22 November 2010

Chairman, Committee on Public Information
House of Representatives

Subject: Position on the Freedom of Information bills

Dear Rep. Evardone:

We are members of the Right to Know. Right Now! Coalition, a campaign network of more than 150 organizations from various sectors, including public-interest groups, environmental protection advocates, independent media groups, print and broadcast journalists, farmers organizations and support groups, women’s organizations, private and public sector labor unions, migrant workers, businessmen, lawyers, academics, and student organizations. We have long been advocating for the passage of a Freedom of Information Act, a promise to the Filipino people that the Constitution assured in 1987 yet.

We congratulate and thank the Chairman and members of the Committee on Public Information for starting the hearings on the bills pertaining to the people’s right to information. At the outset, we wish to state that we come to this hearing with both hope and serious apprehension. We strongly hope that we can look to the leadership of the Chairman, together with the Vice Chairpersons and all the members of the Committee, to shepherd a progressive and responsive Freedom of Information bill to its immediate passage. At the same time, we cannot but be apprehensive that the tragic fate that met the bill in the 14th Congress will be repeated, and more so now that certain bills filed contain provisions that we respectfully submit will work more to frustrate the constitutional right to information than promote it.

This position comprises 5 sections. Section 1 proposes to make the bills adopting the Bicameral conference report of the 14th Congress as starting point for the consolidation of the bills. Section 2 discusses the positive improvements to the bicam bills introduced by Rep. Sergio A. F. Apostol. Section 3 comments on the different approach of the bill filed by Reps. Casiño and Colmenares. Section 4 addresses contentious provisions introduced in the bills filed by Reps. Nograles, Castelo and Romualdo. Finally, Section 5 expounds on the adequacy and reasonability of the exceptions under the bicameral conference version.

1. Bicameral conference report of the 14th Congress as starting point

Referred to the Committee on Public Information for deliberation and action are 12 measures on the constitutional right to information. These are: HB 11 by Rep. Rodolfo G. Biazon, HB 22 by Rep. Marcelino R. Teodoro, HB 53 by Rep. Lorenzo R. Tañada III, HB 59 by Rep. Karlo Alexei B. Nograles, HB 86 by Rep. Juan Edgardo M. Angara, HB 301 by Reps. Walden F. Bello and Arlene Bag-ao, HB 133 by Reps. Teodoro A. Casiño and Neri Javier Colmenares, HB 830 by Rep. Pedro P. Romualdo, HB 1968 by Rep. Rachel Marguerite B. Del Mar, HB 2128 by Rep. Winston T. Castelo, and HB 2969 by Rep. Salvador H. Escudero III.

In the consolidation of the measures before the committee, we respectfully propose that it adopts the bills embodying the bicameral conference report of the 14th Congress as starting point. This version has been thoroughly discussed through the full legislative process in the last Congress, from first reading to third reading in both Houses, to the version reconciled and unanimously approved and signed by the bicameral conference committee.

Having actively participated and monitored the process, we can say with conviction that this version has taken into careful consideration the concerns of government agencies without compromising the integrity of the people’s right to information. It has also benefited from the constructive inputs of legislators at various stages of the legislative process.

Indeed, the bicameral conference committee report is as progressive and as reasonable as a Freedom of Information Act could get. It provides a standard and definite procedure for dealing with requests for information. It clearly defines a list of exceptions, carefully balancing the public interest in broad disclosure with the public interest in keeping certain information secret. It secures for citizens concurrent remedies in cases of denial of access to information. It provides implementing mechanics for the public disclosure of a list of important government transactions, without need of request from anyone. It provides criminal and administrative sanctions for violation of the right to information. Finally, it introduces numerous mechanisms for the active promotion of openness in government. All these directly address the substantive and operational gaps that have made the Constitutional right to information extremely difficult to enforce in practice.

Looking at the twelve bills before the committee, four of them adopt in full the 14th Congress conference committee report. These are House Bills 11 (Biazon), 53 (Tañada), 301 (Bello and Bag-ao), and 2969 (Escudero).

Three other bills adopted the version passed by the House of Representatives on third reading (HB 3732) in the last Congress. These are House Bills 22 (Teodoro), 86 (Angara), and 1968 (Del Mar). Considering the subsequent legislative refinements on the HB 3732 as embodied in the bicameral committee version, we hope that the said authors will be amenable to adopting the bicameral version in substitution to their bills.

2. Improvements to the bicameral version in the bill by Rep. Apostol

House Bill No. 1713 filed by Rep. Sergio A. F. Apostol takes off from the bicameral conference version, although it retains the exceptions provisions of the House version in the 14th Congress. The bill, however, introduces a number of improvements to the bicameral conference version.

In Section 5, the Apostol bill inserts an additional sentence to what is section 6 of the bicam version, stating positively the right of every Filipino to request and be given access to government records. This sentence provides a right-duty symmetry by stating the right, before proceeding to spell out the duty imposed on government agencies in the succeeding sentence. We support the modification of Section 6 of the bicam bills based on Section 5 of the Apostol bill.

We also support the introduction of a new Section 8 on protection of privacy. We propose, however, that it expressly states in the section that it pertains to private persons, that is, those who are not incumbent officials/employees of a government agency, nor a past official with respect to personal information relating to his or her former public function. We also submit that such new section does not require an amendment to the title of the bill, as privacy protection is recognized as a source of exception to the right to information, and therefore still covered by the title of the bicam bills.

Finally, we likewise support the addition of a new paragraph (d) to Section 8 of the bicam versions, appearing as Section 9 of the Apostol bill, for the prompt and mandatory disclosure of “information about a risk of significant harm to the environment or to the health or safety of the public”.

3. Different approach of the bill by Reps. Casiño and Colmenares

House Bill 133 filed by Reps. Casiño and Colmenares adopts elements of the bicameral conference version, but introduces two major revisions. First, it does away with all the exceptions for public access to information. Access may be denied only based on substantial evidence that the purpose of the requested access to information is to abet or promote or commit criminal acts, or to engage in sheer and idle curiosity. Second, it shifts the initiation of a court case, from a citizen making an appeal from a denial of a request for information, to government applying for a court order prohibiting the grant of access to information.

We are open to further discussion of these features of House Bill 133, as the revisions aim to secure fullest access to information by citizens, as well as an alternative operationalization of the burden of proof of denials resting upon government. We caution though that such deliberation should not result in the undue delay of passage of the bill. We likewise request that there be consideration of the long process of consensus building among the different stakeholders in reaching the bicam version.

Having said that, we provide preliminary comments on aspects of the changes proposed by HB 133. On the removal of all other exceptions, we note that the exceptions in the bicam bills conform to existing jurisprudence on the limits of the right to information. We expound on this in section 5 below.

On the chosen exceptions of HB 133, we submit that it as well recognized by the bicam versions that examination of records for an unlawful purpose is not allowed. Thus, in Section 9 of the bicam bills, it provides that the reason for the request shall not be used as a ground to deny the request, “unless such reason is contrary to law”. Where a government agency is in possession of substantial evidence that the examination of the information is for an unlawful purpose, we believe that it has the right, even though not expressly provided in the bicam bills, to go to court to apply for an order to allow it to prohibit access where no other exception applies.

As to “sheer or idle curiosity” as a basis of refusal of access, we disagree that it should be allowed as an exception as it is open to arbitrary interpretation. While the phrase has been mentioned in jurisprudence (Legaspi v CSC, GR 72119, 29 May 1987, quoting Subido v Ozaeta, No L-1631, 27 Feb 1948), we submit that it was not meant to identify an exception, but rather to emphasize the non-discretionary nature of the right. On the contrary, no decision of the court on access to information has dealt with the motivation of the requesting party as a consideration in the determination of the applicability of the right to information.

On the whole, while we may differ in opinion with Reps. Casiño and Colmenares on the above aspects of the bill, we look to our solidarity with them in the push for the passage of the bicam report in the 14th Congress as basis for our continued solidarity in the advocacy for the passage of a progressive Freedom of Information Act in the 15th Congress.

4. Contentious provisions in the bills by Reps. Nograles, Castelo and Romualdo

We come to the three remaining bills that were filed by Reps. Karlo Alexei B. Nograles (House Bill 59), Pedro P. Romualdo (House Bill 830), and Winston T. Castelo (House Bill 2128). These bills introduce provisions that we respectfully oppose based on reasons we discuss herein.

4.1. The non-retroactivity provision of the Nograles bill

House Bill 59 filed by Rep. Nograles reproduces the bicam version in full, but introduces a new section, which reads:

“Sec. 18. Non-Retroactive Effect. – All information to be released by government agencies shall only cover matters of public concern and/or transactions involving public interest which have been effected after the passage of this Act and during the incumbency of the President of the Philippines at the time the request for information has been made, unless otherwise provided by law or subject to the issuance of subpoena duces tecum by the Supreme Court or all lower courts, or by Congress, as the case may be.”

Under this provision, all public information covering matters or transaction that took place before the passage of the act shall be put under seal. Not only that, all public information covering matters or transaction taking place after the passage of the Act shall be available only during the incumbency of the President under which the matter or transaction took place. All such information under seal may be released only by a special law, or through a subpoena duces tecum issues by a court or by Congress.

While the constitution expressly empowered Congress to provide limitations on the right to information, such limitations must not be unreasonable. The following exchange from the Records of the 1986 Constitutional Commission is relevant:

“MR. NOLLEDO: x x x My next question is with respect to Section 6, lines 13 to 18, with particular emphasis on the word “limitations.” May I know if these limitations pertain only to the manner of the exercise of the right to information on matters of public concern or can it affect to some degree the substantial exercise of the right?

FR. BERNAS: My understanding is that it can include the substantial content of the information; but these limitations, whether or not we are talking about procedure or substance, must necessarily be reasonable limitations.”

This is echoed by the Supreme Court in the leading case of Legaspi v Civil Service Commission, the first FOI case decided after the ratification of the 1987 Constitution. The court stated:

“What may be provided for by the legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest.”

We submit to the Committee that the non-retroactivity provision is an unreasonable limitation of the right. In fact, it will work to drastically roll back the people’s right to information rather than promote or protect it.

The Constitutional guarantee of citizen’s access to information does not make any distinction as to when the matter or transaction referred to was recorded. By its very nature, records of information have an inherently historical character. They represent an account of acts, transactions, decisions, and data “designed to remain as a memorial or permanent evidence of the matters to which it relates” (see Black’s Law Dictionary entry on “record”). The public interest in the information contained in such memorial or evidence is not necessarily lost by the passage of time. Indeed, 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. The non-retroactivity provision is thus unreasonable in that it defeats the very public interest sought to be achieved by allowing access to historical information.

The words of Justice Makasiar in the 5 June 1973 case Philippine Blooming Mills Employees Organization v Philippine Blooming Mills Co., Inc., resonates:

“x x x (H)uman rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful, and of oligarchs — political, economic or otherwise.”

The non-retroactivity provision also has the effect of negating the public right nature of the constitutional guarantee on access to information. In the line of cases on FOI, 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 interest 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.

4.2. Overbroad, Vague or Discretionary Exceptions in the Romualdo and Castelo bills

House Bill 830 filed by Rep. Pedro P. Romualdo contains certain exceptions that are already covered by the exceptions in the bicam bills. Unfortunately, the Romualdo bill also introduces a number of exceptions that are either overbroad, vague, or highly discretionary as to nullify the constitutional right to information.

One example is Section 6 (e), which exempts from access “information that affects our national sovereignty”. National sovereignty refers to the power of an independent state to govern itself and to conduct foreign relations. Indeed it covers virtually all aspects of governance, and all acts and transactions of government can be argued to affect national sovereignty.

Another example is found in Section 6 (g), exempting information “which may affect the interest of the Republic of the Philippines abroad”, and similarly, Section 6 (i), exempting information “that affects the economic interest of the Republic of the Philippines within and outside the country.” Again this gives the government a roving discretion in refusing access to information, as all policies can be argued to affect the economic interest of the country.

As regards House Bill 2128 filed by Rep. Winston T. Castelo, it is in fact based in large part from the bicam version, and the bill passed by the House on third reading as to the section on exceptions. However, we notice that it adds a highly discretionary exception. Specifically, Section 7 (l) exempts information which, “in the reasonable opinion of a qualified person, would prejudice the effective conduct of public affairs.”

That the Romualdo bill’s intent is to subject public access to maximum government discretion is also evident in its provisions on procedure. Section 12 clearly makes access dependent on the subjective evaluation of the request by a government agency. It also has full discretion as to when a document will be made available.

The Supreme Court has time and again emphasized the repugnance of arbitrariness to fundamental rights. The Supreme Court in the same case of Legaspi was emphatic:

“Without a government’s acceptance of the limitations imposed upon it by the Constitution in order to uphold individual liberties, without an acknowledgement on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.”

Specific to the right to information, the Supreme Court adds:

“Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. x x x”

4.3. Assignment of burden of proof in the Romulado bill

The Romualdo bill assigns the primary burden of proof in accessing information to the requesting public. The last paragraph of Section 12 states:

“The burden of proof that the information being requested is not covered under Sections 6 or 7 hereof rest solely on the requesting party. The only remedy available to him or her is to go to court and submit substantive proof or evidence that the information does not fall under Sections 6 or 7 of this Act.”

This again violates the constitutional guarantee as interpreted by the Supreme Court, which held:

“In case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee. To hold otherwise will serve to dilute the constitutional right. As aptly observed, ‘…the government is in an advantageous position to marshal and interpret arguments against release…’”

4.4. Coverage of the private sector in the Romualdo bill

The Romualdo bill expands the coverage of the duty to disclose information to include “private institutions including the media.” (HB 830, Section 3)

We agree that the private sector is holding a growing amount of information that is imbued with public interest. This is especially true with the privatization of critical public services, and even infrastructure.

We submit, however, that the private sector’s duty to disclose information to the public is better tackled in a separate bill or measure. By the structure of the bill of rights, it mainly addresses the limiting of governmental powers. The other constitutional provision on access to information, the policy of full public disclosure of transactions involving public interest (Article II, Section 28 of the 1987 Constitution), likewise pertains to government.

On vital information held by the private sector, Congress has the power to address this by a separate regulatory legislation. Alternatively, there are also regulatory bodies (such as the SEC, ERC, NWRB, LTFRB, etc.) that have the quasi-legislative power to promulgate or enforce information submission or disclosure rules. The passage of the Freedom of Information Act complements such regulatory exercise by securing the people’s right to information in relation to the regulatory bodies.

5. The adequacy and reasonability of the exceptions under the bicameral conference versions

We recognize that the people’s right to information, like all the other constitutional guarantees, is not absolute. Thus, limitations may be provided by law.

Unfortunately, after more than 23 years since the ratification of the 1987 Constitution, Congress has yet to fulfill its obligation. To highlight the lack of legislation, the Supreme Court in the case of Chavez vs. PCGG (G.R. No. 130716, December 9, 1998) noted that “there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged.” In order to fulfill the executory character of the right to information, the Supreme Court has addressed the gap by enumerating a number of exceptions through jurisprudence, but the expected lack of exactness in the absence of legislation opens the Supreme Court enumeration to wide interpretation by government agencies. The result of the lack of legislation is the routine violation by government agencies of the people’s right to information.

The bicam bills take the challenge of setting forth these exceptions. As noted above, these exceptions “must necessarily be reasonable limitations”, and must “of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest.” We also note the guidepost laid down by the Supreme Court in the case of Philippine Blooming Mills:

“Because these freedoms are ‘delicate and vulnerable, as well as supremely precious in our society’ and the ‘threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,’ they ‘need breathing space to survive,’ permitting government regulation only ‘with narrow specificity.’”

We submit that the bicam bills are able to discharge this delicate task through the following:

First, they were guided by the classes of information that the Supreme Court has identified as areas for reasonable the limitation of the right. These are national security, foreign affairs, law enforcement, trade secrets, personal privacy, and the administration of justice.

Second, the bicam bills circumscribed the said areas for reasonable exceptions with “narrow specificity” as would limit the space for overbroad and arbitrary interpretation. This was done by specifying the harm or damage to public interest that will result if the relevant information is made publicly available.

Third, the exceptions were subjected to the discussion and consensus building among the various stakeholders from both the government and non-government sides, and subjected to the close scrutiny of legislators in the various stages of the legislative process.

We discuss the exceptions in the bicam bills in greater detail.

National security and foreign affairs. Section 7 (a) combines the exceptions relating to national security and foreign affairs. It allows the exemption from public scrutiny national defense information the disclosure of which will cause grave damage to the internal and external defense of the State. For foreign affairs information, they may be kept secret when their 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.

Under current practice, the treatment of security information is governed by Memorandum Circular No. 78 dated 14 August 1964. It provides for the authority to classify certain information into four categories: top secret, secret, confidential, and restricted. Classified matters are not available to the general public.

Section 20 of the bicam bills expressly repeal MC 78. Indeed, MC 78 clashes with the right to information as it authorizes practically all public officers to classify documents. While authority to classify information as top secret or secret rests with the head of the department, this may be delegated. For confidential and restricted matter, any officer is authorized to assign such classifications. The classes of information that may be classified under MC 78 is so broad as to be practically unlimited. For instance, top secret matter may include major governmental projects; confidential matter need not involve matters of national security, and may include such matters as would cause administrative embarrassment; and restricted matter can include matters as vaguely defined as “requiring special protection”. In short, MC 78 gives government officers unlimited discretion in withholding information from the public by the simple expedient of categorizing it as classified matter. This renders worthless the constitutional guarantee of access to information of public concern, as well as the jurisprudence that agencies are without discretion in granting access.

Still, in recognition of the highly sensitive nature of national defense and foreign affairs, the bill seeks to replace MC 78 with a new classification system. The same Section 7 (a) acknowledges the power of the President to issue an executive order providing the guidelines for classification, but with adequate safeguards, including the narrowing of the basis for classification, and the requirement to specify the reasonable period by which the information shall be automatically declassified or subject to mandatory declassification review.

Law enforcement and military operations. Section 7 (b) allows the exception of defense and law enforcement information when its revelation would render a legitimate military or law enforcement operation ineffective, unduly compromise the prevention, detection or suppression of a criminal activity, or endanger the life or physical safety of confidential or protected sources or witnesses, law enforcement and military personnel or their immediate families. We note that this exception would have covered various information relating to the recent hostage taking incident at the time it was taking place, and even after the law enforcement operation when warranted under the provision.

Personal Privacy. Section 7 (c) exempts personal information of a natural person if its disclosure would constitute a clearly unwarranted invasion of his or her personal privacy, unless it forms part of a public record, or the person is or was an official of a government agency and the information relates to his or her public function, or the person has consented to the disclosure of the information.

Trade secrets. Section 7 (d) protects trade, industrial, financial or commercial secrets obtained in confidence or filed with a government agency. In addition to this provision, trade secrets are also protected in other statutes, such as Section 278 of RA 8424, Sec 11(f) of RA 3720, and Sec. 40 (f) of RA 7394.

Administration of justice. Section 7 (e) exempts information privileged from production in legal proceedings by law or by the Rules of Court. Also exempted are drafts of decisions by any executive, administrative, judicial or quasi-judicial body in the exercise of their adjudicatory functions whenever the revelation would reasonably tend to impair the impartiality of verdicts, or otherwise obstruct the administration of justice.

To be sure, there will remain tensions despite the painstaking effort of the bicam bills to strike a reasonable and definite balance among the competing interests. The matter of exceptions will always be a contentious issue in any access to information legislation. On the one hand, there is a tendency on the part of citizens to demand as limited exceptions are as possible, and on the part of government, to carve out exceptions as broad as possible.

To give both sides a level of comfort, the bicam bills introduce a number of flexibility and safeguard clauses.

On the part of a Chief Executive wary that the bill might compromise national security and the availability of other presidential prerogatives, Section 7 (f) recognizes possible Constitutional exceptions other than those identified in the bill. Examples include executive privilege, subject however to the Supreme Court’s power of judicial review.

For those fearing that the list of exceptions in the bicam bills is too restrictive, we point out that statutory exemptions in existing bills are also recognized. At present, there are many statutory exemptions some of which need to be re-examined rather than added to. The following are just some of the laws that contain confidentiality provisions: New Central Bank Act, Omnibus Investments Code, Human Security Act, Philippine Technology Transfer Act, Anti Child Pornography Act, National Archives of the Philippines Act, Juvenile Justice and Welfare Act, Anti Violence Against Women and their Children Act, and the Philippine Mining Act.

On the part of citizens believing that the exceptions remain too broad and open to abuse, the bill assigns to government the burden of proving an exception. Section 8 also gives citizens the opportunity and right to override a recognized exception by proving that there is a greater public interest in its disclosure. Lastly, Section 17 provides criminal and administrative liability to deter or punish the abuse of exceptions and other violations of the right to information.

In truth, even if the bicam version is passed, the boundaries of the scope and limits of the right to information will still shift in practice. Where they will lie at a particular point in time will depend on the national situation, the security perspective of the Chief Executive, the predisposition of the Supreme Court, and the vigilance of the public.

Concluding Remarks

In pushing for the passage of the Freedom of Information Act, it is not our aim to use information “to exact ransom, extort money or property, coerce government in changing policies to conform to our whims, caprices and syndicated acts, or to harass people in government”, as Rep. Romualdo fears. Instead, our aim is to make informed participation in governmental decision making, enhance government accountability, and assist in making government programs and services accessible to the public. With only the public good in mind, we are committed to the prudent and responsible exercise and use of our right to information.

We quote Justice Cortes in the case of Valmonte v Belmonte (GR 74930, February 13, 1989):

“An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution. The cornerstone of this republican system of government is delegation of power by the people to the State. In this system, governmental agencies and institutions operate within the limits of the authority conferred by the people. Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated. The postulate of public office as a public trust, institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental power, would certainly be mere empty words if access to such information of public concern is denied, except under limitations prescribed by implementing legislation adopted pursuant to the Constitution.”

We respectfully appeal to Chairman Evardone and to all the members of this committee, indeed to all leaders and members of both Houses of Congress, and to President Aquino, to finally pass this long-overdue measure. “Daang Matuwid” will be a travesty if the immediate passage of the Freedom of Information Act will not get your decisive support.

Respectfully yours,

The Right to Know. Right Now! Coalition