POSTSCRIPT / December 6, 2012 / Thursday

By FEDERICO D. PASCUAL JR.

Philippine STAR Columnist

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Read first the FOI bill that you want passed

READ IT!: Those clamoring for the speedy approval of the Freedom of Information bill better read first the text of the consolidation of 15 House measures, and Malacañang insertions, on the subject.

If you have any of these old House bills numbered 53, 11, 22, 59, 86, 133, 301, 830, 1713, 1968, 2128, 2969, 4252, 4851 and 6555, drop it and get the still unnumbered bill consolidating all of the above.

The latest version starts out well enough, saying in Section 2 (Declaration of Policy): “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.”

When the law’s applicability is in question, there shall be a legal presumption in favor of access. Exceptions are to be strictly construed.

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DEFINITION: The bill defines “information” as “any record, document, paper, report, letters, contract, minutes and transcripts of official meetings, maps, books, photographs, data, research material, film, sound and video recordings, magnetic or other tapes, electronic data, computer stored data, or any other like or similar data or material recorded, stored or archived in whatever form or format, which are made, received or kept in or under the control and custody of any government agency pursuant to law, executive order, rules and regulations, ordinance or in connection with the performance or transaction of official business by any government agency.”

The consolidated bill drew from the public hearings held by the House committee on public information headed by Rep. Ben Evardone of Eastern Samar.

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EXCEPTIONS: Under the exceptions listed in Section 6 of the bill, public access may be denied if the information:

* Is authorized to be kept secret under guidelines set by Executive Order, provided it 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; or pertains to foreign affairs when its revelation shall unduly weaken the negotiating position of the government or seriously jeopardize diplomatic relations with another state.

* Consists of records of minutes and advice given and opinions expressed during decision-making or policy formulation, invoked by the Chief Executive to be privileged by reason of the sensitivity of the subject or of the impairment of the Chief Executive’s deliberative process that would result from the disclosure. But once policy has been formulated and decisions made, minutes and research data may be made available for disclosure unless they were made in executive session.

* Pertains to internal or external defense, law enforcement, and border control, when disclosure would unduly compromise or interfere with a military or law enforcement operation, or with the prevention, detection or suppression of criminal activity, the implementation of immigration controls and border security, or deprive a person of a right to a fair trial or an impartial adjudication, or lead to the identifying of a confidential source of information, or would disclose techniques and procedures for law enforcement or prosecutions, or would risk circumvention of the law or endanger the life or physical safety of any individual.

* Consists of drafts of orders, resolutions, decisions, memoranda or audit reports by any executive, administrative, regulatory, constitutional, judicial or quasi-judicial body.

* Is obtained by any committee of either House of Congress in executive session.

* Is personal and whose disclosure would constitute invasion of privacy, unless it is part of a public record, or the person is or was an official of a government agency and the information relates to his public function or the person has consented to the disclosure.

* Pertains to trade secrets and commercial or financial information or obtained in confidence or covered by privileged communication, and/or filed with a government agency, if its revelation would prejudice his interests in trade, industrial, financial or commercial competition.

* Is classified as privileged communications in legal proceedings by law or by the Rules of Court.

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EXECUTIVE SESSION: There might be need to refine the provisions on “executive session.” Can any government panel or committee clamp secrecy on its proceedings by the expedience of closing the door for an alleged executive session?

Who verifies if indeed the information sought was discussed in executive session? Or even if taken up behind closed doors, if the same matter was discussed elsewhere, can access still be denied?

It may be best to have the subject matter and not the venue determine if indeed information with public character qualifies for the “executive session” cover.

Also, and this is very important, may access be denied by the insertion of a non-disclosure clause in any contract where one of the signatories is the government (or its agency) or a government-controlled corporation or any entity where the government has investments or shares of stock?

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WHO SAYS SO?: The bill vests on the “head… of the government agency in control of the information, or any responsible… officer(s) designated by him” the responsibility of determining if the grounds for exceptions apply.

Does this mean that accessibility hangs on the say-so of that government official?

Under Section 4, the bill grants access only to Filipinos: “Every person who is a Filipino citizen has a right to and shall, on request, be given access to any record under the control of a government agency.”

There will be forms to be filled out, and fees paid, by those applying for access. The waiting period still has to be firmly set.

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(First published in the Philippine STAR of December 6, 2012)

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