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By Karol Anne M. Ilagan
, Philippine Center for Investigative Journalism
The public’s right to
information is expressly guaranteed by the 1987 Constitution and
affirmed by the judiciary. Yet access to data held by state agencies
not only remains limited, it has become nil in some cases,
apparently because of the current Senate scrutiny of particular
government projects.
In fact, based on the recent
experience of the Philippine Center for Investigative Journalism (PCIJ),
agencies that had previously been accommodating of requests for
information have suddenly shut their doors on such.
One stark example is the National
Economic and Development Authority (NEDA), which last year initially
granted the center’s various requests for data regarding projects
using official development assistance (ODA). But after Executive
Secretary Eduardo Ermita issued a memorandum order in September 28
restricting the release of specific national broadband network
documents to the Senate blue-ribbon committee, as well as to media
agencies, the authority stopped processing requests for information
connected to the project.
As of this writing, NEDA even
plans to draft new guidelines for the release of project documents,
a move that could further curb information access.
Sliding back?
Which is sad, said veteran
journalist and occasional PCIJ fellow Roel Landingin. Before
scandals involving state projects began erupting late last year, he
said, the government seemed headed toward transparency. At the very
least, advances in technology had been enabling agencies to increase
transparency in their dealings and make more data available online.
“One hundred percent access,
NEDA used to be like that,” Landingin said. “Perhaps, because of
the intensity of attacks [on the President], access to information
has been restricted.”
Nepomuceno Malaluan, lawyer and
Access to Information Network co-convenor, said that when an agency
withholds the information, it is probably to protect certain public
officers from embarrassment, or from criminal or administrative
liability.
Landingin, the Manila senior
correspondent of The Financial Times of London, added that “some
agencies are covering their backs.” Landingin wrote the latest
Philippine Center for Investigative Journalism series on ODA
projects. Besides interviews, his report was based largely on a
six-month review of official documents that covered 71 of these
projects. This meant gathering various aid project documents such as
copies of contracts, memoranda of agreement, feasibility studies,
cost-benefit studies, presentation materials, status reports, and
other related materials. This also meant submitting official
requests for data and documents from various government agencies.
The PCIJ research team kept a log
of request approvals and denials from July to December 2007, during
the data-gathering work for the story. The center also recorded the
number of phone calls made, letters sent by fax and e-mail, and the
number of employees the researchers had spoken with or and were
referred to.
Law affirms access
Republic Act 6713 or the Code of
Conduct and Ethical Standards for Government Officials and
Employees, provides a general rule on access to information.
Implemented on March 25, 1989, Section 5 of the Code states: “All
public documents must be made accessible to, and readily made for
inspection by, the public within reasonable working hours.”
Malaluan explained, “When you
go there [government office] and make a request—based on that
single rule—they [officials] should make it available as long as
it is of public concern.”
The PCIJ made 23 official
requests, but only 15 were addressed and eventually granted. This
makes for a 65 percent rate of approval of requests for information.
Still, most of the agencies that approved the requests also did not
provide all the information that the center had asked for.
For sure, some turned out to have
incomplete data and had to refer PCIJ to other offices for the
missing materials. Others, however, chose to release some
information while withholding the rest of the data requested.
The Department of Transportation
and Communications, for instance, gave PCIJ a copy of the broadband
contract, but excluded the annexes.
Contacted by phone, the
department’s Contract Review and Documentation Division said the
project supplier, China’s Zhong Xing Telecommunication Equipment
Co. Ltd. (ZTE), had claimed “proprietary rights” over the
contract annexes and feasibility study.
The Philippine Center for
Investigative Journalism then requested the department for a formal
written explanation for the exclusion of the annexes, but the
department has yet to do so. Landingin, meanwhile, said the
department can still find a way to make important information like
component costs (to check for overpricing) available without
compromising the supplier’s rights.
“Executive privilege”
The Philippine Center for
Investigative Journalism also asked for a formal written response
from the agencies that rejected its requests. Out of the eight
rejected requests, however, only three agencies issued a written
response that stated the reason why the request was turned down. All
the responses invoked either the so-called confidential nature of
the information requested, or simply, executive privilege.
The Department of Finance said
the request for the loan agreement between Export-Import Bank of
China and the Philippine government for the Non-Intrusive Container
Inspection System Project would have to be referred to the Office of
the Chief Presidential Legal Counsel because the requested document
“may fall within the mantle of executive privilege and
information.” This is even though government deals, once signed,
become public documents.
The Philippine Domestic
Construction Board, for its part, said it was turning down the
request for the Excel file version of its Consolidated Constructors
Performance Summary Report because its policy is “to keep the
source documents or files in strict confidence.”
It must be stressed that the same
report was already available in PDF format on the website of the
Government Procurement Policy Board. PCIJ requested for a copy in
Excel only because this would make it easier for researchers to
segregate foreign-funded projects from locally funded ones, list
contractors and projects by implementing agency, and rank
contractors by worth of projects awarded to them. The center later
got the requested Excel version from the policy board.
Then there was the Philippine
National Railways, which declined to release NorthRail and SouthRail
Linkage Project documents to the Philippine Center for Investigative
Journalism because, a railways representative said, its Korean
partners in the venture had “reservations of some sort.”
Landingin said in the past, he
was able to secure NorthRail documents. This time around, the
Philippine National Railways was not the only state institution that
decided to withhold the requested papers. North Luzon Railways Corp.
took almost seven weeks—during which it waited for the appointment
of a new chief—to decide to turn down the request for NorthRail
project data. The PCIJ also had to call the railway corporation the
most number of times (21) among the agencies it contacted for
Landingin’s report to follow up requests.
NorthRail, another aid project
that has encountered controversy and seems to be currently in limbo,
was the subject of a PCIJ investigative report in 2005. It was
therefore no surprise that procuring data on it turned out to be
among the most difficult to pull off, as was also the case with
those on the national broadband.
Somehow, though, information on a
lesser-known project was even harder to get—at least from its
implementing agency. Republic Act 6713 stipulates: “All public
officials and employees shall, within 15 working days from receipt
thereof, respond to letters, telegrams, or other means of
communications sent by the public.”
The Department of Public Works
and Highways, however, took 59 days just to say that the documents
for the President Arroyo’s Bridges Program were undergoing audit
by the Commission on Audit.
Fortunately, PCIJ had mailed a
request for copies of the same documents to the aid provider,
Britain’s Department for International Development, in Scotland.
The center received the documents from the British department by
mail, 44 days later on October 5. PCIJ also had no problem getting a
different set of requested information on the same project from the
National Economic and Development Authority.
Run-around game?
In this case, the problem may
have been more with the agency involved rather than the project.
PCIJ’s research intern Philip Ney recalls his dealings with Public
Works officials during the process: “[A] department secretary
referred me to the undersecretary, who referred me back to the
secretary, who told me to talk to the same undersecretary, who once
again told me that I needed to ask the secretary.”
But the Public Works department
was not the only agency that seemed to be unused to entertaining
requests for ODA project information, and wound up giving
disorganized responses and unclear instructions. For example, the
Metropolitan Waterworks and Sewerage System (MWSS) had already given
permission to pick up the executive summaries of the Angat Water
Utilization and Aqueduct Improvement Project and Laiban Dam Project
on September 21, 2007. But when PCIJ showed up at the MWSS doorstep
to get the papers, the decision had been reversed and the documents
withdrawn. Another letter was sent and more calls had to be made
before the documents were released—more than a month later.
Indeed, apparent disorganization
among the agencies approached by the center was one of the major
factors that led to more than half of the requests taking over 15
working days to process.
Agencies also often do not really
follow the provision on the law that states, “The reply must
contain the action taken on the request.” Besides the center, many
other groups that had tried to secure documents from state agencies
have experienced getting nothing more than an acknowledgment of the
receipt of their request.
Vincent Lazatin, Transparency and
Accountability Network executive director, pointed out that the
usual agency response letter saying “We’ve received your
letter,” or “We’re endorsing your request” does not
necessarily mean action was already taken, as stipulated by law.
“What they do is they endorse
you to a supervisor or the next higher official, but that’s not
replying,” said journalist Tess Bacalla, who had also worked as a
PCIJ fellow.
Helpful agencies
Still, the center did find some
agencies and employees helpful. Some officials, who believed in the
aid projects they oversaw, were eager for the media—and
ultimately, the public—to know more about these.
The Department of Social Welfare
and Development, for example, provided substantial documents for the
Kapit-Bisig Laban sa Kahirapan-Comprehensive Integrated Delivery of
Social Services project eight days after PCIJ sent its letter of
request. These included the contract agreement, loan agreement,
implementation status report, annual reports, and project review and
project appraisal documents with annexes that contained project cost
analysis, cost-benefit analysis, sensitivity analysis,
cost-effectiveness analysis, environmental and social safeguards and
other important details.
The Bases Conversion Development
Authority and the Pasig River Rehabilitation Commission were also
two of the most cooperative in providing data for the
Subic-Clark-Tarlac Expressway project and the Pasig River
Environmental Management and Rehabilitation Sector Development
Program, respectively. Both agencies took less than 15 working days
to approve the requests.
Lawyer Malaluan said any citizen
who is denied access to public information can take several actions
to assert his or her right. “You can file before the Supreme Court
a petition for mandamus or you can exhaust your administrative
remedies by going to the next higher office such as the Departments
and then the Office of the President,” Malaluan said. “Or you
may request assistance from the Office of the Ombudsman or file an
administrative case with the Civil Service Commission.”
He conceded, though, that these
remedies take a great deal of time.
In the meantime, Landingin
encouraged journalists to use all available avenues to get the right
information to the public at the right time. He said that on one
level, journalists must insist on their right to access information
and documents affecting public welfare and use of public funds. On
another, he said, the reality of red tape means journalists must
also nurture contacts and develop sources to increase their chances
of accessing information.
Simply put, transparency is an
important element of good governance. Access to Information Network
has thus proposed the “Freedom of Information Act of 2007,” a
law that will help mend the gaps in access to information and
provide more teeth to Republic Act 6713. The bill is currently set
for plenary hall debates in Congress.
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