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FOI Policy Briefing Paper

FOI Policy Briefing Paper

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Published by: Center for Media Freedom & Responsibility on Jan 04, 2012
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The Center for Media Freedom and Responsibility (CMFR) initiated a training program sev-
eral years ago to help the media track policy news. The coverage and reporting of such news
should ideally start with the initial phase of policy-making, followed by the preliminary dis-
cussions that lead to more formal expressions of policy, such as executive orders, legislation,
and in some cases, case law, or the courts’ interpretation of the law.

Reporting policy is difficult, unless policy has been cast in stone as legislation. But even in
such cases, the press has problems putting together the needed stories because so many
other issues, events, and concerns demand media coverage and events that fall within the
conventional framework of news are easier to report. The “who, what, when, and where”
journalistic points of inquiry are focused on events; policy news requires an emphasis on
process.

The free press plays a critical role in the formation of sound public policy. The press can be
a forum in which policy ideas and initiatives are tested and formed in the arena of public
opinion. This exchange should engage a broad representation of citizens, a critical mass that
will make the discussion representative of competing interests and involve the same in the
establishment of public consensus.

CMFR organized the media and policy forums to include not just the press but also civil soci-
ety organizations, advocacy groups, students, as well as those engaged in the formal formula-
tion of policy.

In partnership with the Asian Institute of Management Policy Center, CMFR held the first of
a series of three media and policy forums last July 27. A grant from the National Endowment
for Democracy made the event possible.

The event adopted two tracks to discuss the Freedom of Information (FOI) issue: the first
by following the legislation process and the second, by reviewing the experience of different
sectors in the course of the campaign for an FOI.

Political context and background

Nineteen years since the first FOI bill in Congress was filed, the Philippines has yet to pass an
FOI Act (FOIA).

The bill moved farthest in the 14th Congress. It was approved by the bicameral conference
committee and ratified by the Senate, but died in the House of Representatives.

A Policy Briefng Paper: Freedom of Information

5

The country is shamed by this failure in the context of the global surge for FOI laws. As
of February 2010, at least 80 countries—19 in Asia—have nationwide laws which recog-
nize the right to information and access to public records. The democratized countries
of Southeast Asia, among which the Philippines has stood out as among the most liberal
minded of societies, have passed FOI laws. Thailand has had an FOI act since 1997; In-
donesia adopted one in 2010; and even Malaysia’s Selangor State has passed its own
version.

The failure to pass a Philippine FOI law reflects long embedded contradictions in
Philippine society, for example the mass enchantment with elections together with the
resistance to the political concepts and the legal and social infrastructure that can assure
that democracy works.

Indeed the Philippines has many laws that are at cross-purposes with democratic values.

Democratic space and practice have fostered the advancement of communication tech-
nology. But laws formulated during the Spanish and US colonial periods and the Martial
Law era have remained in the books and can still be invoked when convenient. The non-
libertarian bent still has laws on its side. The 1987 Constitution grants freedom of ex-
pression, but there are laws, and even agencies, that allow censorship and prior restraint.

The same Constitution guarantees the right to information. But so far, the 15th Congress
has had to start from scratch with lawmakers once again filing bills so a law can pro-
vide for access to information for all citizens. The expectation that President Benigno S.
Aquino III will make this a priority of his presidential agenda remains frustrated by the
seeming indifference of his administration to the passage of such a law.

The desire for more transparency and accountability, the recognition of the power of
information and the valued participation of citizens in public affairs are well justified
by the experience of dictatorship when even the press became an instrument of official
deception. During that period the controlled regime successfully hid the evidence of na-
tional plunder.

The objections to FOIA are weakened by this context and by legitimate concerns about
the needs for operational security of military, police, and defense agencies. These mat-
ters should be discussed, but narrowly construed. Again, experience has shown that
these objections arise from the law enforcement communities that in the past have dem-
onstrated a capacity to abuse the grant of confidentiality and secrecy given them.

Resistance to an FOIA must be examined with eyes wide open. Since 1986, the resort to
secrecy has taken over the official mind set. Government officials find it difficult to imag-
ine doing their work without some kind of protection from public inquiry.

A Policy Briefng Paper: Freedom of Information

6

The problem is fundamental. Members of the political class, whether elected or appointed,
become more concerned with conducting the business of government as they please without
having to answer to their constituents.

Broaden the circle of access

Journalists have never thought it so important to have such a law, because the practice
and custom of reporters in this country have made them knowledgeable about getting
information. But in the 25 years since the fall of dictatorship and its system of controls, even
those practices in tracking wrongdoing have become more difficult in getting information on
government.

The denial of the right to information and access to government-held records on matters of
public concern in the Philippines has become widespread. Requests for official documents,
records, and data are met with inaction, excuses, referrals, or outright rejection.

Indeed, CMFR sees the need for legislation as an instrument for widening access to involve
and to include the right of all citizens to information that it needs, information being among
the most significant grants of democratic societies to their members, requiring, as the sys-
tem does, the active engagement and participation of all citizens in decision-making and in
governance.

Current FOI policy

The 1987 Philippine Constitution guarantees the right to information:

“The right of the people to information on matters of public concern shall be recognized. Ac-

cess 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.
” (Bill of Rights, Article
III, Section 7)

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy
of full public disclosure of all its transactions involving public interest.
” (Declaration of Prin-
ciples and State Policies, Article II, Section 28)

As policy however, the Philippines can look to Supreme Court decisions, among which, Val-
entin L. Legaspi vs. Civil Service Commission (G.R. No. 72119. May 29, 1987), and Ricardo
Valmonte, et al vs. Feliciano Belmonte, Jr. (G.R. No. 74930. February 13, 1989) affirming the
right of the petitioners to obtain information from public bodies.

In the second case, which goes back to the Marcos era, media members seeking confirma-
tion of Government Service Insurance System (GSIS) clean loans made to certain mem-

A Policy Briefng Paper: Freedom of Information

7

bers of the Batasang Pambansa (BP), the Court, in a decision penned by Justice Irene
Cortes said, “The right to information…is meant to enhance the widening role of the
citizenry in governmental decision-making as well as checking abuse in government.”

However, the public can also go to Executive Order No. 89 (Directing the implementation
of a policy of accessibility and transparency in government) issued by then President Fidel
Ramos requiring national government agencies to formulate procedures for the public and
relevant agencies to follow when there are requests for government data and information.

Another law, Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Offi-
cials and Employees) compels disclosure of information on government matters.

Although guaranteed in the Constitution and other legal instruments, an FOIA is still neces-
sary to define the procedures and punish those who violate these rights. Most experts under-
stand FOI as a critical component of the information system in a democracy—facilitating the
right to know.

The advocacy for FOIA is based on the right to information of ordinary citizens, who must be
empowered to know more about government and its conduct if they are to be active partici-
pants in public affairs.

Advocates hope that an FOI law, which enhances the right to know, will be ratified soon.
Citizens and civil society organizations are closely monitoring the response of the Aquino ad-
ministration and the 15th Congress to the demand for an FOI, particularly since the President
won the last elections committing to uphold transparency and good governance.

MELINDA QUINTOS DE JESUS

Executive Director
Center for Media Freedom and Responsibility

A Policy Briefng Paper: Freedom of Information

8

The initiative of the 15th Congress to pass the
Freedom of Information (FOI) legislation be-
gan early.

There are 12 FOI bills currently in the Senate
and another 12 in the House of Representa-
tives. The Senate Committee on Public Infor-
mation and Mass Media has held two hear-
ings on the bills.

House Deputy Speaker Lorenzo “Erin” Tañada
III (4th

District, Quezon) authored House Bill
(HB) No. 53, which adopted in full the bicam-
eral conference committee version of the 14th
Congress. (Please see annex on page 41.)

Other representatives and senators filed the
same version.

The House held a committee hearing and a
technical working group (TWG) meeting for
the consolidation of the measure. Tañada
submitted a proposed version which consoli-
dates his bill with those of Reps. Marcelino
R. Teodoro (HB 22), Juan Edgardo M. Angara
(HB 86), Rachel Marguerite B. Del Mar (HB
1968), Sergio F. Apostol (HB 1713), Winston
T. Castelo (HB 2128), and Karlo Alexei B.
Nograles (HB 59).

Despite these actions by Congress, the bill
remains stalled in the committee on public
information of both Houses. The delay in the
legislative process can partly be attributed to
the refusal of the executive branch to include
the FOI bill in the list of priority legislative
measures.

FOIA: The Palace version

The executive has created an inter-agen-
cy team to study the FOI issue. President
Benigno S. Aquino III said in his speech at
the 25th

anniversary of The Philippine Star, a

daily newspaper:

“My administration is in the process of draft-
ing, and suggesting, a Freedom of Informa-
tion bill that we believe will balance legiti-
mate needs for secrecy with the public’s
right to know. This right to know carries
with it responsibilities—to use the infor-
mation available in context; to present facts
fairly; and to be conscious of some elements
who may want to use the information not
to inform the public, but to, rather, inflame
them. We are carefully studying the details
of such legislation in order to ensure that it
serves the public interest without compro-
mising it.” (Delivered at the Makati Shangri-
La Hotel on July 28, 2011; http://www.gov.
ph/2011/07/28/president-aquinos-speech-
at-the-25th-anniversary-of-the-philippine-
star-july-28-2011/)

According to Undersecretary Manuel L. Que-
zon III of the Presidential Communications
Development and Strategic Planning Office,
the administration has issues with the Con-
gress FOI versions. Malacañang has proposed
its own version that addresses those issues.

• The frank and candid deliberations dur-
ing meetings should be maintained. The
Palace version proposes the adoption of:

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