It is easy to celebrate the approval of the Freedom of Information Bill at the Committee Level in the House of Representatives. After all, they’ve got the Senate and Malacañang on their side.
But of course that’s also reason to wonder: what is it that’s in this version of FOI, purportedly a coming together of all 24 FOI bills that were consolidated by the Technical Working Group (TWG) of the House Committee on Public Information, that makes it “the chosen one” by our politicos in the Senate and the Palace?
Invoking privilege in policy making
The Makabayan bloc in the House came out with a position paper on the TWG FOI Bill, pointing out how weak it actually is, and how much more difficult it will be to actually get information on government officials’ wheeling and dealing precisely because government officials are given the freedom to say no, we’re not giving the public this information.
It is Section 7, a list of exceptions to the granting of access to information that we should all be looking at. Because as with many purportedly wonderful things that come out of any government, it is the exceptions that make laws toothless, and well the current version of the FOI Bill is, uh, no exception.
Section 7(b) of the Consolidated FOI Bill for example, allows the President to declare as “privileged” “records of minutes and advice given and opinions expressed during decision-making or policy formulation” – and these need not even happen in an executive session. This disenfranchises the public from decision-making discussions and processes, where access to information may only be given after the formulation of policy.
We all know what those policies look and sound like once done without public consultation, yes? We live with those policies every day, and it is at the heart of many of our problems with government: the public is kept in the dark, decisions are made only between politicians, and public consultation and participation is non-existent.
And no, building a website that pretends to engage the public in decision-making is not only based on a false sense of this public’s access to the Internet. It is premised on the idea that websites are made for public consultation and “crowdsourcing” public pulse and reaction—all highly arguable of course.
Section 7(c) lists down exemptions to being granted access to information related to defense, law enforcement and border control. The Makabayan bloc questions this at length in their position paper, and rightfully so.
Section 7(c)(iii) states that if the information requested may “deprive a person of a right to fair trial” then this request need not be granted even with an FOI law. There are no qualifications, no further explanation, no additional specific information, with regard this exemption.
And then there are those sections that are such run-on sentences that one wonders if confusion is also the name of the game in the drafting of this consolidated FOI bill.
Section 7(c)(iv) states that requests for information that might “lead to the disclosure of the identity of a confidential source” shall not be granted, which is fine. But also it exempts “the record or information compiled by a law enforcement authority in the course of an investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.”
That is, as this FOI bill protects the confidentiality of the source of information, it also gives the powerful the opportunity to invoke this section with regards the public disclosure of the information provided by these sources.
So apparently, with this consolidated FOI Bill, the public could be denied access to information from someone like Benjur Luy. And every government official can say that information cannot be revealed to the public because it would deprive him or her from getting a fair trial.
Oh happy day for the corrupt official!
The status quo
Section 8 of the consolidated FOI Bill lists down Qualifications for the use of its long list of exceptions. The terms are just as painfully broad and so general, that one can’t help but wonder if these qualifications matter at all, given that detailed list of exceptions.
It states that the exceptions “shall be strictly construed” and that these “cannot be invoked to cover-up a crime, wrongdoing, graft, or corruption” for example. But what if the information that we need is precisely for proving graft and corruption as committed by a government official? A government official who can invoke that he will be deprived of a fair trial if the information is made public? A government official who can say that the information comes from a confidential source and therefore should not be made public?
How powerful are these qualifications relative to those exemptions, is really the question that needs to be asked. And how might it be used on the ground, in reality, given the manner in which laws are skirted and used by the powerful precisely to get away with wrongdoing?
Number 4 of the list of Qualifications states that “The President, the Supreme Court, the Senate, the House of Representatives, and the Constitutional Commissions may waive an exception with respect to information in the custody of offices under their respective supervision or control, when they deem that there is an overriding public interest in disclosure.”
But why would they? Which government or government branch or office would reveal information because of “an overriding public interest in disclosure,” which by the way, is difficult to prove, no matter social media. Overriding public interest is like the bosses in the President’s head, the ones that he’s always talking about: invoked when it is useful, and ignored the rest of the time.
One gets a sinking feeling that the consolidated FOI Bill thinks of the public in exactly this same way, too.