Six centuries ago, Johannes Gutenberg’s printing press accelerated the spread of information, to put it quantitatively, by a factor of a thousand. A century ago, Alan Turing’s digital computer speeded it up further by a factor of a million.
The upshot? We now live in a wired, networked, global world.
Most countries have readily become comfortable with and even thrive in the idea of openness and free flow of information. As of April 2010, at least 80 states have enacted into law the right of, and procedures for the public to request and receive government-held information. Sweden was the first to enact a right to information law in 1766, followed by Finland much later in 1953, and by the United States in 1966.
Like a shaft of sunlight
In the Philippines, however, Congress is taking it ever so slowly to legislate freedom of information (FOI), a right that is already guaranteed in the Constitution.
Article II, Section 28 of the 1987 Constitution directs the national government to adopt and implement a policy of full public disclosure of all its transactions involving public interest. This mandate is amplified in Article III, Section 7 which recognizes the right of the people to information on matters of public concern. It also affords the citizens access to official records, documents, and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development.
Quoting US Supreme Court Justice Louis Brandeis, who said that “sunlight is the best disinfectant,” Prof. Solomon F. Lumba of the UP College of Law compared the transparency provisions in the Constitution to sunlight on a cloudy day.
“We need to part the clouds in order to let the sunlight in and dispel the shadows that hide the many vampires, goblins and aswangs in government,” he said. “This is essentially what an FOI law does. It makes effective the transparency provisions in the Constitution; it allows ‘sunlight’ to do what it naturally does—disinfect.”
The FOI bill came very close to getting enacted on June 4, 2010 or on the last day of the 14th Congress. Although the bill was right on top of the legislative agenda, it was not ratified as the House of Representatives failed to reach a quorum with only 128 lawmakers in attendance.
Proponents of the FOI found a new champion in President Benigno Aquino III who, during the May 2010 elections, ran on the platform of transparency and accountability. In his campaign sorties, he repeatedly assured voters that he would support their right to information. But last February 28, at the Legislative-Executive Development Advisory Council meeting, the President submitted a list of 17 priority legislative measures, with the FOI bill noticeably missing.
Lumba found ironic President Aquino’s decision to backtrack on the FOI since the latter voted for the bill when he was still a senator. Lumba said that the non-inclusion of the FOI bill in the Palace priority list “certainly makes the campaign more of an uphill climb. Like it or not, the realpolitik is that some legislators, especially in the House, take their cue from the President. If he’s not fully committed to passing the bill, then you can’t expect these legislators to stick their necks out for it, too.”
Ryan Oliva, a senior student at the UP College of Law and convenor of the Student Initiative for Legislation on Access to Information by the Public (SILIP), agreed. “We all know that the President, through his ruling party in Congress, can make things possible. President Aquino’s decision not to include the FOI bill in his list of priority measures will slow down our right to information campaign.”
Proposals, counter-proposals
Malacañang has raised concerns about the FOI measure being open to abuse and misuse. At a press briefing on February 28, Presidential Spokesperson Edwin Lacierda announced that the government is currently conducting an inter-agency review of the bills pending in Congress and, at the same time, studying the US Freedom of Information Act and the UK Official Secrecy Act. Based on its findings, he said, the Palace will draft its own version of the bill, addressing such concerns as striking a balance between the individual’s right to privacy and the public’s right to information.
Lumba, who is also affiliated with the Right to Know Right Now! Coalition, a 150-member network of organizations and individuals from various sectors, welcomed Malacañang’s proposal to create an Information Committee. “The United Kingdom, for example, has an independent Information Commissioner’s Office to uphold information rights. It should be noted, however, that a similar proposal was made a few Congresses ago but was shot down by some legislators because it would add to the bureaucracy. But structurally speaking, it is really the best way to go.”
A provision on the protection of whistleblowers, according to Lumba, is also a good idea. He clarified, however, that a whistleblower bill is already going through a separate legislative process.
The Palace also wants to review the verbiage of national security exception from disclosure in the FOI bill. “This is acceptable. National security is one of the traditional exceptions to the right to information. The important thing is that the final verbiage be narrowly drawn. If it is too general, then anything can be argued to fall under national security, rendering the right nugatory,” said Lumba.
Similarly, he said that the proposal to include the deliberative process privilege as part of the exceptions in order to preserve the quality of decision-making is reasonable. “Government officials will be less candid with their opinions during deliberations if they knew that these would be plastered all over the quadri-media the next day.”
As for exploratory talks involving commercial transactions which the Palace wants to include as part of the exceptions among the accessible information, Lumba said, “This is negotiable, as long as it is established that its benefits clearly outweigh the costs, and the verbiage is narrowly drawn.”
However, he said that the proposal to delete the penal provisions is not a good idea. “Without the penal provisions, an FOI law would just be a glorified version of RA 6713—all bark, no bite. Penal provisions will really help create a culture of transparency in government. It compels our officials to give heightened attention to the citizens’ right to information. With penal provisions in place, such right will always be at the forefront of their consciousness.”
Lumba said that an FOI law must provide for a presumption in favor of access to all information held by the government, a bill of exceptions that must both be limited in scope and narrowly drawn, and a “public interest” override clause to allow access to information even if it is covered by the exceptions. It should also spell out procedures that facilitate speedy, timely and inexpensive access to information, and review of denials to such access. It must also have a list of key information that government must not only allow access to but must proactively disclose; and protection of government officials and employees who, in good faith, allow access to or disclose information that are covered by the exceptions. Most important, it should specify criminal penalties for willful violation of the right to information.
Before the shot clock goes off
At present, the FOI bill is with the Committees on Public Information in the Senate and the House of Representatives and with the President’s Inter-Agency Committee. “Let us hope that these committees are not just running out the 24-second shot clock. This is why the Right to Know Right Now! Coalition is trying to engage these committees to commit to a time frame,” Lumba said.
At the UP College of Law, Oliva said SILIP is getting in touch with other students through social networking sites to educate the public and reach out to policy makers about the need for an FOI law. “Everyone should know that access to information is a right guaranteed by the Constitution. If the people themselves do not realize the value of this important right, they cannot push their elected representatives to enact the FOI bill.”
But with all the wheeling and dealing, flip-flopping commitments, backdoor negotiations that have surrounded and continue to surround the campaign for a freedom of information law, Lumba is wary about the final version of the bill. “Let us hope that if the bill ever comes out of [the Senate and the House] committees, it would not be so emasculated as to render the right nugatory. After all, there’s a saying that a donkey is a horse created by a committee.”
Freedom of information is ultimately about good governance—informed citizen participation in government decision-making, enhanced government accountability and transparency, and accessible government programs and services. Former Supreme Court Associate Justice Irene Cortes, in deciding the case of Valmonte v. Belmonte, said it best: “An informed citizenry with access to the diverse currents in political, moral and artistic thought and data relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the democratic government envisioned under our Constitution….Denied access to information on the inner workings of government, the citizenry can become prey to the whims and caprices of those to whom the power had been delegated.”
Dear Elizabeth 