POSTSCRIPT / July 1, 2012 / Sunday


Philippine STAR Columnist

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Access under FOI bill still restricted

FINE-TUNING: The Freedom of Information bill in the House of Representatives, which is the consolidation of 12 versions and the Malacañang edition, looks comprehensive enough — but still needs fine tuning on some delicate points.

Eastern Samar Rep. Ben Evardone, chairman of the House Committee on Public Information, said he expects to have about two more hearings then report out the bill after the State of the Nation Address of the President on July 23.

But after the dozen bills were consolidated, two more were filed. One congressman was insisting on the “right of reply” of persons who feel aggrieved in/by media, while another solon wanted the FOI bill to also cover private business.

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CONSOLIDATION: What we in mainstream media want is mainly the full, timely and truthful disclosure of information affecting the public.

This notion is best appreciated in the light of the Fourth Estate’s traditional adversarial position in relation to government. The Constitution and the statutes mandate public officials to hew to the lines of transparency and accountability.

To give us a better handle on where the Congress is headed on the FOI bill, we secured from Evardone’s committee a copy of the 5,500-word consolidated bill which is the working copy proposed by Quezon Rep. Lorenzo Tañada III.

This copy substitutes for House Bills 53, 11, 22, 59, 86, 133, 301, 830, 1713, 1968, 2128 and 2969 filed by congressmen Tañada, Biazon, Teodoro, Nograles, Angara, Casiño & Colmenares, Bello & Bag-ao, Romualdo, Apostol, Del Mar, Castelo and Escudero.

The bill declares as 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. 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.”

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RIGHT TO ACCESSS: “Information” is defined 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 proposed law gives every Filipino – not just media — the right to access to public information upon request. It commands all government agencies to “make available to the public for scrutiny, copying and reproduction in the manner provided by this Act, all information pertaining to official acts, transactions or decisions, as well as government research data used as a basis for policy development, subject to the exceptions enumerated under Section 6.”

It gives agencies a deadline of 15 working days to supply the information, with extension of 20 days. It also orders them to put up websites for online accessing.

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EXCUSE FOR SECRECY: The scope of the right to access under the bill looks broad enough, but there are areas where unreasonable secrecy seems to rule.

While there is a legal presumption in favor of access, a request for information may be denied if it falls under the exceptions listed. One such exception (sounds like Malacañang talking) is when:

“The information 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 matter or of the impairment of the Chief Executive’s deliberative process that would result from the disclosure thereof.”

While the same section says that “once policy has been formulated and decisions made, minutes and research data may be made available for disclosure,” it takes that back by saying “unless they were made in executive session.”

Other agencies may hide their deliberations and records under a shroud of secrecy by simply declaring that the subject had been taken up in “executive session.” This blanket excuse for secrecy is open to abuse and has no place in a genuine FOI law.

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CONFIDENTIALITY CLAUSE: Another case where access may be denied is when the information requested “pertains to trade secrets and commercial or financial information obtained from a natural or juridical person other than the requesting party, obtained in confidence or covered by 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.”

This exception is too broad, too vague and open to abuse.

We have seen too many instances when legitimate media could never look into signed contracts of government agencies with private persons or entities just because a clause had been inserted saying that what the parties deemed confidential may not be divulged to third parties.

This practice should be struck down, especially where one party to the business contract is a government entity. Imagine, taxpayers cannot even inquire into what their government had signed away in their name!

A general rule, with no exceptions, must be laid down that when public funds and/or public interests are involved, no contract or agreement may contain such a confidentiality clause.

Experience has shown that in such a dark clause are planted the seeds of corruption.

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(First published in the Philippine STAR of July 1, 2012)

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