04 September 2013 SEN.

GRACE POE Chairperson Committee on Public Information and Mass Senate of the Philippines Subject: Position on the Senate FOI Bills Dear Senator Poe, This position on the Senate Freedom of Information (FOI) Bills for the 16th Congress is submitted on behalf of the Right to Know. Right Now! Coalition, a campaign network of over 100 organizations from various sectors advocating for the passage of a Freedom of Information Act to strengthen the people's right to information guaranteed under the Constitution. We congratulate and thank the Chairperson and members of the Committee on Public Information for the prompt commencement of deliberations on the FOI Bills. We are heartened by the Chairperson's strong advocacy for the measure as shown by her own Senate Resolution 102, and by this hearing. We are encouraged as well by news quoting Senate President Franklin Drilon that the Senate has in caucus agreed to give priority to the early passage of the FOI Bill. Even as the Senate has shown unanimous support for the measure in the 14th and 15th Congresses, an early passage and intensified support in the Senate of the 16th Congress will contribute greatly to helping move the measure in the House of Representatives where the measure has admittedly met strong resistance. As a coalition we are very happy to participate in this hearing not just as citizen advocates, but as formal Petitioners under the Indirect Initiative provision of RA 6735 (or The Initiative and Referendum Act). Under this provision, 23 member organizations of the coalition have filed with the Senate (and similarly in the House) the People's FOI Bill by way of a Petition for Indirect Initiative. This is very important to us not just in respect to our advocacy for the passage of the FOI bill, but also in respect to our commitment for active people's participation in the legislative process. The records of the Senate on the deliberations on the measure in the last two Congresses are already replete with arguments on why the passage of the FOI Bill is needed and how it will serve to elevate the public good. In our Petition we quote extensively from jurisprudence on the
For communications please contact: Atty. Nepomuceno Malaluan Institute for Freedom of Information, Unit 1403 West Trade Center, 132 West Avenue, Quezon City Telefax: (+63 2) 426 5626 Email: nepo_m@yahoo.com

public policy behind FOI. The Bills under consideration by this Committee also discuss these arguments in the Explanatory Note of the Bills under consideration by this Committee. Beyond the arguments already on record, the controversy on public funds that has gripped the country for weeks now has put in stark perspective the compelling need and urgency to pass the FOI law. PDAF as we know it is not a purely legislative matter. Existing safeguards apply, including the oversight by DBM in the release of funds, as well as the oversight by the implementing agency under which the project or disbursement is coursed. The procurement law does not exempt PDAF, and it is also subject to regular audit by COA. Without prejudging the matter, the large-scale fraud that appears to have been committed on public funds raises the unavoidable related fact that such existing government safeguards must have broken down at various points. This makes a citizen check or accountability mechanism, enabled by a working FOI law, necessary to complement existing government safeguard mechanisms. It is said that the government is already practicing transparency even without an FOI law. Indeed we acknowledge the initiatives for proactive disclosure, for example by the DBM, on the budget. We emphasize, however, that proactive transparency, when limited to general or aggregate data, will provide indispensable leads but is not enough. In the investigation of the reported PDAF anomalies, for example, there are source documents such as MOAs, work and financial plans, endorsement letters, disbursements and completion reports, project beneficiaries, that are indispensable if we are to truly verify the regularity of project implementation. These are not, and unreasonable to expect to be, all proactively disclosed. Request-based access thus becomes necessary to complement proactively disclosure, and it is in request-based access where citizens are normally given the run-around by government agencies. In sum, there is specific detail and depth in public interest matters that will not be covered by existing or planned proactive transparency measures. Additionally, public interest implies not just financial and budget data. Whatever openness government already practices now will have to be complemented by request-based access if we are to empower citizens to dig deeper into scams, to benefit from government programs better, and to effectively participate in policy discussions. The proposed FOI law addresses these. The FOI bills seek to (a) clarify the scope of accessible information by defining clearly the list of allowable exceptions, thereby removing the wide discretion in withholding or granting access; (b) provide a uniform and speedy procedure for people’s access to information, thereby closing the loophole that allows administrative avoidance of access; (c) enumerate specific acts violative of the right to information that constitute administrative or criminal offenses; and (4) introduce mechanisms to facilitate better citizen access to information, such as providing standards for record keeping. The legislative work of the 16th Congress on the FOI Bills will not start from scratch. The FOI Bills pending with the committee embody the long legislative history of this measure, and reflects how concerns raised mainly by government agencies on previous drafts have already been addressed in a manner that balances these concerns with the protection of the people's right to information.

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Four of the bills filed adopt mainly the Bicameral Conference Committee Report that almost passed in the 14th Congress. These are Senate Bills 18 (by Senator Francis G. Escudero), 36 (by Senator Antonio F. Trillanes IV), 90 (by Senator Alan Peter S. Cayetano), and 514 (by Senator Loren Legarda). These are almost identical bills, the difference only being the lengthening of some periods in Senate Bill 36, and minor differences in a few provisions of Senate Bill 514. The bill filed by Senator Joseph Victor G. Ejercito, Senate Bill 217, is similar to the Malacañang version transmitted by Secretary Florencio Abad to the House Committee on Public Information of the 15th Congress on 02 February 2012. The bill filed by Senator Sonny Angara, Senate Bill 1219, adopts the Committee Report approved by the House Committee on Public Information of the 15th Congress, while the bill filed by Senator Gregorio B. Honasan II, Senate Bill 64, adopts the version approved by the Senate of the 15th Congress up to the Third Reading. The bill filed by Senator Teofisto Guingona III, Senate Bill 74, is mainly the bill passed on Third Reading by the Senate of the 15th Congress, but modified by a few further noncontroversial inputs that are also reflected in the bill that members of the Right to Know. Right Now! Coalition filed through Indirect Initiative. The only bill that may be regarded as truly distinct is the bill filed by Senator Sergio R. Osmeña III, Senate Bill 44. Those who have participated in the legislative process of the 14th Congress would attest to the detailed, line-by-line review conducted by then Committee Chairman Senator Alan Peter Cayetano with government and non-government stakeholders, as well as to a similar review conducted in the House Technical Working Group headed by then Rep. Lorenzo Tañada III. We note that while no interpellation was done at the House plenary in the 14th Congress, there was detailed interpellation on Constitutional issues conducted by Senator Miriam Defensor Santiago and by Senator Joker Arroyo, resulting in further refinements in Senate plenary. While he did not interpellate, Senator Francis G. Escudero recommended a number of amendments, and adopted by the committee, to improve the provisions on record keeping. What happened since the Bicameral Conference Committee version were principally the key amendments proposed by Malacañang to address concerns by the Executive bureaucracy, as well as concerns raised by President Aquino at the start of his term. There were also additional inputs from Senator Honasan. The resulting committee report by Senator Honasan went through another round of interpellation on Constitutional grounds conducted by Senator Defensor Santiago, resulting in further refinements in plenary. The changes resulting from the Malacañang proposed amendments are similarly reflected in the House Committee report. To summarize, the major changes embodied in the version passed up to Third Reading by the Senate of the 15th Congress are as follows:

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(1) It adopted the inclusion of the phrase "national security" in exception 1, thereby providing the Executive greater flexibility than the bicameral conference version, which confined national security matters to defense and foreign affairs matters. This expansion addresses the concern expressed by President Aquino over the adequacy of the protection of national security matters. (2) It adopted a new exception on the Presidential communications privilege (more popularly referred to as executive privilege) to address President Aquino's concern over his access to free and frank opinion and discussion with his closest advisers. (3) To balance the advocates' concerns over potential abuse of exceptions and criticisms of "watering down" of the FOI bill, the safeguards were further strengthened. In addition to the legal presumption in favor of access, the following additional safeguards on the exceptions were agreed on: The exceptions shall be strictly construed; Exceptions cannot be invoked to cover-up a crime, wrongdoing, graft, or corruption; Whenever the information covered by an exception may be reasonably severed from a record, the part not covered by the exception shall be disclosed to the requester; The President, the Supreme Court, the Senate, the House of Representatives, and the Constitutional Commissions may waive an exception with respect to information in the custody of offices under their respective supervision or control, when they deem that there is a compelling or overriding public interest in disclosure; and In the exercise of the judicial power to interpret the Constitution, the exceptions may be overcome if the requester is able to prove before a court of competent jurisdiction that there is a compelling public interest or need that outweighs the interest in keeping the information secret or confidential. (4) In response to concerns over the administrative burden of publishing the full contents of categories of information/documents for mandatory publication, it was agreed to limit this not to the full contents but only to a register containing a brief description of the transaction, except for contracts and agreements with consideration amounting to at least PhP50 million. (5) Malacañang in fact expanded the list of documents for mandatory disclosure by including the documents required by DBM, and also some by DILG, for website posting by agencies and local governments. In addition, it also included the SALNs in the list for mandatory posting in government websites. (6) In relation to concerns over the gravity of the offenses, the punishable offenses that used to be criminal under the bicameral conference committee version were re-categorized into administrative for some, and leaving only a few acts as criminal. In addition, the defense of good faith was introduced.

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On top of these major changes, Senator Honasan introduced the concept of "people's ownership" of government information in the Senate bill, along with a number of noncontroversial refinements. Finally, the Senate bill also addressed the concern of the Department of National Defense and the Department of Foreign Affairs over the repeal of the current classification system for replacement by a new Executive Order, by providing a transition period. The bill by Senator Guingona and our own Initiative Bill propose a few more refinements particularly in the administrative liability to address what we believe is an inconsistency in regard to the defense of good faith. We hope that disciplining authorities such as the Civil Service Commission can comment on the workability of these provisions. We also removed SALNs from the list of information for automatic publication. Our position is that the law on SALNs found in RA 6713, if complemented by the access procedures under the FOI bill, is a sufficient framework for access. As we mentioned, the inclusion of SALNs was introduced by Malacañang. Considering that this could be contentious with respect to the House, and given that by Malacañang's pronouncements they are leaving the matter to Congress, we feel as advocates that we could do with one less hurdle for the FOI Bill. This leaves us finally with the distinct provisions of Senate Bill 44 by Senator Osmeña. We respectfully submit that most of its provisions are taken up in the bills closely associated with one another. One conflicting provision though is that Senate Bill 44 limits its coverage to the Executive Department. We believe that there is consensus by the majority that the right to information applies to all government agencies. Another distinct provision in Senate Bill 44 is the provision on oversight through the submission of reports to Congress. We submit that the Committee considers adopting this. Before ending this submission, the Coalition also respectfully attaches to the formal submission various letters of endorsement and appeal coming from some of our member organizations, to demonstrate the clamor and support for the passage of the FOI Act. We believe that, with the bills before the committee already reflecting broad consensus, what is left is for Congress and the Executive to muster the political will to finally pass the FOI Act. We look to the Chairperson and members of the Committee, to the Senate leadership, and to the Senate as a whole, to provide a leading light for this. Maraming salamat po. Respectfully, For the Right to Know. Right Now! Coalition:

Atty. Nepomuceno Malaluan Co-convenor

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