Freedom Of Information Act Stalled In Senate

From ABS-CBN News / Newsbreak

by Purple S. Romero
Sunday, 31 August 2008

The passage of the freedom of information act, which can force government agencies to disclose state “secrets,” has hit a snag in the Senate.

The Senate Committee on Public Information, chaired by Sen. Ramon ‘Bong’ Revilla, has yet to conduct a hearing on House Bill 3732 or the Freedom of Information Act (FOI) after the House of Representatives approved the bill last May.

Rep. Lorenzo ‘Erin’ Tañada III, lead author of HB 3732, said in a public forum on the FOI held Friday at the Ateneo de Manila University that the access to information bill is in danger of being derailed in favor of “priority” bills such as the one on whistleblowers’ protection.

According to a source who requested anonymity, the Senate Committee on Public Information has cancelled three hearings on the FOI. These hearings were cancelled a day before or on the day of the hearing itself. The reason: the committee has not done any research on the bill.

After 20 years

HB 3732 is considered a watershed piece of legislation since there is yet no enabling law for citizens’ rights on access to information 20 years after the 1987 Constitution was enacted, Tañada said.

“In the decision on Chavez vs. NHA, the Supreme Court wrote that it is unfortunate that after almost 20 years after the 1897 Constitution was made, there is no enabling law that provides mechanism for the compulsory disclosure of information,” he explained.

The 1987 Constitution accords Filipinos the right to access information crucial to public welfare and interest.

The “demand” side of this right, Tañada explained, is laid out in Article III, Sec.7 of the Constitution. This provision states that the public should have “access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development”, subject to limitations as may be provided by law.

On the other hand, the “supply” part of the public’s right to information is delineated in Article II Sec. 28. This provision says that “subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

The constitutional right to access of information should be “self-executing,” Tañada said. However, it is often violated due to the following constraints:

* There is no uniform procedure detailing the disclosure of information;
* Lack of specification of the coverage of guarantee, particularly the general rule on information that may exempted;
* There is no effective basis for imposing administrative or penal sanctions.

Tañada said that the FOI passed by the lower house addresses these concerns. It provides general procedural mechanisms for requesting and providing information, and it also narrows the kind of records that may be kept hidden from the public eye.


Aside from this, HB 3732 criminally and administratively sanctions both public officials and private individuals who would bar access to documents, data, contracts and other government records pertinent to public interest.

Sec. 15 of FOI stipulates that public officers and private persons who would strike down requests for information would face imprisonment of a minimum of six months to a maximum of one year.

If the denial of information is overturned by the Office of the Ombudsman, authorities who failed to disclose the requested documents would be made to pay P1,000 each day, starting from notice of denial until the request is finally complied with.

The FOI mandates government agencies to comply with requests for information within 10 calendar days. Tañada said that the said time frame is more stringent than the 15-day period set in RA 6713 or the Code of Conduct and Ethical Standards for Public Employees.

Sec.5 of RA 6713 requires government bodies to reply to requests for information within 15 working days upon receipt of a request.

However, Tañada explained that this provision is often misconstrued as the rule for compliance. “Government authorities often look to Sec.5 of RA 6713 as the way of addressing requests for information,” he said.

Limiting executive privilege

According to Vincent Lazatin, executive director of the Transparency and Accountability Network, a member-group of the Access to Information Network which drafted the framework for the FOI, HB 3732 was crafted following the issuance of Executive Order (EO) 464.

President Arroyo signed EO 464 at the height of the Senate investigation on Northrail and the “Hello Garci” scandal, which exposed the president’s alleged cheating in the 2004 elections.

Lazatin said EO 464 imposed a gag order on government officials as it required department heads to seek permission first from the president before they appear in Senate hearings.

It also gave teeth to executive privilege, which former Socioeconomic Planning Secretary Romulo Neri invoked during the Senate probe on the botched $329 million-National Broadband Network (NBN) deal between the government and Chinese telecommunications firm, ZTE Corp.

Sec.8 of HB 3732 aims to weaken executive privilege by mandating that all information regarding executive action should be made available to both houses of the Congress.

HB 3732 has safeguards against the disclosure of information considered pivotal for internal security and foreign relations. It exempts the following kinds of information from public disclosure:

* when it could create a clear and present danger of war;
* when the information pertains to foreign affairs and when its revelation would unduly weaken the negotiating position of the government in bilateral or multilateral negotiations;
* when the information could compromise internal and external defense and law enforcement, among others.

But HB 3732 states that even the above exempted information should be shared at all times to the legislative department.

SB 1578 vs. HB 3732

Meanwhile, Akbayan Rep. Rissa Hontiveros-Baraquel pointed out that Senate bill 1578, the Senate version of HB 3732, reflects the objectives of the FOI, but it has procedural ambiguities and provides limited remedies.

SB 1578, authored by Senate President Manuel Villar, does not adopt the policy of mandatory disclosure as stipulated in Article II, Sec. 28.

She added that in the Senate version, the “procedure is not as clear” as the House bill on when government should release requested information.

“SB 1578 states that requests on information should be complied with within five working days but could be extended to 15 days, as opposed to HB 3732’s 10 calendar days,” she said.

People also only have the Supreme Court to go to when their request for information is unduly denied as stipulated in SB 1578. On the other hand, Hontiveros said that HB 3732 gives citizens the option to seek redress at the Office of the Ombudsman.

SB 1578, however, seeks for the declassification of documents. Documents could be reviewed for declassification after five years. After 20 years, however, any document is already considered declassified without the need for a review unless the president declares its continued classified status.

The Senate version of FOI also waives and reduces fees for the reproduction of requested documents, while HB 3732 obliges the party who made the request to answer reproduction costs.

Hontiveros said that they are still lobbying for HB 3732 to be the template for the consolidated bill on FOI.

Before 2010

Tañada said that they are pushing for the passage of the FOI before 2010. He urged for the quick passage of this bill, citing a UN study which said that corruption in the country has already eaten away 13 percent or $1.8 billion of the national budget.

In case the FOI is not passed before 2010, he said the bill would again have to go through the whole approval process in the Lower House.

With the stalled hearings on FOI in the Senate, Tañada said the FOI may eventually fall victim to stonewalling, unless there is strong public clamor for its expeditious passage.

We tried to get the side of Senate committee on public information chair Revilla on this allegation, but our calls and text messages were not answered by his chief-of-staff.

We were able to reach Senator Richard Gordon, a member of the Senate committee on public information. He told us however, that he has not seen a copy of HB 3732 and was not aware of any committee meetings held on the said bill.

Test case

If HB 3732 becomes a law, however, Hontiveros said that a possible test case for it is the P90 million renovation of the Batasan Pambansa building, home of the House of Representatives. She said a student has asked for public disclosure of the documents on the renovation.

Hontiveros said Congress should disclose how the House of Representatives spent the P90 million. After this, architects and interior designers could come up with their own cost estimates and then compare the figures with the expenses of the Lower House.

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