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the long

march to
transparency:

DR. francisco a. magno


the long
march to
transparency
institutionalizing foi in the
:
philippines
DR. francisco a. magno
Copyright 2017 by Albert Del Rosario Institute
for Strategic and International Studies

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Stratbase ADR Institute
The Stratbase Albert del Rosario Institute (ADRi) is an independent international
and strategic research organization with the principal goal of addressing the issues
affecting the Philippines and East Asia.

Victor Andres Dindo C. Manhit


President, Stratbase-Albert del Rosario Institute (ADRi)

BOARD OF TRUSTEES
Ambassador Albert del Rosario
was the Secretary of Foreign Affairs of the Philippines from 2011 to 2016. He also served as
Philippine Ambassador to the United States of America from 2001 to 2006.

Manuel V. Pangilinan
is CEO and managing director of First Pacific Company Limited. He is also the chairman of
MPIC, PLDT, Meralco, and Smart Communications, among others.

Edgardo G. Lacson
is an honorary chairman of the Philippine Chamber of Commerce and Industry (PCCI). He
was the former president of the Employers Confederation of the Philippines.

Benjamin Philip G. Romualdez


is the former president of the Chamber of Mines of the Philippines.

Ernest Z. Bower
is senior adviser for Southeast Asia at the Center for Strategic and International Studies
(CSIS). He is CEO of BowerGroupAsia (BGA), and a leading expert on Southeast Asia.

Renato C. de Castro, Ph. D


is a full professor of international studies at De La Salle University Manila (DLSU). He
holds the Charles Lui Chi Keung Professorial Chair in China Studies.

Judge Raul C. Pangalangan, Ph. D


is a judge of the International Criminal Court. He was previously a dean of the University of
the Philippines College of Law and publisher of the Philippine Daily Inquirer.

Epictetus E. Patalinghug, Ph. D


is a professor emeritus at the Cesar E.A. Virata School of Business, University of the
Philippines (UP), Diliman.

Francisco A. Magno, Ph. D


is the executive director of the Jesse M. Robredo Institute of Governance and former President
of the Philippine Political Science Association. He is a professor of political science at DLSU.

Carlos Primo C. David, Ph. D


is a professor of Geology and Environmental Science in UP Diliman. He heads the Philippine
Council for Industry, Energy and Emerging Technology Research and Development.
CONTENTS

Executive Summary viii

Introduction 1

Fostering Participation 2
Promoting Human Rights 3
Holding Governments Accountable 3
Leveling the Playing Field 4

The Global March of FOI 4

FOI Under International Law 7

Protecting FOI in the Constitution 7

Enabling FOI through Legislation 8

FOI in the Executive Branch 9

Main Features of an FOI Regime 10

Maximum Disclosure 11
Obligation to Publish 11
Promotion of Open Government 12
Limited Scope of Exceptions 14
Processes to Facilitate Access 15
Affordable Cost 17
Disclosure Takes Precedence 17
Protection of Whistleblowers 18

Need for an FOI Law 19

Conclusion 20

References 27

Acknowledgments

About the Author



EXECUTIVE SUMMARY
This study shares the view that transparency has public value as a tool in fostering
participation, promoting human rights, holding governments accountable, and
leveling the playing field in business. It looks at how transparency mechanisms,
especially through Freedom of Information (FOI) policies, emerge in the world.
Around 95 countries across the globe have FOI legislation.
In the Philippines, the march to transparency has been slow and incremental,
although FOI provisions were integrated into the 1987 Constitution. In 2016, President
Rodrigo Duterte signed an order to operationalize FOI in the executive branch of the
government. Despite this advance, a law is still needed to institutionalize the right to
information and appropriate funds for its implementation. FOI legislation will lead to
a budget to respond to the demand for public records and will promote the proactive
disclosure of information.
A key reason to institutionalize FOI is to foster participation; information
breathes life into participation. In newer democracies, FOI policies have become a
major instrument for promoting human rights. Most newly developed constitutions
in countries that went through democratic transitions include provisions on FOI.
Moreover, FOI policies support a competitive market by leveling the playing field and
reducing information asymmetry. Institutionalizing transparency through an FOI
law sends a positive message to the private sector that it is safe to do business in the
country.
Several features are needed to establish an effective FOI regime anchored on
international standards and best practice models. Eight elements are discussed in this
study: maximum disclosure, obligation to publish, promotion of open government,
limited scope of exceptions, processes to facilitate access, affordable cost, priority for
disclosure, and the protection of whistleblowers.
The eventual FOI law should provide the general public with access to information
from all three branches of government. It should cover not only national offices, but
also local government units. The mandatory disclosure of documents, as well as the
steps for accessing these documents, should be clearly specified in the law. Second,
FOI legislation should foster a culture of open government. With the adoption of
open data policies, governments are required to publish information in transparency
portals.
The principles of transparency, maximum disclosure, and obligation to publish,
as well as the principle of open government, should all be reflected in the FOI
law. The law should acknowledge the role of knowledge brokers and information
intermediaries, who help citizens navigate FOI systems, and provide a clear system
of administrative and criminal penalties for non-compliance. Moreover, a robust FOI
law would require an independent oversight agency. Lastly, the institutional design
for FOI implementation can be strengthened through a system of incentives.

viii
The Long March to Transparency:
Institutionalizing FOI in the Philippines
FRANCISCO A. MAGNO, Ph.d

T ransparency creates public value when it is wielded as a tool to exact


accountability from government officials and ensure effective policy
implementation (Ball 2009). Providing citizen access to data and to records of
official rules and transactions strengthens public participation in monitoring
government performance. The road to transparency takes longer to navigate when
political gatekeepers favor secrecy to openness (Berliner 2014).
The transparency debates revolve around concerns regarding the ownership
of information collected by government. The question is whether data gathered
with the support of public funds should be placed under the exclusive control of
government or whether such data should be freely accessible in the public domain.
It was strongly argued that information acquired through state finance should be
considered public assets that are open for scrutiny (Stiglitz 1999).
Aside from ownership issues, the quality of government data matters in
delineating between formal versus useful transparency. According to Cucciniello
and Nasi (2014), formal transparency is anchored on legal compliance with the
process of providing public access to required documents. On the other hand,
useful transparency is concerned with supplying information that is meaningful
and relevant to citizens.
This study shares the view that transparency has public value as a tool in fostering
participation, promoting human rights, holding governments accountable, and
1
2 the long march to transparency

leveling the playing field in business. It looks at how transparency mechanisms,


especially through Freedom of Information (FOI) policies, emerge in the world.
The increased prominence of FOI in policy discourse has been seen in how it was
enacted into law in many countries over the last few years.
In the Philippines, the march to transparency has been slow and incremental.
FOI provisions were integrated into the 1987 Constitution, but passing a law in
Congress has been an uphill climb. In 2016, newly elected President Rodrigo
Duterte signed an order to operationalize FOI in the executive branch of the
government. Given this context, it is important to examine the current FOI policy
architecture in relation to international standards and identify additional steps
needed to institutionalize FOI in the Philippines.

Fostering Participation

A key reason for institutionalizing FOI is to foster participation. Information


breathes life into participation. A human rights organization, ARTICLE 19, describes
information as the oxygen of democracy (ARTICLE 19: Global Campaign for Free
Expression 1999). In a democracy, various mechanisms are set up to enable citizens
to participate in decision-making that shapes public life. Citizen engagement is
not limited to voting in elections but extends to participatory planning, budgeting,
monitoring, and auditing processes. To be effective participants in democratic
discourse and collective action, citizens need access to information. Effective
participation in citizen oversight bodies and legislative committee hearings depends
on access to information, including data in the hands of public agencies (Mendel
2008).
It is important that public information is widely available in a political system
in which citizens occupy a prominent role in government decision-making
(Stubbs 2008). The enactment of a right to information or FOI law can promote
accountability in the bureaucracy by balancing the power relationship between
citizens and government functionaries (Webb 2010). However, the effort to
institutionalize the right to information should be linked to the broader social and
political dynamics that influenced the integration of transparency in the modern
state (Meijer 2015).
Institutionalizing FOI in the Philippines 3

Promoting Human Rights

In newer democracies, FOI policies have become a major instrument for promoting
human rights. They provided an information window for human rights victims and
their families who suffered under authoritarian rule. In 2002, President Vicente Fox
of Mexico called for the declassification of the files on human rights abuses so that
families could find out what happened to their loved ones who disappeared. In the
United States, the National Security Archive processed thousands of information
requests on records pertaining to human rights abuses in Mexico, Peru, and Chile.
The data were then forwarded to aid in the work of the Truth Commissions in these
countries (Banisar 2006).
Most newly developed constitutions in countries that went through democratic
transitions include provisions on FOI as a basic human right. In the aftermath of
the dissolution of the Soviet Union, most Central and Eastern European countries
crafted laws concerning access to the files of the former secret police forces. In some
countries, these files were made available to individuals to see what is being held on
them. In other countries, the records of individuals who were in the previous secret
services were made public and these individuals were barred from serving in the
current government (Banisar 2006).

Holding Governments Accountable

The traditional view of public administration vests in government the sole


ownership of public information. This perspective restrains government from
providing citizens with open access to information. However, new collaborative
approaches stress the benefits of government working with citizens to utilize public
data to improve policy results. Strengthening transparency enhances a governments
relations with its citizens and contributes toward holding governments accountable,
especially in the use of public funds (Sandoval-Almazn 2011).
Holding governments accountable requires more than the formal passage of
FOI legislation. At the local level, citizen groups and communities can engage
in participatory budgeting, monitoring, and auditing to make local governments
accountable. The effectiveness of FOI policies can be gauged by assessing changes in
4 the long march to transparency

the culture of local governments. FOI is not just a matter of formal compliance with
the requirements of supplying public information, but a tool for building inclusive
institutions that empower citizens to use government data for social accountability
(Anand 2011).

Leveling the Playing Field

FOI policies support a competitive marketplace by leveling the playing field.


Transparency reduces information asymmetry. Institutionalizing transparency
through an FOI law sends a positive message to the private sector that it is safe
to do business in the country. Information on business contracts, investment
opportunities, and regulatory changes are available. The FOI law can be used by
companies to monitor whether regulators are acting fairly and refraining from
giving special concessions to favored firms (Frankel 2001).
The Organisation for Economic Co-operation and Development (OECD)
produced the Principles for Integrity in Public Procurement, with provisions that
highlight the need for transparency in the procurement process. Transparency
guarantees are especially needed in public procurement where huge transactions
occur. The provision of sufficient transparency measures in the whole procurement
cycle will minimize the risk of fraud and the misuse of public funds. The
accessibility of information, the participation of stakeholders in the key stages of
the procurement cycle, and the possibility of review and remedy in case of disputes
are critical in strengthening transparency and accountability in public procurement
(OECD, 2009).

The Global March of FOI

The first FOI law was made in Sweden in 1766. The Freedom of the Press Act was
conceived by a parliament that wanted to gain access to information controlled by
the King. It would take almost two centuries before another right to information
law was passed. Finland, which used to be part of Sweden, enacted its version of the
policy in 1951. The United States passed its own access to information law in 1966.
Institutionalizing FOI in the Philippines 5

This was followed by legislation in France (1978), Australia (1982), New Zealand
(1982), Canada (1983), and Colombia (1985).
There are now 115 countries with FOI regimes, based on a list prepared by
www.freedominfo.org. While it has yet to pass an FOI law, the Philippines is
considered to have a nascent FOI regime. This is by virtue of Executive Order No.
2, which operationalizes for the executive branch the peoples constitutional right
to information and the states policies of full disclosure and transparency in public
service. It was signed by President Rodrigo Duterte on July 23, 2016. For the list of
countries with FOI regimes, see Table 1.
6 the long march to transparency
Institutionalizing FOI in the Philippines 7

FOI Under International Law

The basis for FOI under international law was laid down in two landmark
documents: the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. The Universal Declaration of Human
Rights was adopted by the United Nations (UN) General Assembly in 1948. It is
recognized as the flagship statement of international human rights. Article 19 of
the declaration underscores the right to freedom of expression and information.
It states that everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of frontiers.
The International Covenant on Civil and Political Rights, a legally-binding treaty,
was adopted by the UN General Assembly in 1966. This international covenant
guarantees the right to freedom of opinion and expression (Mendel 2008).
Guided by international law, many countries inked provisions that embed FOI in
their respective constitutions. There are already 59 nations in the world, including
the Philippines, where the right to information receives specific constitutional
recognition.

Protecting FOI in the Constitution

Sweden offers an interesting case. Its 1766 FOI law has constitutional status.
The policy contains comprehensive provisions on the right to information.
Many countries which transitioned to democracy have incorporated the right to
information in their fundamental law. These include Bulgaria (1991 Constitution,
Article 41), Romania (1991 Constitution, Article 31), Estonia (1992 Constitution,
Article 44), Lithuania (1992 Constitution, Article 25), Malawi (1994 Constitution,
Article 37), Poland (1997 Constitution, Article 61), South Africa (1996 Constitution,
Section 32) and Thailand (2007 Constitution, Section 56; Mendel 2008).
In the Philippines, the right to information had been recognized on paper as
early as the 1973 Constitution. Article 4 (6) indicates 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,
8 the long march to transparency

or decisions, shall be afforded the citizen subject to such limitations as may be


provided by law. Considering that the country was under authoritarian rule from
1972 to 1986, the constitutional provision on access to information was honored
more in its breach rather than in its observance.
Following the fall of President Ferdinand Marcos and the return of democracy
in 1986, a new constitution was ratified in 1987. Under the new constitution, the
right to information was further expanded to include access to research data that
could be used as a basis to develop policy. It was stressed in Article 3 (7) that 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 limitations as may be
provided by law.
While there is no enabling law yet on access to information, the Supreme
Court has already ruled, on more than one occasion, that the said constitutional
mandate is enforceable. In Legaspi vs. Civil Service Commission (1987), the high
court decided that the Constitution requires government agencies to provide
information upon request; if they do not want to disclose information they carry
the burden of proving that the information is not of public concern, that the
information has been specifically exempted by law. It was similarly ruled in Garcia
vs. Board of Investments (1989) and Chavez vs. National Housing Authority (2007)
that government agencies carry the duty to permit access to information related to
public policies and projects.

Enabling FOI through Legislation

The passage of enabling FOI legislation will lead to the allocation of a budget for
mechanisms to respond to the demand for public records and will promote the
proactive disclosure of information. Around 95 countries across the globe have
existing FOI legislation. They are referred to by various names. The oldest is
Swedens Freedom of the Press Act of 1766. The United States has the Open Records
Laws. These sets of rules are also called the Sunshine Laws. Canada has the Access
to Information Act, which permits citizens to request information from federal
Institutionalizing FOI in the Philippines 9

agencies. On the other hand, Colombia has Law 57. This 1985 policy directs the
publication of official acts and documents. This works in tandem with Law 190
or the Anti-Corruption Act, which mandates government units to post all the
contracts and purchases in open areas on a monthly basis.
Even as the world surges to allow access to public data through legislation, the
deliberations for the passage of an FOI law in the Philippines proceed in a slow
march. It has been more than three decades since the first FOI bill was submitted
in Congress. In 1988, House Bill No. 498 was filed by Rep. Raul Roco. In 1993,
civil society groups were formed to campaign for FOI legislation. During the 11th
Congress, a right to information bill passed the third reading in the House of
Representatives in 2001. However, there was no counterpart bill in the Senate.
Despite being part of the priority legislative agenda of President Benigno
Simeon Aquino III, the FOI bill was not passed during the 16th Congress. The FOI
bill was approved in the Senate in March 2014. At the House of Representatives,
it was approved by the Committee on Public Information in November 2014 and
in the Committee of Appropriations in March 2015. Nevertheless, the bill was not
scheduled for plenary deliberations before the closing of the 16th Congress.
Several versions of the FOI bill were refiled in both the upper and lower chambers
of the 17th Congress. In June 2016, House Bill No. 334, entitled An Act to Ensure
Public Access to Official Records, Documents and any other Information of Public
Concern, was filed in the House of Representatives. In October 2016, the Senate
Committee on Public Information and Mass Media submitted Senate Bill No. 1208
or the Peoples Freedom of Information Act, which consolidates 14 other bills. This
will be taken up during the plenary debates in the Senate.

FOI in the Executive Branch

In parallel with the push to pass a law in Congress, Executive Order No. 2 was
issued on July 23, 2016, during the first month of the Duterte presidency. This
policy operationalizes the peoples constitutional right to information in the
executive branch of government. It provides that every Filipino shall have access to
information, official records, public records, and documents and papers pertaining
to official acts, transactions or decisions, as well as government research data used
as basis for policy development.
10 the long march to transparency

Under Executive Order No. 2, information is defined as records, documents,


papers, reports, letters, contracts, minutes and transcripts of official meetings, maps,
books, photographs, data, research materials, films, sound and video recordings,
magnetic or other tapes, electronic data, and computer-stored data, whether offline
or online, which are kept under the custody of any government office pursuant to
rules or in connection with the performance or transaction of official business by
any government office. Citizens will have access to the research data that were used
as evidence in policy development.
Government personnel are also reminded of their obligation to file their
Statement of Assets, Liabilities and Net Worth (SALN). While providing access
to public information and official records, responsible officials shall accord full
protection to the right to privacy of individuals. Each agency is expected to ensure
that personal information in its custody is released only if it is relevant to the
subject of the request and its disclosure is permissible under existing laws, rules or
regulations.
Under Memorandum Order No. 10, signed by the Executive Secretary on
December 20, 2016, the Presidential Communications Operations Office (PCOO) is
assigned to coordinate the implementation of the FOI program. The responsibilities
of the PCOO include the preparation of a model FOI manual, as well as the
creation of guidelines for the executive branch, including government-owned
and controlled corporations (GOCCs) and state universities and colleges (SUCs).
Aside from monitoring compliance, it will develop programs and mechanisms to
build the capacity of all agencies in the executive branch. The PCOO will help local
government units (LGUs) in drafting local FOI ordinances. It will also conduct
education and communication campaigns on the right to information.

Main Features of an FOI Regime

There are several features needed for establishing an effective FOI regime anchored
on international standards and best practice models. Eight elements are discussed
here: maximum disclosure, obligation to publish, promotion of open government,
limited scope of exceptions, processes to facilitate access, affordable cost, priority
for disclosure, and the protection of whistleblowers. The Philippines existing rules
and regulations will be examined based on these key elements.
Institutionalizing FOI in the Philippines 11

Maximum Disclosure

The principle of maximum disclosure emanates from the need to foster transparency
for a broad scope of official records and information sets. The scope of the right to
information covers a wide range of government bodies, as well as the individuals
who may claim the right. International NGOs, such as ARTICLE 19, take a robust
approach, where access to information is viewed as a human right, calling for the
definition of public bodies to focus on the type of service provided rather than
formal designations. This emanates from acknowledging that every legitimate
secrecy interest can be addressed through an appropriate regime of exceptions
(Mendel 2008).
As a key feature of the FOI, maximum disclosure means that all branches and
levels of government, including local governments, elected bodies, offices which
operate under a statutory mandate, nationalized industries and public corporations,
judicial entities, and private enterprises that carry out public functions, including
road maintenance and rail operations, are covered. Private institutions are included
if they hold information whose disclosure is likely to diminish the risk of harm
to key public interests, such as the environment and health. Inter-governmental
organizations are also subject to freedom of information regimes (Mendel 2008).
The existing FOI regime in the Philippines has limited coverage when seen
in the context of the maximum disclosure principle. Executive Order No. 2 only
covers government offices, departments and bureaus under the executive branch,
as well as public corporations and colleges. The executive order does not apply
to the legislature, judiciary, and even LGUs that are nonetheless encouraged to
observe the policy.

Obligation to Publish

An FOI regime does not stop with compelling public offices to respond to requests
for information from citizens. It should be able to oblige governments to publish
and disseminate major types of information even without a request (Mendel 2008).
For instance, the report of the UN Special Rapporteur stressed that FOI implies
that public agencies should extensively publish and disseminate documents of
12 the long march to transparency

significant public interest, such as operational information about the functions of


public bodies and the content of any decision or policy affecting citizens (United
Nations 2000).
The capacity to fulfil this obligation may be hampered by resource constraints.
By leveraging information and communications technology, the scope and volume
of the information covered should expand over time. The long-term objective is for
the government to proactively publish information as a matter of routine. This will
minimize the need for citizens to resort to requests for public information (Mendel
2008).
It was under the Aquino administration that the Philippine government started
systematic efforts to proactively publish information, even without citizen request,
through electronic means. The Open Data Portal at www.data.gov.ph was launched
in 2014. For the past three years, the government has uploaded more than 3,300
data files on public expenditures and other information from various agencies.
Originally housed at the Department of Budget and Management (DBM), the
Open Data platform is now lodged with the Department of Information and
Communications Technology (DICT). The PCOO also contributes to the Open
Data initiative by incorporating it as a major component of the FOI program.

Promotion of Open Government

FOI thrives on the promotion of open government. This entails confronting the
culture of secrecy that pervades public institutions. Intensive efforts are needed
to bring state officers to the side of transparency. The argument has to be made
that the road to transparency is not an additional burden but, rather, an essential
direction towards respecting the right to information.
In many places, a major barrier to getting information is the sad condition
in which data are stored. Public officials are either unaware or unable to locate
information under their custody. Weak record management impairs not only access
to information but also the effective delivery of public services (Mendel 2008).
In the Philippines, the promotion of open government is part of the FOI
program that was launched by the PCOO in November 2016. Each agency within
the executive branch was ordered to submit its FOI Manual to the Office of the
Institutionalizing FOI in the Philippines 13

Executive Secretary. The manual specifies the internal FOI guidelines and outlines
the roles and responsibilities of the following: (1) the personnel designated to
handle agency FOI requests; (2) the FOI champion; (3) the decision-makers; and
(4) the receiving officers. It includes provisions on the promotion of openness in
government, protection of privacy, remedies in case of denial, charging of fees, and
administrative liabilities. It also provides a comprehensive FOI process flow, list of
exceptions, and an FOI response template.
The publication of the Agency Information Inventory is mandated under the
FOI program. The inventory is a master list of all government information held
by an agency, containing the title, description, and file type of each information.
This list defines the scope and limitations of the types of information which can
be requested from an agency. Any information requested not included in the
agency inventory is considered a basis for denying the request. As of June 2017,
all 22 departments and 151 out of 222 national agencies have completed their FOI
manuals.
To promote open government, the PCOO created the eFOI portal (www.foi.gov.
ph) to enable citizens to send online requests for information. The portal facilitates
information sharing. Under the manual system, the person filing the request is the
only one who can check the data supplied by government. Through the eFOI portal,
the agency can post the requested information online. This will spare the agency
from repeating answers to similar requests. According to PCOO Assistant Secretary
Kristian Ablan, those who needed data from the government had previously relied
on tapping connections inside the office concerned. Now, any citizen can make
a request for information and be assured of a response. Nevertheless, not all the
agencies have signed up with the online facility (Salaverria 2017).
During the first six months of operation, about 50 percent of the requests
for information coursed through the eFOI Portal were denied. Interestingly, the
rejections were made not because confidential data were asked for, but because the
requests for information were lodged with the wrong government bodies. Citizen
knowledge of what outputs individual agencies have needs to be further improved.
There have also been concerns that with the implementation of the FOI policy,
government offices became less proactive in releasing information and are just
reacting to requests (Salaverria 2017).
14 the long march to transparency

Limited Scope of Exceptions

FOI laws recognize a limited scope of exceptions. The Council of Europe offers a list
of reasons for constraining access to information. This appears in Principle IV, titled
Possible Limitations to Access to Official Documents. Member states may define
in the FOI legislation the particular exceptions to the right to official records that
are proportionate to the goal, in a democratic society, of protecting the following:
(1) national security, defense and international relations; (2) public safety; (3)
prevention, investigation and prosecution of criminal activities; (4) privacy and
other legitimate private interests; (5) commercial and other economic interests, be
they private or public; (6) the equality of parties concerning court proceedings;
(7) nature; (8) inspection, control and supervision by public authorities; (9)
the economic, monetary and exchange rate policies of the state; and (10) the
confidentiality of internal deliberations within or between public authorities. The
major test is to find out whether the harm to the exception is greater than the public
interest in getting the information (Mendel 2008).
In the Philippines, Executive Order No. 2 expressed that the FOI policy will be
pursued with certain exceptions, especially when the information requested belongs
to the exceptions enshrined in the Constitution, existing laws, or jurisprudence. The
Department of Justice (DOJ) and the Office of the Solicitor General (OSG) were
tasked to prepare a list of exceptions for submission to the Office of the President.
When the draft FOI manual came out on August 22, 2016, it included an inventory
of 166 exceptions proposed by the DOJ and the OSG. The list of exceptions, which
comprised 11 pages of the draft manual, was met by howls of protest from media
and civil society. Consequently, the list of exceptions was trimmed down to nine
on November 24, 2016, after the PCOO benchmarked with other countries that
clustered the list of exceptions into major categories.
On November 24, 2016, the Memorandum on the Inventory of Exceptions
to Executive Order No. 2 was released by the Office of the Executive Secretary.
The nine classes of exceptions include the following: (1) information covered by
executive privilege; (2) privileged information relating to national security, defense,
or international relations; (3) information concerning law enforcement and
protection of public and personal safety; (4) information deemed confidential for
the protection of privacy of persons and certain individuals such as minors, victims
of crimes, or the accused; (5) information, documents, or records known by reason
Institutionalizing FOI in the Philippines 15

of official capacity and are deemed as confidential, including those submitted or


disclosed by entities to government agencies, tribunals, boards, or officers, in relation
to the performance of their functions, or to inquiries or investigation conducted by
them in the exercise of their administrative, regulatory, or quasi-judicial powers; (6)
prejudicial premature disclosure; (7) records of proceedings or information from
proceedings, which, pursuant to law or relevant rules and regulations, are treated as
confidential or privileged; (8) matters considered confidential under banking and
finance laws, and their amendatory laws; and (9) other exceptions to the right to
information under laws, jurisprudence, rules and regulations.
In FOI practice, it needs to be considered whether the harm to the exception is
greater than the public interest if the information is published. The exception on
information deemed confidential for the protection of privacy of persons presents an
interesting case. According to the National Privacy Commission, the Data Privacy
Act of 2012 does not automatically stop the release of personal data, especially if
these refer to public officials and employees or contractors and if such information
relates to the services performed, including the terms of the contract. The law
recognizes the dual policies of protecting the right to privacy of communication,
as well as assuring the free flow of information. The Data Privacy Act does not
cover information that deals with public concern. These relate to personal data on
the position or functions of a current or former government employee; personal
record on the service performed by a current or former government contractor;
and information on a financial benefit conferred by the government at its discretion
to an individual (National Privacy Commission 2017).
While there are recognized exceptions to FOI, the privilege can only be invoked
by the head of the department when a precise reason is provided. It is not a matter
that is left to the discretion of the person processing the request. The civil society
coalition, Right to Know, Right Now, argues that when the reports and bidding
documents become the basis of official action, the government should allow public
access to such official acts, transactions and decisions (R2KRN Report 2017).

Processes to Facilitate Access

The effective implementation of FOI combines the proactive disclosure of


government data with the right of citizens to request and access information from
16 the long march to transparency

public offices, aside from those in the list of exceptions. Addressing the demand
for transparency involves the design of clear guidelines for public agencies in
processing requests for information (Mendel 2008).
One of the key processes to facilitate access to information in the Philippines
is the requirement for each government agency under the executive branch to
produce its own FOI Manual. As stated in Section 8 of Executive Order No. 2,
every government office is directed to prepare its own Peoples FOI Manual which
shall include the following information: (1) the location and contact information
of the head, regional provincial and field offices, and other established places
where the public can submit requests to obtain information; (2) the person or
officer responsible for receiving requests for information; 3) the procedure for the
filing and processing of the request; (4) the standard forms for the submission of
requests and for the proper acknowledgment of such requests; (5) the process for
the disposition of requests; (6) the procedure for the administrative appeal of any
denial of request for access to information; and (7) the schedule of applicable fees.
A request to access information under Executive Order No. 2 starts with the
submission of a written request to the specific office holding the information. The
request shall contain the name and contact details of the requesting party, as well
as provide valid proof of authentication or authorization. It shall indicate the data
requested and the purpose of the request. The official receiving the request shall
assist the requesting parties, especially those with special needs. The request shall be
stamped by the government office, identifying the date and time of receipt and the
name, rank, title or position of the receiving public officer with the corresponding
signature, and a copy furnished to the requesting party. Each public office shall
establish a system to track the status of all requests for data. It is mandated to
respond to a request immediately and without exceeding 15 working days from the
receipt of the request.
Setting a time frame for replying to FOI requests is meant to ensure that the
government abides with the principle of facilitating access to information. In
this regard, government offices are encouraged to respond even before the end of
the 15-day mandatory period. For example, the Career Executive Service Board
promised to address FOI queries within 7 days, well in advance of the time limit
(Salaverria 2017).
Implementing FOI does not stop at identifying an officer that receives
requests and a key decision-maker that releases the information. For example,
Institutionalizing FOI in the Philippines 17

the Department of Education (DepEd) recognized the need to create a Public


Assistance Centre, as well as an Information Map with accompanying custodians.
DepEd will also set up an FOI committee, which will discuss the classification and
mapping of information.
It is a standard feature of FOI regimes to have an appeal and review process.
Government decisions are subject to appeal, especially when requests for
information are rejected without following regular procedures. In many countries,
FOI policies allow internal appeals to a higher authority within the agency where
the request was filed. It is also important that there is an independent oversight
body that can review decisions to deny access to information. The absence of an
independent review mechanism may prevent the disclosure of public information
that exposes bad governance (Mendel 2008).

Affordable Cost

Making the cost of accessing information affordable to citizens is another challenge


for FOI implementers. High charges can prevent people from getting information.
However, providing public data also entails costs to public agencies. Under UN
Standards, access should not be so costly as to deter potential applicants and negate
the intent of FOI. On the other hand, Principle VII of the Council of Europe
recommends that consultation of documents be free, while any fees charged for
copies not exceed the actual costs incurred (Mendel 2008).
Closely adhering to the principle of affordable cost, Section 10 of Executive
Order No. 2 provides that the government shall not charge any fees for accepting
requests for access to information. The agencies may charge a reasonable fee to
reimburse the actual costs of copying the information requested, subject to existing
rules and regulations.

Disclosure Takes Precedence

It is a major principle in FOI policy that disclosure takes precedence. The process
of legislating FOI should address how disclosure can be prioritized amid a range of
18 the long march to transparency

secrecy laws. Eventually, a commitment should be made to examine the laws that
bar the disclosure of information, with the aim of harmonizing them with the right
to information (Mendel 2008).
Section 5 of Executive Order No. 2 orders public officials to make their SALNs
available for scrutiny. In a request for the latest SALNs of cabinet officials submitted
to the Office of the President, the Malacaang Press Corps waited for a response
for more than one month. According to the Malacaang Records Office, the
delay in the release of the documents was due to the review process pursuant to
Section 10 of the Code of Conduct and Ethical Standards for Public Officials and
Employees. Interestingly, the Code states that all statements filed under the Code
of Conduct, including SALNs, shall be made available for copying after 10 working
days (Salaverria 2017).
In another case, the Board of Investments (BOI) had to be reminded that the
FOI policy does not prevent the agency from continuing its data dissemination
practices. Before the signing of Executive Order No. 2, the agency had been
providing certain data to foreigners who could be potential investors. The BOI
asked if it could still disclose data to foreigners since the FOI policy was only for
Filipino citizens. The PCOO replied that the agency should consider the FOI as a
tool to expand rather than constrict disclosure (Salaverria 2017).

Protection of Whistleblowers

As an instrument for building an open government, the FOI policy usually


provides for the protection of whistleblowers. This emanates from the notion
that if officials can be sanctioned under a secrecy law for mistakenly releasing
information pursuant to the right to information, they will tend to favor secrecy
over transparency. Consequently, FOI regimes in many places accord protection
from liability for officials who, in good faith, reveal information pursuant to right
to information legislation. This form of protection is essential to alter the culture of
secrecy and foster an ecosystem of openness in government (Mendel 2008).
In the Philippines, the executive order that mandates the implementation of FOI
in the executive branch, as well as the FOI bills that have been filed in Congress, do
not have explicit provisions on the protection of whistleblowers. The passage of a
Institutionalizing FOI in the Philippines 19

whistleblowers protection policy, either as stand-alone legislation or incorporated


as a section in FOI legislation, would be a formidable task considering the history
of legislative inertia on this issue. However, taking an active policy stance on the
protection of whistleblowers would move the country in step with the international
community in promoting transparency in public affairs.

Need for an FOI Law

Executive Order No. 2 has led to the creation of an FOI regime with its own set
of rules, norms and practices. However, it is confined to the executive branch of
government. It also lacks strong governance mechanisms and funding assistance.
This can be remedied through the passage of an FOI law. With a legislated FOI
regime, Congress can appropriate a bigger budget, as well as broaden the scope and
range of the programs implementation. The public will gain access to all relevant
government data if FOI is enacted into law.
The Right to Know, Right Now Coalition that has been in the thick of the fight
to push for an FOI bill in Congress for many years has found an ally in the PCOO.
The agency has joined the civil society coalition in public dialogues and multi-
stakeholder forums that provide updates on the implementation of FOI. The PCOO
believes that the FOI program would be more effective if it covers all branches of
government. At the same time, the Presidential Legislative Liaison Office indicated
that the Legislative-Executive Development Advisory Council (LEDAC) would
include the FOI bill in its list of priority measures for endorsement to Congress
(Salaverria 2017).
In the upper chamber, Senate Bill No. 1208 or the Peoples Freedom of Information
Act, which is a consolidation of several bills, hurdled committee deliberations in
October 2016. It will then be reported for plenary debates in the Senate. On the
other hand, the counterpart versions of the FOI bill submitted in the House of
Representatives will be scheduled for discussions at the committee level.
The Senate bill emphasizes that the FOI shall apply to all government agencies
in the executive, legislative and judicial branches, as well as constitutional bodies.
It shall cover offices at both the national government and local government levels.
The mandate to provide access to information shall include chartered institutions,
20 the long march to transparency

government-owned or -controlled corporations (GOCCs), government financial


institutions (GFIs), government instrumentalities with corporate powers,
government corporate entities, non-chartered GOCCs, and state universities and
colleges.

Conclusion

Despite the advances made in initiating an FOI program through Executive Order
No. 2 signed by President Duterte in 2016, a law is still needed to institutionalize the
right to information and appropriate funds for its implementation. The long march
to transparency inevitably leads to the doorsteps of Congress. Several measures
are needed to come up with a strong institutional design for FOI legislation in the
Philippines.
First, the FOI law should provide the general public with access to information
from all three branches of government. It should cover not only national offices,
but also LGUs. The mandatory disclosure of documents, as well as the steps for
accessing these documents, should be clearly specified in the law. All government
agencies are expected to adhere to a set of standards on the disclosure process.
The mandatory disclosure provision applied to all branches of government is
already incorporated in the current version of the FOI bill that is pending in the
Senate. Under Section 8 of Senate Bill No. 1208, the following national officials shall
disclose to the public their SALN yearly in their official website: (1) President; (2)
Vice President; (3) members of the cabinet; (4) members of Congress; (5) justices
of the Supreme Court; (6) members of Constitutional Commissions and other
constitutional offices; and (7) officers of the armed forces with general or flag rank.
This is in accordance with Article 11 (17) of the Philippine Constitution.
The Senate bill requires the agencies of all branches of government to put up on
their websites, a register of the following public interest transactions, documents
or records:

1. Annual Budget of Government Agencies;


2. Itemized Monthly Collections and Disbursement;
3. Summary of Income and Expenditures;
Institutionalizing FOI in the Philippines 21

4. Component of the IRA utilization;


5. Annual Procurement Plan and Procurement List;
6. An updated plantilla of positions and vacant positions with
qualifications and requirements in their organizations that need to be
filled up;
7. Items to bid;
8. Bid Results on Civil Works, and Goods and Services;
9. Abstract of Bids as calculated;
10. Procurement contracts entered into by a government agency;
11. Construction or concession agreements or contracts entered into by a
government agency with any domestic or foreign person or entity;
12. Private sector participation agreements or contracts in infrastructure
and development projects under Republic Act No. 6957, as amended
by Republic Act No. 7718, authorizing the financing, construction,
operation and maintenance of infrastructure projects;
13. Public funding extended to any private entity;
14. Bilateral or multilateral agreements and treaties in trade,
economic partnership, investments, cooperation and similar binding
commitments;
15. Licenses, permits or agreements granted by any government agency
to any person or entity for the extraction and/or utilization of natural
resources and a list of the grantees;
16. Guarantees given by any government agency to government-owned
or controlled corporations and to private corporations, persons or
entities;
17. Loans from domestic and foreign financial institutions;
18. Loans, grants, development assistance, technical assistance, and
programs entered into by a government agency with official
bilateral or multilateral agencies, as well as with private aid agencies
or institutions; and
19. Compromise agreements entered into by a government agency with
any person or entity.
22 the long march to transparency

The agency websites should be updated on a monthly basis.


Second, FOI legislation should foster a culture of open government where citizens
can hold their government accountable by monitoring the use of official funds and
the effective delivery of public services. With the adoption of open data policies,
governments are required to publish information in transparency portals. The risk
in over-reliance on supply-side transparency is that the governments provision
of information could become uneven and selective. In this regard, Fox (2007)
makes an interesting distinction between opaque and clear forms of transparency.
Opaque transparency happens when the information that is shared does not show
how institutions actually behave in practice. It also pertains to information that is
disclosed only nominally, or which is made known but cannot be trusted. Clear
transparency mentions information access policies and programs that tell reliable
information about institutional performance. It indicates what responsibilities
officials have and where public funds go.
Third, the principles of clear transparency, maximum disclosure, and obligation
to publish should be followed. These are embodied in Section 9 of Senate Bill No.
1208. It declares that each government agency should provide upon request, and
through their website, the following information:

1. A description of its mandate, structure, powers, functions, duties and


decision-making processes;
2. A description of the frontline services it delivers and the procedure
and length of time by which they may be availed of;
3. The names of its key officials, their powers, functions and
responsibilities, and their profiles;
4. Audited financial statements, and budget and expenditure records;
5. SALNs of all public officials with Salary Grade 27 and above or heads
of office;
6. Monthly income including allowances and sources of income of all
public officials with Salary Grade 27 and above and heads of office,
provided that names of minor children, if any, may be redacted;
7. Work programs, development plans, investment plans, projects,
performance targets and accomplishments, and budgets, revenue
Institutionalizing FOI in the Philippines 23

allotments and expenditures;


8. Important rules and regulations, orders or decisions; provided, that
they be published within fifteen (15) calendar days from promulgation;
9. Rules of procedure, descriptions of forms available or the places at
which forms may be obtained, and instructions on the scope and
contents of all papers, reports, or examinations;
10. Substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretations of
general applicability formulated and adopted by the agency,
including subsequent amendments;
11. Current and important database and statistics that it generates;
12. Bidding processes, deadlines and requirements;
13. Mechanisms or procedures by which the public may participate in
or otherwise influence the formulation of policy or the exercise of its
powers; and
14. Any disclaimer that shall announce true and correct information
relative to a matter of public concern that has been the subject
of untruthful or inaccurate publication in media.

Fourth, the principle of open government should be reflected in the law. Section
19 of Senate Bill No. 1208 compels all government agencies to have compliant
websites within two years of the effectivity of the laws enactment. Under the
proposed law, the Department of Information and Communications Technology
(DICT) is authorized to monitor all government agency websites and provide
capacity-building programs. Government agencies are expected to keep abreast with
the best practices on information disclosure, records maintenance and archiving.
Capacity development is vital in addressing the human and physical infrastructure
requirements for establishing an effective FOI program. There is also a need to
place resources and itemize FOI-related expenditures in an annual budget.
A highly open government can enhance public value especially with the use
of new information and communications technology (Wirtz and Bikmeyer 2015).
The Philippine Statistics Authority launched the Open Data portal called OpenStat
(http://openstat.psa.gov.ph) in March 2017. The objective of this online platform is
24 the long march to transparency

to furnish the different statistical data collected by the government to the general
public. The uploaded datasets are compliant with open data standards. They
are machine-readable and available to the public at no cost. This effort seeks to
promote transparency through the proactive disclosure of government data and by
encouraging the citizens to help analyze statistical data.
Fifth, with FOI legislation, transparency portals like OpenStat will be given
stronger institutional support. These online tools can be promptly utilized by
researchers studying public performance and accountability. The large amounts of
data held by the State can be employed for evidence-based analysis (Savage and
Hyde 2014). In the FOI ecosystem, information intermediaries or infomediaries
can play an important bridging role on the demand-side of open government. They
can help citizens and civil society in utilizing and analyzing disclosed data to engage
in budget, revenue and performance monitoring, and eventually demand better
services from government. Open data can provide the informational resources to
assist local decision-making and governance processes. However, data alone does
not count. To be meaningful, it must be interpreted. This is not just a technical
matter. It is about building the communities who can decide and use these tools in
a purposive manner (Cornford 2013).
Sixth, the role of knowledge brokers and information intermediaries should
be acknowledged. In FOI implementation, individuals may rely on an advocate
to make an information request for them. Even in countries with well-established
disclosure laws, making such a request involves knowledge about the bureaucratic
routine by which FOI requests are processed, including the rules that govern
judgments on the release of information. It helps to be aware of how documents
are organized and stored within the bureaucracy (Roberts 2005). FOI is shaped by
a whole range of factors, from the mechanism within the law to the action of the
key groups who drive FOI, including the requesters, media, and the government
(Hazell and Worthy 2010).
FOI legislation is not sufficient to ensure access to information. In a pilot
project in Bangladesh, the introduction of information intermediaries proved to be
crucial in improving rural citizens access to information. With the presence of the
intermediaries, the number of FOI Act users rose significantly in the intervention
areas compared to the national average, with five times more women than men
being able to participate (Fattah 2016).
Institutionalizing FOI in the Philippines 25

Seventh, a clear system of administrative and criminal penalties should be


provided. Scholarly research and public reviews indicate that there is a general
weakness in enforcing open government laws (Stewart 2010). This is magnified
in the Philippines, where the basis of the current FOI policy is an executive order
rather than a law. In this regard, FOI administrators can only impose administrative
rather than criminal sanctions. Under Section 15 of Executive Order No. 2,
failure to comply may be a ground for administrative liability and disciplinary
sanctions against any erring public officer or employee as provided under existing
laws or regulations. However, the proposed FOI bill in the Senate imposes both
administrative and criminal penalties for violations committed.
Eighth, aside from establishing appropriate administrative and criminal
liabilities, a robust FOI law would require an independent oversight agency. As
Michener (2011) argues, strong FOI legislation improves the prospects of greater
access to information when laws order the establishment of vigorous oversight
agencies (Michener 2011). There is a debate whether the independent office should
have quasi-judicial power, such as the case of Indonesia and India. This can serve for
second-level appeals. The citizen has appeal power which keeps going up the ladder
until it is elevated into court proceedings. In the case of the Philippines, Senate Bill
No. 1208 proposes that upon rejection of the appeal with the government agency,
the requesting party may file a verified petition for mandamus in the proper court.
Any action for administrative and criminal liability arising from the same act or
omission shall be filed with the Office of the Ombudsman.
Finally, the institutional design for FOI implementation can be strengthened
through a system of incentives. For example, FOI compliance indicators can
be incorporated in the Performance-Based Incentive System that is tied to the
performance bonus of government agencies. In the case of LGUs, FOI metrics can
be added to the criteria for getting the Seal of Good Local Governance that is linked
with performance grants from the national government.


26 the long march to transparency
Institutionalizing FOI in the Philippines 27

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ACKNOWLEDGMENTS

ADR Institute gratefully acknowledges all those who have extended their support,
cooperation, and commitment in the development of this project. This publication
would not have materialized without their help.

We are fortunate enough to engage with insightful persons from different


sectors, namely: the academe, public and private sectors, as well as civil society
organizations, who have shared their expertise and have actively contributed to
discussions in various fora.

We would also like to thank Prof. Victor Andres Dindo Manhit, President of
the ADR Institute, for his leadership, vision, and guidance in making this endeavor
possible.

Last but not the least, we would like to thank the following for their hard work
and dedication, and for working tirelessly towards the completion of this project:

Deputy Executive Director for Research, Ms. Angelica Mangahas, and Senior
Research Associate, Ms. Weslene Uy, who both served as the editorial staff;

Our design consultant, Ms. Carol Manhit, for the publication lay-out and cover
design;

And the rest of the ADRi team headed by Executive Director, Atty. Katrina
Clemente-Lua, Deputy Executive Director for Programs, Ms. Ma. Claudette
Guevara, Program Associate, Ms. Vanesa Lee, and External Affairs and Social
Media Associate, Ms. Krystyna Dy.
ABOUT THE AUTHOR

Dr. Francisco A. Magno is the Director of the


Jesse M. Robredo Institute of Governance at De La
Salle University, where he previously served as Chair
of the Political Science Department and Director
of the Social Development Research Center. He has
conducted teaching and research in several educational
institutions, including Florida State University,
University of Reading, Waseda University, Hiroshima
University, University of Hawaii, University of the
Philippines, and St. Scholasticas College.

He has coordinated research projects with funding


support from donor agencies, including the United Nations Development
Programme, United Nations Educational Scientific and Cultural Organization,
World Bank, European Commission, United States Agency for International
Development, Australian Agency for International Development, Canadian
International Development Agency, and Asia Foundation.

He authored a number of papers that were published in leading international journals


such as Pacific Affairs, Security Dialogue, Environmental History, Mountain
Research and Development, International Review of Public Administration, and
Peace Review. He was a member of the Editorial Board of the Philippine Political
Science Journal from 1999 to 2014.

He was elected as President of the Philippine Political Science Association from


2015 to 2017 and President of the Local Governance Training Institutes-Philippine
Network from 2016 to 2019. He is also a Member of the Board of Trustees of the
ADR Institute for Strategic and International Studies.

He finished his B.A. and M.A. in Political Science from the University of the
Philippines, and Ph.D. in Political Science from the University of Hawaii. He was
the recipient of an Outstanding Young Scientist Award from the National Academy
of Science and Technology of the Philippines in 2000. The Webometrics Ranking of
2015 listed him in the Top 100 Scientists based in Philippine institutions.