Procurement Reform Act also 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 the default policy.

The website of the UK’s Information Commissioners’ Office expounds 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 can issue 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.

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.

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,
including records 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
the controversy over the Priority Development Assistance Fund and
the Disbursement 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, Rappler’s 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).

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. India’s quandary, having to
manage over 2 million requests for information, highlights this need.

In addition, given available crowdsourcing technologies, access to open data—

particularly data on government financial transactions—could prevent corruption
as it could empower people to monitor resources supposedly released to their
communities.

Duterte signs order on

Freedom of Information
(4th UPDATE) President Rodrigo Duterte signs an executive order mandating full
public disclosure of all offices under the executive branch

Patty Pasion
@pattypasion

Published 10:11 AM, July 24, 2016

Updated 5:12 PM, July 24, 2016

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EXECUTIVE ORDER. President Rodrigo Duterte during a press conference in Malacañang Palace,
June 2016. File photo from Malacañang

MANILA, Philippines (4th UPDATE) – President Rodrigo Duterte has signed an

Executive Order mandating full public disclosure of all offices under the executive
branch, Communications Secretary Martin Andanar announced Sunday, July 24.
Speaking in a press conference in Davao City, Andanar said Duterte signed his
second EO on Saturday, July 23, at 7 pm – two days ahead of his first State of
the Nation Address (SONA).

Andanar said that the draft of the EO had just been finalized by the Presidential
Legal Counsel on Saturday night and that there was "no plan of timing of signing
it yesterday."

Provisions and coverage

The directive covers "all government offices under the executive branch
including, but not limited to, the national government and all its offices,
departments, bureaus, offices and instrumentalities including government-owned
and -controlled corporations, state universities and colleges."

Local government units are also encouraged to "observe and be guided by this
order," according to the EO.

SIGNED. The last page of the 6-page executive order on FOI, signed by President Duterte. Photo
from Malacañang

The order also detailed that information refers to "any records, documents,
papers, reports, letters, contracts, minutes and transcripts of official meetings,
map, books, photos, data, research materials, films, sound and video recording
(magnetic or other tapes), electronic data computer store data or similar data or
materials recorded stored or archived."
The law also "reminds" public officials to file their Statement of Assets, Liabilities,
and Net Worth (SALN) and make it available for public scrutiny.

Exceptions
Filipinos may request for needed information through a letter of request sent to
the concerned office along with a valid proof of identity.

No person requesting for information shall be denied access unless the

information sought "falls under any of the exception enshrined in the constitution
existing law or jurisprudence," the EO stated.

The Department of Justice (DOJ) and Office of the Solicitor General (OSG) must
provide a list of exceptions to be submitted to the Office of the President within
30 calendar days from the effectivity of the EO.

The DOJ and the OSG will also serve as the oversight bodies that will decide on
requests for information that may affect national security.

If the request clearly does not fall under the exceptions identified, the office
concerned should grant and release the request within 15 days, the EO stated.

Heads of agencies and officers who fail to abide by the EO will face
administrative cases, Andanar said.

Congress push in FOI?

But while the signed EO is a landmark action in the long fight for FOI, advocates
still push for its legislation in Congress since the measure only covers offices
under the executive branch.

"We hope that this new administration will continue to pursue the enactment of a
complete Freedom of Information Law through legislation, with provisions
requiring access to particular documents and data in all levels of government,
penalties for public officials and employees who deny such access, and other
components that will truly guarantee transparency, accountability, and people's
participation," FOI Youth Initiative said in a statement.

A progressive youth group, meanwhile, lamented the limitations of the

President's order.

"We note, however, that the new EO also has many limitations. For example, it
clearly states that it will not cover 'exceptions enshrined in the Constitution,
existing law or jurisprudence.' As such, limitations such as the invocation of
'executive privilege' and national security are still there – exceptions that we duly
fought against in the crafting of an FOI bill in Congress," Kabataan Party-List
said.

The FOI saw a push in the 16th Congress when the measure was passed by the
Senate on third and final reading on March 10, 2014. But the House of
Representatives failed to pass its version for concurrence despite former
president Benigno Aquino III naming it as one of his legislative priorities for 2015.
(READ: Homestretch: Will FOI, Bangsamoro, anti-political dynasty bills be dead
in 2016?)

Asked if the new EO will mean the FOI's passage in Congress, Andanar said
Duterte believes in the separation of powers of the executive and legislative
branches.

But presumptive House Speaker Pantaleon Alvarez told fellow lawmakers on

Friday, July 22, that the FOI bill will still be a priority even after Duterte signs the
EO. – Rappler.com

Can Duterte’s FOI order defend our

right to know?
2

BY RICARDO SALUDO ON JULY 4, 2016OPINION ON PAGE ONE

WHAT a difference.

In his first Executive Order upon assuming office, then-President Benigno Aquino 3rd
sought to create the Philippine Truth Commission to investigate his predecessor Gloria
Arroyo’s government.

That set the tone for six years of castigating her and other perceived opponents, while
defending presidential friends.

For his first EO, new President Rodrigo Duterte aims to institute in all agencies under him
the freedom of information (FOI) pledged by Aquino during his election campaign, but
stalled by his administration till his term ended.

That sets a very different tone of transparency and accountability for one’s own rule. Guess
which EO truly advances good governance.
From debate to decree
The idea of an EO to implement FOI came up in this column’s March 8 article. “20 must-ask
questions for the presidentiables” < http://www.manilatimes.net/20-must-ask-questions-for-
the-presidentiables/249065/ >.

One question proposed for the last two presidential debates in March and April was: “In
your first week in office, are you willing to issue an Executive Order to all officials and
personnel in national government agencies and corporations under your authority, as well
as in the Armed Forces of the Philippines and the Philippine National Police, to speedily
provide any information on government actions, policies, programs, and transactions
requested by any citizen, subject to restrictions in law and jurisprudence, plus limits publicly
declared in writing by those state agencies or companies, approved by the President, and
subject to judicial review?”

The question was never asked, but in the March 20 debate, Vice President Jejomar Binay
pledged to issue a freedom of information EO. But rival candidates Sen. Grace Poe, former
secretary Mar Roxas, and Duterte cited cases and accusations against Binay. That ended
further talk on the FOI order.

However, Duterte apparently did not forget the idea. Soon after the May 9 elections, when
most rivals had conceded to him, the President-elect pledged to issue an EO instituting
freedom of information in the executive branch.

“If Congress refuses to pass such a law, I will start on it progressively,” he told media on
May 11. “Let’s cut to the chase. From day one, although this will not be retroactive, since
ordering so will create a very chaotic situation. FOI—I will impose it on my department, the
Executive Department.”

As noted in the proposed debate question, the EO can cover all national government
agencies under the President, all government-owned and -controlled corporations, state
universities and colleges, and the Philippine National Police.

As Commander-in-Chief, President Duterte can also issue a General Order to the Armed
Forces of the Philippines instituting FOI in the AFP, subject to existing confidentiality and
security restrictions governing military information.

And with administration allies dominant in Congress, Duterte could get the FOI law finally
enacted, just as Aquino used his clout in the legislature to block its passage.

Another option to widen FOI’s coverage is for the Civil Service Commission to issue a
bureaucracy-wide Memorandum Circular for all civil servants to provide access to official
information, subject to restrictions in law, jurisprudence, or explicit policies of agencies,
Congress, the Judiciary, and local governments.

As CSC Chairman in 2008 – 09, this writer and his fellow commissioners was set to issue
such a circular. Constitutionalist Fr. Joaquin Bernas reviewed the draft MC and found it in
accord with existing laws and jurisprudence. But one commissioner declined to sign, and
the circular was set aside after this writer’s CSC appointment was rejected by the
Commission on Appointments.

Giving teeth to the FOI EO

There are many FOI measures and studies here and abroad to guide the Office of the
President in drafting the EO. The 2013 bill required access to information, except for the
following items:

• Information specifically authorized to be kept secret under guidelines established by an

executive order, and properly classified

• The records of minutes and advice given and opinions expressed during decision-making
or policy formulation, invoked by the Chief Executive to be privileged by reason of the
sensitivity

• Information pertaining to internal and/or external defense, law enforcement, and border
control

• Drafts of orders, resolutions, decisions, memoranda, or audit reports by any executive,

administrative, regulatory, constitutional, judicial, or quasi-judicial body

• Information obtained by any committee of either house of Congress in executive session

• Personal information of a natural person other than the requesting party

• Information pertaining to trade secrets and commercial or financial information that would
seriously prejudice industrial, financial, or commercial competition

• Information classified as privileged communications in legal proceedings by law or by the

Rules of Court

• Information exempted by law or the Constitution.

The EO may allow government entities to impose their own restrictions on information
access in addition to the general exclusions. But those special protocols must be approved
by the President before they take effect.

Being an act of the President, the EO can impose administrative penalties only, from
reprimand and demotion, to suspension and dismissal. But criminal penalties would require
a law.

To give administrative teeth to the EO, drafters may wish to adopt provisions in the 2007
Anti-Red Tape Act, which required speedy action on frontline services. The EO may classify
information requests among those services, and require agencies to set timetables for
complying with requests. Bureaucrats who delay would face sanctions.
The EO may also make the withholding of information an aggravating factor in
administrative investigations. If a civil servant is found to have concealed pertinent
knowledge in covering up a proven offense, the penalty would be greater.

Will President Duterte’s FOI EO make his government more transparent and accountable?

We’ll have to see the fine print and the actual implementation before passing judgment. One
likely litmus test of the FOI order: access to information on suspects allegedly killed while
resisting arrest.

And there is one indispensable ingredient for freedom of information that no order or law
can bring forth: The public—you and I—must assert our right to know.

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 address accusations of
political bias in the auditing of public funds. Remember, the report that the
Commission on Audit released in 2013 covered 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 information available to the public through the Open Data Portal,
Rappler’s 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 provided—not granular, verifiable data. Data is also
not updated in a timely fashion.

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 means crime 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 to national
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
through The 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
passed The 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, it’s 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