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Freedom of Information Act of 2011 as presented by Presidential Communications Development and Strategic Planning Office Undersecretary Manuel L. Quezon III

Freedom of Information Act of 2011 as presented by Presidential Communications Development and Strategic Planning Office Undersecretary Manuel L. Quezon III

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Presidential Communications Development and Strategic Planning Office
By Usec Manuel Quezon III
Presidential Communications Development and Strategic Planning Office
By Usec Manuel Quezon III

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Published by: Center for Media Freedom & Responsibility on Sep 01, 2011
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04/05/2012

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3/F New Executive Bldg., Malacañan Palace, J.P.

Laurel Street, San Miguel, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

FREEDOM OF INFORMATION ACT OF 2011

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

WHY A FREEDOM OF INFORMATION LAW?
The State recognizes the right of the people to information on matters of public concern, and adopts and implements a policy of full public disclosure of all its transactions involving public interest, subject to the procedures and limitations provided by this Act. This right is indispensable to the exercise of the right of the people and their organizations to effective and reasonable participation at all levels of social, political and economic decision-making.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Basis of the Ongoing Discussions
1. Bicameral Conference Committee version (Feb. 1, 2010)
- consolidated Senate Bill No. 3308 and House Bill No. 3732

2. House Bill No. 53 of the 15th Congress (Tañada bill)
- bill adopts in full the bicameral conference version of the 14th Congress as template.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Basis of Ongoing Discussions
3. Committee on Public Information TWG (Tañada TWG version)
- by virtue of constitution of TWG by the Committee on Public Information - consolidates the bills of Reps. Teodoro (HB 22), Angara (HB 86), Del Mar (1968), Apostol (HB 1713), Castelo (HB 2128), and Nograles (HB 59) with the bill of Rep. Tañada (HB 53).

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

These are proposals to be discussed with FOI advocates and Congressional sponsors.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Underlying Principles
1. Basic and Constitutional Right
• Every Filipino citizen has a right to be given access to any record under the control of a government agency. Government agencies shall make available to the public for scrutiny, copying and reproduction, all information pertaining to official acts, transactions or decisions, as well as government research data used as a basis for policy development. There shall be a legal presumption in favor of access to information. The request for information may be denied only if it clearly falls under the exceptions provided under this Act.
Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

2. Legal Presumption in Favor of Right to Information

Underlying Principles
3. Exemption: National Security
• Included in the exception any information relating to National Security, which according to NICA has different meaning from National Defense.
If the information requested pertains to personal information of a natural person and its disclosure would constitute a clearly unwarranted invasion of his or her personal privacy, unless it is part of a public record, the person is or was a government official or the person consented to the disclosure.

4. Exemption: Right to Privacy

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

THE ADMINISTRATION FOI PROPOSAL

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed

Response in Admin Bill

The frank and candid deliberations during meetings Section 6 a.2: Exceptions should be maintained. “The information requested pertains to the foreign affairs of the Republic of the Philippines, when its revelation shall/may unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation…” Section 6d: Exceptions “ The information requested consists of drafts of orders, resolutions, decisions, memoranda or audit reports by any executive, administrative, regulatory, constitutional, judicial or quasi-judicial body in the exercise of their regulatory, audit and adjudicatory function.”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed
The executive communications privilege should remain inviolable.

Response in Admin Bill
Section 6b: Exceptions “The records of minutes and advice given and opinions expressed during decision-making or policy formulation as part of the Chief Executive’s deliberative process. Once policy has been formulated and decisions made, minutes and research data may be made available for disclosure unless it is made in executive session.” Section 6e: Exceptions “The information requested is obtained by any committee of either House of Congress in executive session.”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed

Response in Admin Bill

Commercial or financial information should be Section 6g: Exceptions protected if it would prejudice government’s ability “ The information requested pertains to trade secrets to transact business. and commercial or financial information obtained from a natural or juridical person other than the requesting party, obtained in confidence or covered in privileged communication, and/or filed with a government agency, whenever the revelation thereof would seriously prejudice the interests of such natural or juridical person in trade, industrial, financial or commercial competition.”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed
Personal privacy should be protected.

Response in Admin Bill
Section 6f: Exceptions “The information requested pertains to the personal information of a natural person other than the requesting party, and 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.” Section 11: Additional Protection of Privacy “While providing for access to information in public records, this Act also affords full protection of the right to privacy of individuals…”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed
Inclusion of Implementing Rules and Regulations (IRRs).

Response in Admin Bill
Section 29: Implementing Rules and Regulations “Within ninety (90) days from the appointment of the members of the Commission, the Commission shall promulgate implementing rules and regulations to effectively implement the provisions of this Act.”

Inclusion of national security as grounds for invoking Section 6a.1: Exceptions exceptions and not just national defense. “The information directly relates to national security or defense and its revelation may cause grave damage to the national security or internal and external defense of the State…”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed
Proposal for an Information Commission.

Response in Admin Bill
Section 15: Creation of an Information Commission “There is hereby created an independent Information Commission, which shall enjoy fiscal autonomy. Its approved annual appropriations shall be automatically and regularly released.” Section 16: Composition of the Commission “The Commission shall be composed of a Chairman and two commissioners who shall be natural-born citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, with proven competence, probity and integrity, and has not been a candidate for any elective position within two (2) years prior to appointment; provided, that the Chairman shall be a member of the Philippine Bar with at least ten years experience in the practice of law and with known expertise on the right to information.”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed
Proposal for an Information Commission.

Response in Admin Bill
(continued…) “The Chairman and commissioners shall be appointed by the President of the Philippines for a term of six (6) years without reappointment. Of those first appointed, the Chairman shall hold office for three years, and the last commissioner for two years, without reappointment.”

Concern to keep penalties to administrative and not Section 12: Administrative Liability criminal, except in cases of destroying documents or “The acts enumerated in this Section shall be perjury. tantamount to gross neglect of duty and shall constitute grounds for administrative and disciplinary sanction against any public official or employee who willfully and knowingly commits the following:”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed

Response in Admin Bill

Concern to keep penalties to administrative and not (continued…) criminal, except in cases of destroying documents or “a) Refusal to promptly forward the request under perjury. Section 22 of this Act to the public officer within the same office or agency responsible for officially acting on the request when such is the direct cause of the failure to disclose the information within the periods required by this Act;
b) Failure to act on the request within the periods required by this Act;

c) Refusal to comply with the decision of his immediate supervisor, the Commission or of any court ordering the release of information;
d) Approval of policies, rules and regulations manifestly contrary to the provisions of this Act, and which policies, rules and regulations are the direct cause of the denial of a request for information.”
Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Issues to be Addressed

Response in Admin Bill

Concern to keep penalties to administrative and not (continued…) criminal, except in cases of destroying documents or Section 13: Criminal Liability perjury. “a) Any public official or employee who falsely denies or conceals the existence of information mandated for disclosure under this Act shall be liable for the crime of removal, concealment or destruction of documents as defined under Article 226 of the Revised Penal Code.”

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Basic Features of Administration FOI Bill
1. Coverage a) Mandatory Disclosure • The list of information and records for mandatory disclosure was increased and made consistent with existing laws and regulations such as the DILG Memorandum Circular No. 2010-149. Government agencies should publish, print and disseminate at no cost and in an accessible form, in conjunction with the Anti-Red Tape Act of 2007, through their website, timely, true, accurate, and updated key information.

b)

Measures to Promote Openness in Governance •

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

2. Exemptions

Alignment of list of exemptions not only with recent jurisprudence but also with model laws.
a)Executive Privilege – the expectation of a President to the confidentiality of his conversations and correspondences.
• there are two kinds 1) Presidential Communications Privilege and 2) Deliberative Process Privilege.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

3. Culpabilities
a) For Denial of Right
• Only administrative sanctions are to be imposed to public officers who would violate the provisions of the FOI law after an initial determination of malice. • The other details for the implementation of the law shall be set out in the Implementing Rules and Regulations that the Information Commission will promulgate.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

b) For Abuse of Right
• • Information that is already made available or is accessible from another agency is exempt from disclosure. Repeated similar requests from the same persons excuse the government agency from complying.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

4. An Independent Freedom of Information (FOI) Commission
a) Nature • Consistent with the growing trend around the world, an independent quasi-judicial body in the form of an Information Commission is created to ensure the implementation of the FOI law.

b) Roles/Functions
• Citizens would be able to resort to a body with expertise in deciding and addressing access to information issues. • Requesters would enjoy both internal appeals process and external appeals. • Appellants would not suffer too much delays due to clogged dockets.
Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

b) Rules/Functions (continued)
• The Commission shall Draft Implementing Rules and Regulations within ninety (90) days from the appointment of the Information Commissioners of the Commission. • Issue Executive Order on Guidelines on Public Access and Classification of Information

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Office of the President

Information Commission
Information Commissioner

Deputy Information Commissioners

Deputy Information Commissioners

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Headed by an Information Commissioner = Chairman of the Commission.


The Information Commissioner shall be assisted by two (2) Deputy Information Commissioners.


Appointed by the President of the Philippines for a term of six (6) years without reappointment.


At least one of the Commissioners must be a member of the Philippine Bar with experience in Information Technology and the others must be recognized experts in the field of ICT or Library and Information Science.

3/F New Executive Bldg., Malacañan Palace, J.P. Laurel Street, San Miguel, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Mechanics
1.Manual of Operations • 2.Process • The person who wishes to obtain information shall submit a request to the government agency concerned personally, by mail, or through electronic means. The request shall state the name, contact info, description of info required, reason for request, and preferred means. All government agencies shall prepare a Freedom of Information Manual.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Mechanics
• If request is made personally, requester should show current ID or community tax certificate. If request is made through mail or electronic means, a photostatic or electronically scanned copy would suffice. The agency should reply within fifteen (15) working days from the receipt. The period may be extended, however the requester must be notified by the government agency. The requester shall be notified once the decision to grant the request has been made. He/she shall have to pay the required access and processing fees.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

3. Remedies in Cases of Denial
• • Denied requests may be appealed to the Head of Agency within fifteen (15) days from the receipt of notice of denial. If appeal is denied, the requesting party may appeal to the Information Commission within fifteen (15) days from receipt of the denial.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Records Keeping
• • Government agencies shall create and/or maintain accurate and reasonably complete documentation or records. Government agencies shall prepare a records management program, following the standards and period promulgated in the National Archives of the Philippines Act of 2007.

The UP Law Center, in coordination with the Office of the President, which has jurisdiction over the Official Gazette, as well as other relevant agencies, shall maintain a database and publish the same in print or digital form.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Publication in the Official Gazette (online version)
• Publication of the following in the online version of the Official Gazette, with the corresponding timestamps on the document, shall be considered as official publication: a) b) c) All important legislative acts and resolutions from Congress; All executive and administrative orders and proclamations; Decisions or abstracts of decisions of the Supreme Court and the Court of Appeals or other courts of similar rank, as they deem necessary; Documents that the President has authorized to be published.

d)

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Next Steps
•Discussions with Civil Society and Congressional proponents on proposals on the administration FOI bill •Form a consensus on the FOI bill. •House views passage within Second Session.

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

Thank you.
http://www.gov.ph http://www.pcdspo.gov.ph

Rm. 301 New Executive Bldg. J.P. Laurel Street, Malacañan Palace, Manila Tel: (632)733-3605 / (632)736-0719 Fax No.(632)735-6167

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