Addressing the Concerns on the Proposed Freedom of Information Act

Addressing the Concerns on the Proposed Freedom of Information Act

by

Rep. Lorenzo “Erin” R. Tañada III

Deputy Speaker, House of Representatives and Chairman, TWG on FOI Bills, House Committee on Public Information

 

27 January 2011

Executive Summary

 

After years of Congressional inaction, the proposed Freedom of Information advanced significantly in the 14th Congress and almost reached passage when it was unanimously approved by the bicameral conference committee. Unfortunately, while the Senate ratified the bicameral conference report, the House of Representatives failed to do the same, and the measure will have to go through the legislative mill again in the 15th Congress.

In recognition of the legislative history of the bicameral conference version, most of the bills filed in both Senate and House of Representatives in the present Congress adopt the bicam version in full. There is broad consensus that the bill is needed to institutionalize the people’s right to information. The bill enjoys wide support from most sectors of society from both government and non-government sides. Still, the following concerns have been raised on the bill in the position paper submitted by Secretary Herminio Coloma:

  • There must be adequate safeguards on the release of information that involves national security and foreign relations, the privacy of citizens, the protection of trade secrets, and the impartiality of verdicts and administration of justice.
  • It is important to determine if information currently being used by government for decision-making or project management will be made available already or if a reasonable lapse of time will be allowed before this is done. The smooth exercise of government functions may be put at risk if government agencies are subjected to requests for information at every step of the way.
  • Giving access to transcripts and minutes of official meetings may diminish candid and open discussions by public officers, and may also subject public officers or institutions to embarrassment or ridicule.
  • There is need to look into the possible impact on the transaction volume of some agencies which might be deluged with simultaneous requests.

In addition, Atty. Jose A. Fabia of the Philippine Information Agency expressed concerns that the bill’s list of transactions that government will be required to disclose without need of demand might be unduly cumbersome. There has also been feedback that there are apprehensions in Malacañang that the proposed law might be used by enemies of the state to injure state security.

Finally, in the 8 December 2010 episode of the television program “Congress in Action” hosted by Mr. Freddie Abando, Rep. Karlo Nograles echoed the concern over administrative burden as one of the reasons for the non-retroactivity provision in his bill. This proposed provision radically narrows the coverage of available information by excluding information relating to matters or transaction that took place before the passage of the act. In addition, information on matters or transaction occurring after the passage of the Act will only be available during the term of the President under which the matter or transaction took place. Related to the same provision, there were comments during the House Committee hearing suggesting that the said non-retroactivity provision is intended to avoid a violation by the proposed Act of the Constitutional prohibition against ex post facto laws.

On safeguarding sensitive information. There is recognition by all that the people’s right to information is not absolute. The bicam version lays down a list of exceptions to public access, guided by the classes of information that the Supreme Court has identified as areas for reasonable limitation of the right, including national security, foreign affairs, law enforcement, trade secrets, personal privacy, and the administration of justice.

On national security and foreign affairs, Section 7 (a) of the bicam version exempts from public scrutiny national defense information the disclosure of which will cause grave damage to the internal and external defense of the State. It also exempts foreign affairs information when revelation would unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines. Recognizing the highly sensitive nature of national security, the bill recognizes the power of the President to promulgate a new classification guideline covering information relating to national defense and foreign affairs. Not leaving national security to chance, Section 7 (f) recognizes Constitutional exceptions other than those identified in the bill. Under this general exception, the President retains the flexibility and prerogative to invoke national security as a constitutionally based exception, subject only to the Supreme Court’s power of judicial review.

The other areas are covered in the following provisions: Law enforcement and military operations – Section 7 (b); Personal Privacy – Section 7 (c); Trade secrets – Section 7 (d); and Administration of justice – Section 7 (e). Existing statutory exceptions are also recognized by the proposed law.

Thus, the general concern of Secretary Coloma over having “adequate safeguards” is already addressed.

On excluding from access information currently being used for decision-making or project management. Secretary Coloma misses a very important public goal of the people’s right to information. The right is not only meant to secure accountability of public officials for completed acts; it is also meant to secure for the public the opportunity to effectively exercise their democratic right of participation in decision making. If Congress will exclude from the coverage of law information that is currently being used for decision-making or project management, we will deny the public the ability to make informed inputs, feedback and comments in government decision-making and project management.

On excluding transcripts and minutes of official meetings from access. Minutes of meetings are relevant and material sources of information not only for government but for the public as well. They contribute to the proper understanding of agency decisions and actions. The constitutional guarantee clearly covers it in requiring access to “documents and papers pertaining to official acts, transactions or decisions”. In certain instances, there could indeed be an overriding public interest in affording candid and open discussion by public officials, but this is reserved to the highest officials of the country and the most sensitive of issues. It cannot be extended to all officials and in all subject matters. To the extent of providing protection to candid and open discussion by the highest officials on the most sensitive of issues, the proposed Freedom of Information Act already deals with this matter. Section 7 (f) of the exceptions, in recognizing Constitutional exceptions to public access, allows the invocation of executive privilege on the part of the Executive, executive sessions on the part of Congress, and judicial deliberations on the part of the Supreme Court. On the concern over potential embarrassment of public officials or the institution arising from disclosure of minutes, weighed against the right of people to information, the embarrassment of officials deserves less protection. As public officials, embarrassment forms part of accountability, and the best protection is not withholding of information, but responsibility and circumspection.

On including a deliberative process exception. On the other hand, we can surmise that the essence of the concern of Secretary Coloma over the disclosure of minutes of meetings is really in calling for the protection of the decision-making process of government agencies. In the United States, this is called the “deliberative process privilege” and recognized under Exception 5 of the US Freedom of Information Act. In the Philippines the Supreme Court has not had an occasion yet to deal with the recognition of deliberative process per se under the constitutional guarantee. It was, however, regarded by the court as “closely related” to the “presidential communications privilege” recognized in the case of Neri vs Senate. It was also held as bearing a “close resemblance” to the diplomatic negotiations privilege in the case of Akbayan vs Aquino (G.R. No. 170516, July 16, 2008). The “close relation” and “close resemblance” is based on the commonality in part of the rationale, which, the court states, is “the ‘obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news,’ the objective of the privilege being to enhance the quality of agency decisions.” It now falls on the legislature whether we will recognize the deliberative process privilege as a distinct exception, pursuant to its power to legislate limitations on the right to information, as provided in the constitutional guarantee. Should there be consensus to include this in the exceptions, it goes without saying that it should be so carefully framed that it will not be open to abuse by government.

On the administrative burden/ paralysis of government operations arising from gratuitous requests for information. More than ninety countries have already adopted freedom of information legislation, and their bureaucracies have not ground to a halt as a result of such legislation. Rather than shunning and fearing information requests, the challenge after the passage of this act will be more to encourage greater use of it by the public to foster better informed and responsible democratic processes. While we cannot discount an initial increase in requests following the passage of the act, it will come nowhere near the undue administrative burden and bureaucratic paralysis that Secretary Coloma fears. In terms of concrete data, we can look at the volume of requests as monitored by the United Kingdom since its Freedom of Information Act came into force in 2005. Still, we can revisit some provisions of the bill to further ease administrative burden. This includes reviewing the list of information required to be mandatorily/automatically disclosed without need of request provided in Section 14 of the bicam version, as well as the period of complying with a request as provided in Section 9.

On the non-retroactivity provision. I do not agree with any claim that the proposed measure violates the Constitutional proscription against ex post facto laws. The essence of an ex post facto law is the following: (a) it refers to criminal legislation; (b) the criminal provisions are made to apply to acts committed before the effectivity of the legislation; and (c) these provisions prejudice an accused. While the proposed measure introduces criminal offenses, none of these are made to apply to acts done before it becomes effective. Instead, these are all clearly applied prospectively. Thus, the nonretroactivity clause appears more directed at narrowing the scope of information covered by the right of access. Unfortunately, it is an unreasonable limitation of the right to information. For one, the guarantee does not make any distinction as to when the matter or transaction referred to was recorded. By its nature, records of information have an inherently historical character. The public interest in the information contained is not necessarily lost by the passage of time. They retain their multifold public usefulness and relevance, be it for accountability of public officials, for people’s participation, for research, for the exercise of rights such as free speech, expression, and press, or for availing government programs and services. For another, the non-retroactivity provision has the effect of negating the public right nature of the constitutional guarantee. In the line of FOI cases, the Supreme Court has consistently held that a citizen need not show a present and existing interest of a pecuniary character in the information sought to be regarded a party in a case to compel access to information. Making historical information accessible to the public only by a subpoena duces tecum implies that access requires evidentiary relevance in an ongoing case, in which the citizen must be a party having personal interest.

The absence of a Freedom of Information law for more than two decades since the ratification of the1987 Constitution has resulted in wanton violation of the right to information. Let us work together for the immediate passage of this Act, and collectively show that we are serious in our promise to lead the country towards the righteous path. Let us cast aside our fears of this law, and leave a legacy that will enable a stronger democracy, better governance, economic development, and responsive programs and services.

 

For a full text of the memorandum, please click here.

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