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A Briefer

Freedom of Information (FOI) Bill

The right to information is enshrined in no less than the Constitution of the Philippines, in Sec 7 of the Bill of Rights:
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.

Moreover, Article II (Declaration of Principles and State Policies) Section 28 declares it the policy of the State to adopt and implement a policy of full public disclosure of all its transactions involving public interest.1 NEED FOR AN ENABLING LAW While it is true that the Supreme Court upheld the enforceability of the right to information under the Bill of Rights even without an implementing legislation2, its effective implementation has suffered from the lack of the
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In addition to the foregoing main provisions, there are also specific classes of information that the Constitution requires to be made public: Article XII, Section 21 (information on foreign loans obtained or guaranteed by the government to be made available to the public); Article XI, Section 17 (declaration under oath of the assets, liabilities, and net worth of the President, the Vice President, the members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, shall be disclosed to the public in the manner provided by law); Article VI, Section 16 (4) (both Houses of Congress is required to keep a Journal of its proceedings, and from time to time publish the same); Article VI, Section 20 (records and books of accounts of Congress shall be preserved and be open to the public in accordance with law, and such books shall be audited by the Commission on Audit which shall publish), among many.
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In Legaspi vs. Civil Service Commission (G. R. No. 72119, May 29 1987), the Supreme Court said that the guarantee provisions are self executing; that they supply the rules by means of which the right to information may be enjoyed by guaranteeing the right and mandating the duty to afford access to sources of information. The Court concluded that the right may be asserted by the people without need of ancillary legislation, and where it is denied, the people have recourse to the Courts through a Petition for Mandamus.

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necessary substantive and procedural details that only Congress can provide:

Due to the absence of uniform, simple and speedy procedure for access to information, agencies are thus able to frustrate the exercise of the right. While in legal theory there is no discretion in giving access to information, it remains discretionary in practice. The specification of the coverage of the guarantee, particularly the general rule on what information may be exempted, needs legislation. It is difficult to enforce any available administrative or penal sanctions with the lack of definite procedure and scope for the exercise of the right. Thus, there is no compelling deterrent to the unlawful withholding of information The remedy to compel disclosure, primarily judicial, is inaccessible to the general public. Governments record-keeping system is in a very poor state. There is a very low level of bureaucratic commitment to openness. The cost of access to certain information is excessive.

Moreover, the self executing nature of the provision under the Bill of Rights (duty to allow access upon demand of the right-holder) does not apply to the policy of full disclosure of all transactions involving public interest (duty to disclose without demand) under Article II, Section 28. The latter needs an enabling law to provide the mechanics for compulsory disclosure.3
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In the case of Chavez vs. NHA (G.R. No. 164527, August 15, 2007), the Supreme Court distinguished between the two provisions. It said that Sec. 28, Art. II compels the State and its agencies to fully disclose all of its transactions involving public interest without need of demand from anyone. Under this provision, government must bring into public view all the steps and negotiations leading to the consummation of the transaction and the contents of the perfected contract. In contrast, under the Bill of Rights provision, the interested party must first request or even demand that he or she be allowed access to documents and papers in the particular agency. The duty to disclose without demand covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency. Unfortunately, there is no enabling law that provides the mechanics for the implementation of the compulsory duty to disclose transactions of public interest

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FOIS LEGISLATIVE HISTORY The push for a freedom of information law is not new. In fact, the first attempt to enact such was two decades ago.

The FOI bill was first filed in 1992 by then-Pangasinan Rep. Oscar Orbos. March 10, 2008 House Bill 3732 was filed by Congressman Juan Edgardo Angara. May 12, 2008 - HB 3732 passed the third reading in the House of Representatives during the 14th Congress. June 3, 2009 - The Senate version, Senate Bill 3308, was jointly filed by the Committees on Public Information and Mass Media and ON Civil Service and Government Reorganization; sponsored by Senators Allan Peter Cayetano and Antonio Trillanes IV. December 19, 2009 - SB 3308 was subsequently approved third reading. President Benigno Aquino III was a member of the 14th Congress, and was among those who approved Committee Report 534, regarding SB 3308. The bill narrowly missed enactment as the 14th Congress failed to ratify the bicameral report. During the May 2010 Presidential Elections, Aquino promised to assign first priority to the FOI bills passage into law, however, it has been placed in the backburner upon his assumption to the Presidency. July 1, 2010 - HB 53 was filed by Cong. Erin Tanada. During the same day, the Senate version, SB 11, was filed by Sen. Trillanes. Replying to allegations of Malacanangs doublespeak on the issue of FOI, Undersecretary Manolo Quezon III explained that they are still looking for a happy balance between information provision and confidential government information.

without demand under Article II, Section 28 of the Constitution. The Court observed: It is unfortunate, however, that after almost twenty (20) years from birth of the 1987 Constitution, there is still no enabling law that provides the mechanics for the compulsory duty of government agencies to disclose information on government transactions. Hopefully, the desired enabling law will finally see the light of day if and when Congress decides to approve the proposed Freedom of Access to Information Act.

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July 21, 2011 - During his State of the Nation Address a year since his assumption of office, Pres. Aquino argued that the right to know carries with it responsibilities - to use the information available in context; to present facts fairly; and to be conscious of some elements who may want to use information not to inform the public, but to rather inflame them. June 4, 2011- SB 11 (substituted by SB 3208, under Committee Report No. 156) was sponsored by Sen. Gregorio Honasan as chairman of the Senate Committee on Public Information. 22 of 23 senators endorsed the committee report, guaranteeing its immediate passage before the upper chamber. On the other hand, the House version, HB 53, is still pending with the Committee on Public Information (since July 27, 2010), chaired by Cong. Ben Evardone. There are 14 other versions of the bill pending in the House committee. Cong. Rodolfo Antoninos version of the FOI legislation includes a right of reply provision, such that, government officials who might be involved in issues arising from the release of public documents through FOI should be given the opportunity to reply in the same space of the printed material or in the same radio or television program where the issue was tackled. February 2/3, 2012 Malacanang, through the Budget and Management Secretary Florencio Abad, transmitted a proposed substitute Freedom of Information bill to the House Committee on Public Information. February 10/12, 2012 Cong. Tanada submitted a substitute FOI bill, incorporating some amendments endorsed by Malacanang.

SALIENT POINTS OF THE ORIGINAL TANADA BILL

1. An expansive scope in terms of government agencies as well

as information covered. (Sec. 4)

Information shall mean any knowledge, record, document, paper, report, letters, contract, minutes and transcripts of official meetings, maps, books, photographs, data, research material,
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film, sound and video recordings, magnetic or other tapes, electronic data, computer stored data, or any other like or similar data or material recorded, stored or archived in whatever form or format, which are made, received or kept in or under the control and custody of any government agency pursuant to law, executive order, rules and regulations, ordinance or in connection with the performance or transaction of official business by any government agency.

Government agency shall include the executive, legislative and judicial branches as well as the constitutional bodies of the Republic of the Philippines including, but not limited to, the national government and all its agencies, departments, bureaus, offices and instrumentalities, constitutional commissions and constitutionally mandated bodies, local governments and all their agencies, regulatory agencies, chartered institutions, government-owned or controlled corporations, including whollyowned or controlled subsidiaries, government financial institutions, state universities and colleges, the Armed Forces of the Philippines, the Philippine National Police, all offices in the Congress of the Philippines including the offices of Senators and Representatives, the Supreme Court and all lower courts established by law. Official records shall refer to information produced or received by a public officer or employee, or by a government agency in an official capacity or pursuant to a public function or duty, and is not meant to be a stage or status of the information. Public records shall include information required by law, executive orders, rules, or regulations to be entered, kept and made publicly available by a government agency.

2. Legal presumption in favor of access to information.

Government agencies have the burden of proof of showing that information requested is exempted from disclosure. (Sec. 5)
3. A narrow list of clearly defined and reasonable exceptions:

(Sec. 7) Those pertaining to national defense

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Those related to the countrys foreign affairs Those related to military and law enforcement operation Personal information about private individuals Industrial, financial, or commercial secrets of individuals or entities Drafts of decisions by any executive, administrative, judicial, or quasi-judicial body

4. Public Interest override. Even when the information falls within the

exceptions, citizens are given an opportunity and right for citizens to override such exception whenever there is greater public interest in the disclosure of information. (Sec. 8)
5. Clear, uniform and speedy procedure for access to information.

(Sec. 9)
6. Proscription against excessive costs of access to information.

(Sec. 10)
7. System of accessible and speedy remedies that a citizen who has

been denied access to information may resort to. (Sec. 13)

8. Mechanics for the compulsory duty of government agencies to

disclose information on government transactions involving public interest pursuant to Article II, Section 28 of the Constitution. (Sec. 14)
9. Mandate to maintain records and promote a culture of

openness within government. (Secs. 15 & 16)

10. Clear administrative, criminal and civil liability for violation of

the right to information. (Sec. 17) OPPORTUNITIES FOR FDCS CAMPAIGNS AND ADVOCACIES For so long, we have grappled with public offices and their flimsy excuses in order for us to get copies of official documentsfrom loan and independent power producer (IPP) contracts that would have hastened and reinforced the efforts of debt audit initiative in 2008, to the text of the proposed JapanPhilippines Economic Partnership Agreement (JPEPA) which would have
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helped further expose the treason by our negotiators at the expense of the Filipino people. Without any other options, instead, we have relied almost solely and heavily on leaks and tips, which while are very helpful in setting the initial direction of propaganda and legislative engagement, cannot be the basis of sustainable and comprehensive assaults involving all legislative, executive, and judicial arenas. Without legislation on freedom of information, requests for official information are often refused, or delayed, sometimes for years. At times, poor information management is to blame. But all too often, this happens because of a culture of secrecy and a lack of accountability. The FOI law would open invaluable opportunities for our campaigns. Clear, uniform and speedy procedure and the legal presumption in favor of access will enable us to easily and promptly get a hold of evasive illegitimate debt and ODA contracts; minutes of the Monetary Board, PSALM and MWSS Board meetings and ERC hearings; onerous IPP contracts; the books of PSALM and NAPOCOR; bid and procurement documents; unsolicited BOT/PPP proposals; feasibility studies; among many. Even if the requested information falls under one of the strictly construed exceptions, the FOI law provides for a mechanism for the public to argue the greater public interest in disclosure than in the harm sought to be protected by such exception. Further, the clear system of accessible and speedy remedies will allow us to have alternative recourse in case of refusal to our demand to access information. Most significantly, the mechanism for compulsory disclosure of information on government transactions involving public interest in the FOI law will allow us to access relevant information that we do not even know of yet. It cannot be repeated enough that the realization of the constitutional mandate more than two decades ago for an enabling law for freedom of information is long overdue. We will not accept any reason to further delay the passage of the Freedom of Information Act, not later, not after the adjournment of the 15th Congress. The Freedom of Information Act is a key to Freedom from Debt and to Economic Justice. Right to know, right now!

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REFERENCES 1987 Constitution of the Republic of the Philippines. Briefer on the Proposed Subsitute Freedom of Information Bill of 2012. http://www.gov.ph/downloads/2012/02feb/Pamphlet-Briefier-Proposed-FOIBIll-2012.pdf House Bill 3732. Fourteenth Congress of the Republic of the Philippines. http://www.congress.gov.ph/download/billtext_14/hbt03732.pdf House Bill No. 11. Fifteenth Congress of the Republic of the Philippines. http://www.congress.gov.ph/download/basic_15/HB00053.pdf Malaluan, Nepomuceno A. (2009). RIGHT TO KNOW, RIGHT NOW! http://pcij.org/resources/nepo-malaluan-right-to-know-right-now.pdf Revised Proposed Consolidation of the Freedom of Information Bills (10 February 2012). Submitted by Deputy Speaker Lorenzo Tanada III to the House Committee on Public Information. http://ifoi.ph/wpcontent/uploads/2012/02/Rep-Erin-Proposed-Substitute-FOI-bill-13-Feb2012.pdf Senate Committee Report No. 534. Fourteenth Congress of the Republic of the Philippines. http://www.senate.gov.ph/lisdata/1168610296!.pdf Senate Bill No. 11. Fifteenth Congress of the Republic of the Philippines. http://www.senate.gov.ph/lisdata/73795943!.pdf