NINETEEN years have passed since then Congressman Oscar Orbos filed the “Freedom of Information Act of 1992”. Several other, more or less similar, bills were filed in the Senate and the House from 1998 until 2008, when then House Speaker Prospero Nograles filed House Bill 3732, or “An Act Implementing the Right of Access to Information on Matters of Public Concern Guaranteed Under Section 28, Article II and Section 7, Article III of the 1987 Constitution and for Other Purposes.”
In 2009 the Senate Committee on Public Information and Mass Media filed Senate Bill 3308, or “The Freedom of Information Act of 2009.” It passed the Senate on third and final reading on December 14, 2009. On January 20, 2010, the bicameral conference committee reconciled conflicting provisions in the Senate and House bills. The Senate approved the reconciled bill on February 1. The bill went to the House on February 3, but lack of quorum prevented its discussion. Congress then went into recess in preparation for the 2010 elections. Supposedly assured of passing on the last day of the 14th Congress on June 4, 2010, the bill died when the House adjourned without discussing it for lack of quorum. A number of administration congressmen, including some listed among House Bill 3732 sponsors, were not on the floor, but were seen in the House premises, leading to suspicions that the House leadership had orchestrated their absence to prevent passage of its own bill.
That version expands the list of information exempted from public disclosure, and on that basis alone, restricts rather than enhances public access to information on government matters.
Among the exceptions are matters of “national security,” which could be, and has indeed been, a convenient excuse for withholding information, the term being sufficiently broad for government agencies to invoke it to deny a vast range of information. The expansion of the Tanada bill’s exemption from disclosure of national defense matters into “national security” also bears the unmistakable fingerprints of the intelligence and military communities, whose traditions of secrecy and antipathy to human rights makes them the least qualified to evaluate, let alone provide inputs to, any freedom of information bill.
The public is also denied access to information on policy issues currently under discussion, the information being accessible only once the policy is in place, a provision patently antithetical to the principle of citizen participation in the making of state policy.
The Malacanang proposal also makes executive (Presidential) privilege absolute and enshrines it in law, in contrast to the Tanada bill, in which public interest could override that privilege.
The three members of the “independent” Information Commission it creates would be appointed by the President. To qualify, except for its chair, who has to be a lawyer, the appointees need only be 36 years old and natural-born citizens. No background or track record in human rights, right to information, or media advocacy or involvement is required.
And yet the Commission — the creation of which would make requests for government information more difficult by subjecting them to the scrutiny and requirements of one more layer of bureaucracy — would have, among other powers, those of ruling on the legitimacy of requests for information, holding any person in direct or indirect contempt, proposing legislation, and suggesting amendments to Philippine laws on access to information. Specially chilling is the Commission’s power to impose a temporary or permanent (!) ban on the disclosure of any information on government matters.
Overall, the Malacanang bill is premised on the exact opposite assumption as that which drives the global campaign for freedom of information: that the citizens in whom sovereignty resides in a democracy require information on government matters in behalf of the democratic imperative of participation in decision-making, and so they can exact accountability from those to whom they have delegated state power.
Maximum disclosure rather than minimum or non-disclosure is among the imperatives of an authentic Freedom of Information regime, which in turn requires — it isn’t rocket science or brain surgery — limiting exceptions only to those that are patently necessary on the basis of public interest, and whether the information can cause harm.
But by putting all sorts of barriers to citizen (and media) access to information and expanding the list of information exempt from public access, the Palace version presumes the need to keep as much of government activities, policies, deliberations, as limited and even as secret as possible rather than as transparent. It is based on the same culture of secrecy dominant in the Arroyo administration.
The culture of secrecy has developed in this country as a result of the vast corruption that, especially during the Arroyo regime, has metastasized throughout government and the rest of Philippine society. Among other purposes, an FOI act is meant to dismantle that culture in behalf of effective governance and the campaign to end corruption.
President Benigno Aquino III’s failure to even hint at the need for a Freedom of Information act in his 2011 State of the Nation Address, his non-inclusion of it in last year’s as well as this year’s legislative agenda, and most of all the emphasis on restrictions rather than access to information of the FOI bill his office has put together, reveal an aversion to the public right to information on government matters. It’s not his subalterns who’re making the passage of an FOI bill problematic, it’s Mr. Aquino himself.
Mr. Aquino’s prioritizing least an FOI bill, including the one he has had drafted, also indicates an inability to put together the strategies needed to combat the corruption he has pledged to end, public information being the most powerful instrument available to citizens in both exposing and preventing corruption. But between the lines of the Palace bill one can sense precisely the same claim to the “wang wang” entitlement — only we in government can tell you what you need to know — that Mr. Aquino inveighed against last July 25.
Is the public Mr. Aquino’s boss? Or is he his own?