President Rodrigo Duterte accomplished in less than a month what PNoy promised but failed to do during his entire 6-year presidency: pass a Freedom of Information (FOI) measure. Fulfilling his promise of transparency, Duterte issued barely a month after taking office, the landmark Executive Order (EO) No. 2 on freedom of information. Score one for Duterte.
The EO gives Filipinos “access to information, official records, public records and to documents and papers pertaining to official acts, transactions or decisions, as well as to government research data used as a basis for public development.” Although not exactly a law, Duterte’s order is a big, bold step toward promoting transparency in government.
We recall that as far back as 2013, Senator Alan Peter Cayetano already called on PNoy to do exactly the same thing: issue an executive order directing government agencies to make records available to the public while the FOI bill remains stuck in Congress. But PNoy turned a deaf ear. Instead, apologists of the past administration gave a-thousand-and-one excuses why it could not pass an FOI law.
Although Duterte’s order only covers government offices under the executive branch such departments, bureaus, offices, government-owned and controlled corporations and local government units (LGUs), its impact will be significant especially since most of the big-ticket and multibillion-peso projects – and controversial awards – are made by executive branch offices.
For one, the FOI order of Duterte establishes “a legal presumption in favor of access to information, public records and official records” and that “no request for information shall be denied unless it clearly falls under any of the exceptions…”
This means that the burden of proving why the information requested by any Filipino should be denied falls on the head of the agency from whom such information is being asked if the information does not fall under the exceptions. That, however, is the big IF.
But recent developments seem to indicate that Duterte’s FOI legacy is in danger of being emasculated to impotence.
Not a few thinking Filipinos were dismayed to learn recently that the Department of Justice (DOJ) and the Office of the Solicitor General (OSG) came up with some 166 exceptions to the FOI order. Under EO 2, the DOJ and OSG were tasked to prepare the so-called “inventory of exceptions” or the grounds for the denial of requests for information.
A draft of the FOI People’s Manual from the Presidential Communications Office (PCO) circulated to media showed an annex containing 158 “exceptions to FOI” and another six denominated as “other exceptions.”
We pored over the long list of exclusions in the draft FOI manual and by and large, majority of the exceptions consists of data that are prohibited by the Constitution or by law from being divulged to the public.
Among them are information directly relating to national security and internal or external defense of the state, executive privilege information relating to the President’s deliberations or exercise of his powers, closed-door Cabinet meetings, adoption records, health records and school records of individuals, witness protection data, etc.
There are also other exceptions, which should not have been included in the first place such as court records or information obtained by Congress since these pertain to other branches of government (i.e. judiciary or the legislature). There are also a few exceptions that are redundant because they basically fall under the same category such as trade secrets or banking transactions, for example.
But what some people find worrisome is that the draft FOI Manual contains several exceptions that are not grounded on clear legal or constitutional grounds. They are apprehensive that the many vague or generalized exceptions will make the FOI order more of a withholding rather than a disclosure mechanism.
For instance, “confidential information known to a public official or employee by reason of his office” cannot be disclosed under the manual. The problem, however, is that the manual itself does not define what constitutes “confidential information.” In fact, there are several exceptions based on “confidentiality” that public officials can practically deny or refuse all requests for information on this basis alone.
With the manual’s exceedingly long list of exceptions, one cannot help but compare Duterte’s FOI order with the United States’ Freedom of Information Act – enacted 50 years ago in 1967 – and lists 9 (yes, only nine) categories of “exempt” information, only one of which involves “confidential” matters.
These nine exemptions are: (1) information that is classified to protect national security; (2) information related solely to the internal personnel rules and practices of an agency; (3) information that is prohibited from disclosure by federal law; (4) trade secrets or commercial or financial information that is confidential or privileged; (5) privileged communications within or between agencies; (6) information that, if disclosed, would invade another individual’s personal privacy; (7) information compiled for law enforcement purposes; (8) information that concerns the supervision of financial institutions; and (9) geological information on wells.
The American FOI law also allows the government agency to “redact” or to censor or obscure certain parts of the document in order to remove sensitive data and allow its release to the public. Some observers are waiting to see if the FOI manual will have a similar provision.
This is the first time in the post-EDSA era that a President has finally come up with a freedom of information measure without the intervention of Congress. Which is why ordinary folk are hoping Duterte’s historic FOI order does not turn into a cruel joke.