There are at least 12 bills on the proposed Freedom of Information (FOI) Act currently referred to the House Committee on Public Information for deliberation.
These are House Bill Number (HBN) 11 by Rep. Rodolfo G. Biazon; HBN 22 by Rep. Marcelino R. Teodoro; HBN 53 by Rep Lorenzo R. Tañada; HBN 59 by Rep. Karlo Alexei B. Nograles; HBN 86 by Rep. Juan Edgardo M. Angara; HBN 301 by Reps. Walden F. Bello and Arlene Bag-ao; HBN 133 by Reps. Teodoro A. Casiño and Neri Javier Colmenares; HBN 830 by Rep. Pedro P. Romualdo; HBN 1968 by Rep. Rachel Marguerite B. Del Mar; HBN 2128 by Rep. Winston T. Castelo; and HBN 2969 by Rep. Salvador H. Escudero III.
The Right to Know, Right Now! Coalition, which actively monitored and participated in the efforts toward the enactment of the consolidated FOI bill during the 14th Congress, examined all versions and identified the features that would make the Freedom of Information Act progressive and reasonable. Similarly, it registered its objections to proposed provisions that defeat the objectives of the right to information campaign.
In a letter to Rep. Ben P. Evardone, chairperson of the House Committee on Public Information, the coalition proposed that in the consolidation of all 12 bills, the committee should adopt those bills that embody the bicameral conference report of the 14th Congress as starting point. “This version has been thoroughly discussed through the full legislative process in the last Congress―from first reading to third reading in both Houses, to the version reconciled and unanimously approved and signed by the bicameral conference committee.”
The coalition said that HBN 11, 53, 301 2969 adopted in full the 14th Congress conference committee report. As for the other bills, it made a distinction between provisions that are advantageous and those that are disadvantageous to the proposed Freedom of Information Act.
Under HBN 1713, the coalition supported improvements proposed in Section 5, which states positively the right of every Filipino to request and be given access to government records. It provides a right-duty symmetry by stating the right before proceeding to spell out the duty imposed on government agencies in the succeeding sentence.
Section 8, which provides for protection of privacy, is also a welcome proposal but it should expressly state that it pertains to private persons, that is, those who are neither incumbent officials or employees of a government agency nor past officials with respect to personal information relating to their former public function. Section 9, meanwhile, requires the prompt and mandatory disclosure of “information about a risk of significant harm to the environment or to the health or safety of the public.”
As for HBN 133, the coalition recognized the two major revisions that the bill introduces. First, it does away with all the exceptions for public access to information. Access may be denied only based on substantial evidence that the purpose of the requested access to information is to abet or promote or commit criminal acts, or to engage in sheer and idle curiosity. Second, it shifts the initiation of a court case, from a citizen making an appeal from a denial of a request for information, to government applying for a court order prohibiting the grant of access to information.
The coalition stressed that the bicameral version already stipulates that examination of records for an unlawful purpose is not allowed. If a government agency is in possession of substantial evidence that the examination of the information is for an unlawful purpose, it has the right, even though not explicitly provided in the bicameral bills, to go to court to apply for an order to allow it to prohibit access where no other exception applies. As to “sheer or idle curiosity” as a basis for refusal of access, the coalition disagreed that it should be allowed as an exception as it is open to arbitrary interpretation.
As regards HBN 59, 830 and 2128, the coalition opposed particular revisions being proposed.
HBN 59 introduces a new section on non-retroactive effect which provides that all public information covering matters or transactions that took place before the passage of the act shall be put under seal. All public information covering matters or transactions taking place after the passage of the Act shall be available only during the incumbency of the President under which the matter or transaction took place. All such information under seal may be released only by a special law, or through a subpoena duces tecum issued by a court or by Congress.
This non-retroactivity provision, according to the coalition, is an unreasonable limitation of the right as it will defeat the people’s right to information rather than promote or protect it. The constitutional guarantee of citizen’s access to information does not make any distinction as to when the matter or transaction referred to was recorded. In addition, the non-retroactivity provision has the effect of negating the public right nature of the constitutional guarantee on access to information. The Supreme Court has consistently held that a citizen need not show a present and existing interest of a pecuniary character in the information sought to be regarded a party in interest in a case to compel access to information. Making historical information accessible to the public only by a subpoena duces tecum implies that access requires evidentiary relevance in an ongoing case, in which the citizen must be a party having personal interest.
Meanwhile, HBN 830 introduces a number of exceptions that are either over-broad, vague, or highly discretionary as to nullify the constitutional right to information. One example is Section 6 (e), which exempts from access “information that affects our national sovereignty.” National sovereignty refers to the power of an independent state to govern itself and to conduct foreign relations. Indeed it covers virtually all aspects of governance, and all acts and transactions of government can be argued to affect national sovereignty. Another example is found in Section 6 (g), exempting information “which may affect the interest of the Republic of the Philippines abroad,” and similarly, Section 6 (i), exempting information “that affects the economic interest of the Republic of the Philippines within and outside the country.” This gives the government a roving discretion in refusing access to information, as all policies can be argued to affect the economic interest of the country.
With regard to HBN 2128, it adds a highly discretionary exception. Specifically, Section 7 (l) exempts information which, “in the reasonable opinion of a qualified person, would prejudice the effective conduct of public affairs.” The Supreme Court has time and again emphasized the repugnance of arbitrariness to fundamental rights. In the case of Legaspi v. Civil Service Commission, the high court ruled: “Without a government’s acceptance of the limitations imposed upon it by the Constitution in order to uphold individual liberties, without an acknowledgement on its part of those duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty, the ultimate illusion.”
Furthermore, HBN 830 assigns the primary burden of proof in accessing information to the requesting public. The coalition said that this violates the constitutional guarantee that, “in case of denial of access, the government agency has the burden of showing that the information requested is not of public concern, or, if it is of public concern, that the same has been exempted by law from the operation of the guarantee.”
HBN 830 also expands the coverage of the duty to disclose information to include “private institutions including the media.” The coalition said that the private sector’s duty to disclose information to the public is better tackled in a separate bill or measure. By the structure of the bill of rights, it mainly addresses the limiting of government powers.
In pushing for the passage of the Freedom of Information Act, the coalition made it clear that the objective is not to use information “to exact ransom, extort money or property, coerce government in changing policies to conform to our whims, caprices and syndicated acts, or to harass people in government.” Instead, the goal is to make informed participation in government decision-making, enhance government accountability, and assist in making government programs and services accessible to the public.
Dear Elizabeth 