Nepomuceno Malaluan, a lawyer with academic background in economics, is a trustee of Action for Economic Reforms. He is co-convener of the Access to Information Network (ATIN-Philippines), which he represents in the Executive Committee of the Global Transparency Initiative. He may be reached at email@example.com. This article was published in the June 1, 2009 edition of the BusinessWorld, pages S1/4 to S1/5.
On May 28, while the Senate hearing on the sex videos was ongoing in an adjacent room, the Senate Committee on Public Information and Mass Media chaired by Senator Alan Cayetano was conducting its final hearing on the pending Freedom of Information Act. While it did not get any media attention, the subject matter of this hearing was no less important. The proposed legislation seeks to address the absence of the necessary substantive and procedural details for the effective implementation of the people’s right to information as well as of the state policy of full disclosure of government transactions involving public interest.
To illustrate the problem, on March 31 my organization (Action for Economic Reforms, or AER) sent a letter to Department of Trade and Industry (DTI) Undersecretary Elmer Hernandez requesting a list of companies that have received fiscal incentives, the sectors to which they belong, and the types of incentives given to them. We explained the public concern involved in our request. The requested information will help us make a proper assessment of pending bills seeking to rationalize fiscal incentives. On May 4 we received a response signed by Lucita P. Reyes, DTI/BOI (Board of Investments) Executive Director of Project Assessment Group, denying our request, since “incentives availed by firms do not form part of general information and are, therefore, considered confidential in nature.”
It is settled jurisprudence that agencies are without discretion to refuse disclosure of information, unless they can show that the information is particularly exempted by law from disclosure. The reason given by DTI for the denial sounds pretty much like its own invention rather than a legal exemption.
The DTI example is commonplace. Requests for information are routinely denied by government, and even seasoned investigative journalists get the government run-around. In its story “Multiple requests for access to info meet with flat denials”, the Philippine Center for Investigative Journalism (PCIJ) reports that its writers and editors, even though patient and diligent in their effort to secure access to documents, have met with denials and flimsy excuses from public officials.
To be sure AER has recourse to the courts to compel DTI to disclose the information. But as court cases go, it generally takes time, often years, to get a ruling. By then legislation on the fiscal incentives may have ended, rendering useless whatever access to information could have been afforded.
If passed, the proposed Freedom of Information Act will profoundly change the landscape of access to information. Government officials and employees will no longer find it easy to ride roughshod over our right to information. For one, the bill requires them to comply with requests within 10 days. For another, the bill clearly spells out the only grounds that may be used to deny access. In case of denials, requesters have various options in seeking a reversal of the denial. Should the denial constitute any of the criminal acts enumerated in the bill, the requester can make the government official or employee concerned criminally accountable.
In addition, the bill also provides the mechanics for the compulsory duty of government agencies to disclose information on government transactions pursuant to Article II, Section 28 of the Constitution. In Chavez vs. National Housing Authority (G.R. No. 164527, August 15, 2007), the Supreme Court distinguished this provision from that provided in Section 7 of the Bill of Rights. 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 without demand under Article II, Section 28 of the Constitution. The bill addresses this by mandating all government agencies to upload on their websites all the steps, negotiations and key government positions pertaining to definite propositions of the government, as well as the contents of the contract, agreement or treaty in a number of enumerated transactions involving public interest.
The lack of legislation on the right to information has had grave consequences for the country. The resulting overall lack of transparency in government has impeded the country’s development. This relates directly to the persistence of rampant corruption that has weighed down Philippine economic performance. Lack of transparency has also compromised the quality and effectiveness of government policies.
The Lower House already did its job when it passed on third reading its counterpart measure (HB 3732) as early as 12 May 2008. What is left is for the Senate to do its part. When the bill finally reaches the Senate plenary, what happens to it will be a test of every Senator’s commitment to transparency, accountability, democracy, and respect for human rights. At stake too is the country’s strategic future, given the critical role of public access to information in combating corruption, as well as in securing meaningful public participation to facilitate effective and responsive government policies. We trust that none of the 23 incumbent Senators of the 14th Congress will work to water down or to block the passage of the bill.