The House Committee on Public Information has approved the Freedom of Information (FOI) bill which consolidates the provisions of several other bills proposed by congressmen, Malacañang, and the Right to Know Right Now coalition of nongovernment organizations and journalists’ and media advocacy organizations. But not everyone’s breaking out the champagne.
One can understand the skepticism not only of some political groups but also of some journalists who fear that the bill, even in its present and far from perfect form, will undermine both the human right to information and the practice of journalism as an investigative enterprise.
A Freedom of Information Act is supposed to enhance every citizen’s access to government-held information, but Section 5 of the bill passed by the House committee immediately shoots down whatever hopes for transparency citizens may have by subjecting to several conditions the guarantee of access to information in its first sentence.
The version the Senate approved in the middle of this year simply states in its Section 5 that “every Filipino citizen has a right to and shall, on request, be given access to any record under the control of a government agency… subject only to the exceptions enumerated in Section 7 of this Act.”
The House version only partly uses the same language. In what looks like an attempt to deceive and disarm critics, it disingenuously adds that “government agencies and public officials shall have the duty to disclose and make available… all information pertaining to official acts.” But it tacks on a “provided” and “provided further” clause exempting from access “private acts, transactions or records of public officials,” and declaring that the statements of assets, liabilities and net worth (SALN) of public officials “shall be released subject to existing rules, and regulations.”
Such information in SALNs may also be accessed only “upon order of the Sandiganbayan” based on a finding that disclosure may have a bearing on the commission of an offense. These conditions make the declaration mandating government agencies’ disclosure of information practically meaningless.
The list of exceptions is usually the most problematic in FOI laws, but the House version imposes exceptions in Section 5 even before its own list of exceptions in Section 7 does. A number of the exceptions listed in both the House and Senate versions — meaning government-held information that may not be accessed by citizens themselves — are equally or even more problematic.
Paragraph (b) of Section 7 of both versions excludes from citizen access “records of minutes, advice given or opinions expressed during decision-making or policy formulation invoked by the Chief Executive to be privileged” — the Senate version adds the phrase “by reason of the sensitivity of the subject matter” — “or by reason of the impairment of the Chief Executive’s deliberative process that would result from the disclosure thereof.”
Only when the decision has been made or the policy adopted may minutes of meetings and research data be disclosed, thus preventing citizens, despite the impact on their lives of government decisions and policies, from expressing their views before such policies are adopted and decisions made.
Paragraph (c) further exempts citizen access to information pertaining to national defense, law enforcement and border control, when disclosure would, according to subparagraph (i) “compromise or interfere with any legitimate military or law enforcement operation.” This raises the question of whether this provision would prevent access to information related to the arrest and detention of individuals accused by the military or police of being members of groups opposed to the government during a “legitimate operation.”
Given the appalling human rights record of the police and the military, will this provision not assure that violations of human rights in the course of such arrests, or even during a military operation such as alleged encounters with armed groups, will be exempt from disclosure, thus encouraging even more blatant rights violations such as illegal detention, abductions, torture and even extrajudicial killings?
Subparagraph (iii), on the other hand, which exempts from citizen access information that may deprive a person his or her right to a fair trial, has been correctly criticized as likely to be used to prevent disclosure of corruption and other forms of wrongdoing, on the excuse that the revelation would deny the individual concerned his right to a fair trial by subjecting him to publicity.
Journalism ethics already forbids trial by publicity, but that prohibition is often outweighed by the fact that in many cases, only media attention has led to the prosecution of public sector offenders. This provision could be used to prevent the media and ordinary citizens from exposing instances of official wrongdoing. A reader of this provision cannot be blamed for suspecting that it is in the bill precisely for that purpose.
Meanwhile, Subparagraph (f) allows government agencies to edit or erase portions of information on the personal life of an individual if its disclosure would constitute an “unwarranted” invasion of his or her privacy. It would make the information sought worthless in such cases as when personal information on a government functionary is relevant to the exposure of wrongdoing by a citizen or the media.
Some information on the private lives of officials, such as the number and names of the members of his family, or for that matter, his illicit affairs, could be relevant to the way he or she exercises his official functions. Subparagraph (f) would prevent access to such information. And yet, the entire country has many times seen the need for information on, and exposure of, the private lives of public officials. The case of the multiple households of Joseph Estrada, whose complicated private life had a bearing on how he was discharging his official duties, is only one of several examples.
The House and Senate versions have practically the same provisions in their Section 7 list of exceptions. Although the Senate version has been unanimously approved by the Senate, neither version has the last word on the final version of the bill. The House version will have to be discussed in plenary session, and reconciled with the Senate version in the bicameral committee of both Houses in which venues it can still be amended — unfortunately, either for the better or for the worse.
One can expect those members of the House who are sincerely for an authentic FOI to propose during the plenary amendments to correct its problematic provisions. But it is also likely that those other congressmen (and women) who have political and pecuniary interests in denying the people’s right to know will propose amendments intended to turn the bill into its very opposite: as a means of denying access to information.
Unfortunately, the latter are likely to have the numbers. That would leave the task of finalizing a true FOI Act to the bicameral committee, where, as we learned about how the Cyber Crime Prevention Act of 2012 came to be, anything and everything can happen. The advocates of an authentic FOI will hopefully continue the struggle for the realization of the right to information — hopefully even beyond 2016. But while hoping for the best, citizens must be prepared for the worst.
Luis V. Teodoro is the deputy director of the Center for Media Freedom and Responsibility
Published in Business World
December 4, 2014