The key is in the exemptions

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Only the corrupt officials of which we have a plentiful supply, and our super-secretive police and military who regard an informed public as a threat to national security and public order oppose, if only in secret, the public’s right to access government records. It’s in the Constitution in the first place, and has been upheld by Philippine jurisprudence so often those who object to its exercise would also be going against the law.

In this country of contradictions, this is its blessing and its curse. Like press freedom—to the exercise of which information access is crucial, and which even the clueless support because it’s politically correct—even those who have something to hide will swear commitment to it. Again like press freedom, those actually opposed to it because they fear exposure resort to extra-legal means to frustrate it.

Local warlords, gambling and drug syndicates and their hatchet men, and other interests in the communities choose not to bring to court those few reporters whom they don’t like for doing their jobs. Instead they try to frighten them into silence or to buy them off. Those who can’t be frightened or bought, our experience from 1986 onwards shows, they kill, in the process demonstrating that not all the protection the Constitution gives press freedom can shield journalists from the guns of assassins.

As far as access to official records goes, the Constitutional guarantee (“The right of the people to information on matters of public concern shall be recognized.”) has not prevented the withholding of information from either the media or the public either.

Every journalist who’s had to look for information from public agencies has a horror story to tell—or at least a frustrating and infuriating tale which usually includes being given the run around, being told outright that certain public records are “confidential,” or that the particular agency just does not release the information being sought.

Malice, ignorance of the law, or both are the usual reasons why even desk sergeants have been known to deny journalism students access to the police blotter—or investigative journalists access to the statements of assets and liabilities of government officials.

On the part of the public—who can be the direct beneficiaries of information on onerous government contracts and illegal government transactions without the need for the media to get the data—access is usually even more problematic.

Journalists can befriend sources in government agencies, say the boss’ receptionist or messenger, or a janitor who’s been keeping interesting records he’s found in the trash. They can cajole reluctant sources into revealing information, and even borrow and photocopy that interesting document a careless bureaucrat has left unprotected on his cluttered desk.

Journalists can threaten secretive officials, specially the small fry, with exposure on the front pages or the six o’clock news. And for all the secretiveness in many government agencies, there’s usually someone who either has a grudge, and/or willing to reveal information to prove his importance, especially to members of the media. For journalists, getting government information can be a tough, but not impossible effort. As the experience of investigative journalists demonstrates, with some effort they can usually get the documents they need to write that story on that government contract.
As the Philippine Center for Investigative Journalism’s Yvonne Chua says, the Philippines has a liberal information regime without an access to information act.

Getting the information an ordinary citizen needs, however, is something else. It is often well-nigh impossible, despite a Supreme Court ruling that everyone is entitled to government information that is of public interest. It’s not just because of the sloppiness of government records-keeping, but also because government functionaries can’t see why an ordinary Juan or Juana de la Cruz should be interested in a government official’s SAL, or a congressman’s membership in the board of directors of a construction company.

This problem suggests its own solution: an access to information law that will guarantee public access to government records similar to Thailand’s and Indonesia’s. Yes, it’s true. Although relative newcomers to democratic rule, both those countries have freedom of access to information acts (FOIA) , while the Philippines has none.

A bill to guarantee citizen access to government information (“Freedom of Access to Information Act of 2004”) is thus being re-introduced in the House of Representatives by Party-List representative Emmanuel Jose Villanueva. Drafted by the NGO Access to Information Network (ATIN) in consultation with media and citizens’ groups, and as part of a regional campaign supported by the London-based group “Article IX,” the bill is an improved version of a 1999 edition. It claims to provide speedy access to information to the public, including Filipino journalists—who, however, do not believe they’re in dire need of such an act.

Journalists’ groups have opposed earlier attempts to pass freedom of information acts. In the 1990s they opposed a version drafted by a senator (who should remain nameless) primarily because the bill contained so many exemptions to the right to access it would have served to limit rather than widen access to information. Many journalists also felt that defining what may be accessed and what can’t would create a situation in which the latter field could widen over time, compared to the present in which, despite—perhaps even because of—the absence of a FOIA, information can usually be obtained, albeit with difficulty.

The key issue in any FOIA are the exemptions. If there are too many, the resulting act becomes a hindrance to the public’s need for official information. If too few, which is ideal, the act is likely to be opposed by, among other key government institutions, the police and the military, and even government finance institutions. The consequence could be counter-productive: an act so watered-down as to be meaningless in practice, or even restrictive of the right to information.

The “improved” ATIN version does take care to limit and to define the exemptions, so as to prevent whimsical interpretation. Apparently to assuage the police and the military, it exempts from public and media access information “that has been declared by the President, through an Executive Order duly published in the Official Gazette or in a national newspaper of general circulation, to be confidential by reason of the serious damage to national security that in the President’s opinion will result from its disclosure…” The President’s declaration, however, is subject to review by the Supreme Court. The information is also subject to review by the agency concerned every five years, and will be considered declassified in fifteen.

In addition, the ATIN bill’s exemptions include information on internal and external defense and law enforcement, when disclosure would interfere with military operations and law enforcement; when the information would deprive a person the right to a fair trial; when it would disclose the identity of a confidential source; invade privacy; or endanger the life of law enforcement and military personnel and their families.

As carefully worded as the exemptions are, however, they still invite the fear that they can be so defined (What does “unduly interfere” mean? When does disclosure “deprive a person the right to a fair trial”?) as to deprive citizens information on a broad range of issues.

It’s a legitimate fear, because of the current context in which many government agencies, particularly the police and the military, would prefer to keep their transactions secret. As we have seen in the case of the killing of journalists, context is all.
Despite Constitutional protection and liberal jurisprudence guaranteeing press freedom, that freedom is nevertheless being undermined in many ways.

In the case of access to information, the question remains: will a law explicitly guaranteeing it work as intended, or will it end up restricting access instead, thanks to the bad faith and the culture of secrecy that in many government agencies protect corruption and inefficiency?

It’s difficult to tell in this country. We can only hope once the FOIA is passed that its implementation will not demonstrate that the public would have been better off without such a law—and that the result will be government transparency and its consequence, efficient and honest governance.

(Today/abs-cbnNEWS.com)

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Power

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Forbes Magazine explains its first-ever ranking of the world’s 100 most powerful women somewhat awkwardly. It describes its choices as women who’re “changing not only the societies where they work, but also the role of women in power,” and then says that it can no longer be said today that “women can gain power only by studiously working behind the scenes to forge consensus.”

Judging from the first ten women in its list, “changing…the societies where they work” doesn’t necessarily mean changing them for the better. Heading its list, after all, is US National Security Adviser Condoleeza Rice, who’s not your grandma’s token black, and who has indeed helped change the way her society works—but for the worse, say her critics. (more…)

2 thoughts on “Power

  1. Anonymous

    Great analysis, as usual. Why the hell isn’t Teodoro getting those awards lesser practitioners have been getting? Someone should nominate him for the Ramon Magsaysay Awards.

  2. TOMMY SMITH

    let me throw this at you, dont have much to do with article, Condoleeza Rice is pretty smart woman. shes made her mistakes. her critics, the dnc and probaly 95 percent of the black people in america. blacks will always call her the presidents puppet because shes republican. if she worked for a democrat president they would love her.

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