Professional Documents
Culture Documents
march to
transparency:
BOARD OF TRUSTEES
Ambassador Albert del Rosario
was the Secretary of Foreign Affairs of the Philippines from 2011 to 2016. He also served as
Philippine Ambassador to the United States of America from 2001 to 2006.
Manuel V. Pangilinan
is CEO and managing director of First Pacific Company Limited. He is also the chairman of
MPIC, PLDT, Meralco, and Smart Communications, among others.
Edgardo G. Lacson
is an honorary chairman of the Philippine Chamber of Commerce and Industry (PCCI). He
was the former president of the Employers Confederation of the Philippines.
Ernest Z. Bower
is senior adviser for Southeast Asia at the Center for Strategic and International Studies
(CSIS). He is CEO of BowerGroupAsia (BGA), and a leading expert on Southeast Asia.
Introduction 1
Fostering Participation 2
Promoting Human Rights 3
Holding Governments Accountable 3
Leveling the Playing Field 4
Maximum Disclosure 11
Obligation to Publish 11
Promotion of Open Government 12
Limited Scope of Exceptions 14
Processes to Facilitate Access 15
Affordable Cost 17
Disclosure Takes Precedence 17
Protection of Whistleblowers 18
Conclusion 20
References 27
Acknowledgments
viii
The Long March to Transparency:
Institutionalizing FOI in the Philippines
FRANCISCO A. MAGNO, Ph.d
Fostering Participation
In newer democracies, FOI policies have become a major instrument for promoting
human rights. They provided an information window for human rights victims and
their families who suffered under authoritarian rule. In 2002, President Vicente Fox
of Mexico called for the declassification of the files on human rights abuses so that
families could find out what happened to their loved ones who disappeared. In the
United States, the National Security Archive processed thousands of information
requests on records pertaining to human rights abuses in Mexico, Peru, and Chile.
The data were then forwarded to aid in the work of the Truth Commissions in these
countries (Banisar 2006).
Most newly developed constitutions in countries that went through democratic
transitions include provisions on FOI as a basic human right. In the aftermath of
the dissolution of the Soviet Union, most Central and Eastern European countries
crafted laws concerning access to the files of the former secret police forces. In some
countries, these files were made available to individuals to see what is being held on
them. In other countries, the records of individuals who were in the previous secret
services were made public and these individuals were barred from serving in the
current government (Banisar 2006).
the culture of local governments. FOI is not just a matter of formal compliance with
the requirements of supplying public information, but a tool for building inclusive
institutions that empower citizens to use government data for social accountability
(Anand 2011).
The first FOI law was made in Sweden in 1766. The Freedom of the Press Act was
conceived by a parliament that wanted to gain access to information controlled by
the King. It would take almost two centuries before another right to information
law was passed. Finland, which used to be part of Sweden, enacted its version of the
policy in 1951. The United States passed its own access to information law in 1966.
Institutionalizing FOI in the Philippines 5
This was followed by legislation in France (1978), Australia (1982), New Zealand
(1982), Canada (1983), and Colombia (1985).
There are now 115 countries with FOI regimes, based on a list prepared by
www.freedominfo.org. While it has yet to pass an FOI law, the Philippines is
considered to have a nascent FOI regime. This is by virtue of Executive Order No.
2, which operationalizes for the executive branch the peoples constitutional right
to information and the states policies of full disclosure and transparency in public
service. It was signed by President Rodrigo Duterte on July 23, 2016. For the list of
countries with FOI regimes, see Table 1.
6 the long march to transparency
Institutionalizing FOI in the Philippines 7
The basis for FOI under international law was laid down in two landmark
documents: the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. The Universal Declaration of Human
Rights was adopted by the United Nations (UN) General Assembly in 1948. It is
recognized as the flagship statement of international human rights. Article 19 of
the declaration underscores the right to freedom of expression and information.
It states that everyone has the right to freedom of opinion and expression; this
right includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of frontiers.
The International Covenant on Civil and Political Rights, a legally-binding treaty,
was adopted by the UN General Assembly in 1966. This international covenant
guarantees the right to freedom of opinion and expression (Mendel 2008).
Guided by international law, many countries inked provisions that embed FOI in
their respective constitutions. There are already 59 nations in the world, including
the Philippines, where the right to information receives specific constitutional
recognition.
Sweden offers an interesting case. Its 1766 FOI law has constitutional status.
The policy contains comprehensive provisions on the right to information.
Many countries which transitioned to democracy have incorporated the right to
information in their fundamental law. These include Bulgaria (1991 Constitution,
Article 41), Romania (1991 Constitution, Article 31), Estonia (1992 Constitution,
Article 44), Lithuania (1992 Constitution, Article 25), Malawi (1994 Constitution,
Article 37), Poland (1997 Constitution, Article 61), South Africa (1996 Constitution,
Section 32) and Thailand (2007 Constitution, Section 56; Mendel 2008).
In the Philippines, the right to information had been recognized on paper as
early as the 1973 Constitution. Article 4 (6) indicates the right of the people to
information on matters of public concern shall be recognized. Access to official
records, and to documents and papers pertaining to official acts, transactions,
8 the long march to transparency
The passage of enabling FOI legislation will lead to the allocation of a budget for
mechanisms to respond to the demand for public records and will promote the
proactive disclosure of information. Around 95 countries across the globe have
existing FOI legislation. They are referred to by various names. The oldest is
Swedens Freedom of the Press Act of 1766. The United States has the Open Records
Laws. These sets of rules are also called the Sunshine Laws. Canada has the Access
to Information Act, which permits citizens to request information from federal
Institutionalizing FOI in the Philippines 9
agencies. On the other hand, Colombia has Law 57. This 1985 policy directs the
publication of official acts and documents. This works in tandem with Law 190
or the Anti-Corruption Act, which mandates government units to post all the
contracts and purchases in open areas on a monthly basis.
Even as the world surges to allow access to public data through legislation, the
deliberations for the passage of an FOI law in the Philippines proceed in a slow
march. It has been more than three decades since the first FOI bill was submitted
in Congress. In 1988, House Bill No. 498 was filed by Rep. Raul Roco. In 1993,
civil society groups were formed to campaign for FOI legislation. During the 11th
Congress, a right to information bill passed the third reading in the House of
Representatives in 2001. However, there was no counterpart bill in the Senate.
Despite being part of the priority legislative agenda of President Benigno
Simeon Aquino III, the FOI bill was not passed during the 16th Congress. The FOI
bill was approved in the Senate in March 2014. At the House of Representatives,
it was approved by the Committee on Public Information in November 2014 and
in the Committee of Appropriations in March 2015. Nevertheless, the bill was not
scheduled for plenary deliberations before the closing of the 16th Congress.
Several versions of the FOI bill were refiled in both the upper and lower chambers
of the 17th Congress. In June 2016, House Bill No. 334, entitled An Act to Ensure
Public Access to Official Records, Documents and any other Information of Public
Concern, was filed in the House of Representatives. In October 2016, the Senate
Committee on Public Information and Mass Media submitted Senate Bill No. 1208
or the Peoples Freedom of Information Act, which consolidates 14 other bills. This
will be taken up during the plenary debates in the Senate.
In parallel with the push to pass a law in Congress, Executive Order No. 2 was
issued on July 23, 2016, during the first month of the Duterte presidency. This
policy operationalizes the peoples constitutional right to information in the
executive branch of government. It provides that every Filipino shall have access to
information, official records, public records, and documents and papers pertaining
to official acts, transactions or decisions, as well as government research data used
as basis for policy development.
10 the long march to transparency
There are several features needed for establishing an effective FOI regime anchored
on international standards and best practice models. Eight elements are discussed
here: maximum disclosure, obligation to publish, promotion of open government,
limited scope of exceptions, processes to facilitate access, affordable cost, priority
for disclosure, and the protection of whistleblowers. The Philippines existing rules
and regulations will be examined based on these key elements.
Institutionalizing FOI in the Philippines 11
Maximum Disclosure
The principle of maximum disclosure emanates from the need to foster transparency
for a broad scope of official records and information sets. The scope of the right to
information covers a wide range of government bodies, as well as the individuals
who may claim the right. International NGOs, such as ARTICLE 19, take a robust
approach, where access to information is viewed as a human right, calling for the
definition of public bodies to focus on the type of service provided rather than
formal designations. This emanates from acknowledging that every legitimate
secrecy interest can be addressed through an appropriate regime of exceptions
(Mendel 2008).
As a key feature of the FOI, maximum disclosure means that all branches and
levels of government, including local governments, elected bodies, offices which
operate under a statutory mandate, nationalized industries and public corporations,
judicial entities, and private enterprises that carry out public functions, including
road maintenance and rail operations, are covered. Private institutions are included
if they hold information whose disclosure is likely to diminish the risk of harm
to key public interests, such as the environment and health. Inter-governmental
organizations are also subject to freedom of information regimes (Mendel 2008).
The existing FOI regime in the Philippines has limited coverage when seen
in the context of the maximum disclosure principle. Executive Order No. 2 only
covers government offices, departments and bureaus under the executive branch,
as well as public corporations and colleges. The executive order does not apply
to the legislature, judiciary, and even LGUs that are nonetheless encouraged to
observe the policy.
Obligation to Publish
An FOI regime does not stop with compelling public offices to respond to requests
for information from citizens. It should be able to oblige governments to publish
and disseminate major types of information even without a request (Mendel 2008).
For instance, the report of the UN Special Rapporteur stressed that FOI implies
that public agencies should extensively publish and disseminate documents of
12 the long march to transparency
FOI thrives on the promotion of open government. This entails confronting the
culture of secrecy that pervades public institutions. Intensive efforts are needed
to bring state officers to the side of transparency. The argument has to be made
that the road to transparency is not an additional burden but, rather, an essential
direction towards respecting the right to information.
In many places, a major barrier to getting information is the sad condition
in which data are stored. Public officials are either unaware or unable to locate
information under their custody. Weak record management impairs not only access
to information but also the effective delivery of public services (Mendel 2008).
In the Philippines, the promotion of open government is part of the FOI
program that was launched by the PCOO in November 2016. Each agency within
the executive branch was ordered to submit its FOI Manual to the Office of the
Institutionalizing FOI in the Philippines 13
Executive Secretary. The manual specifies the internal FOI guidelines and outlines
the roles and responsibilities of the following: (1) the personnel designated to
handle agency FOI requests; (2) the FOI champion; (3) the decision-makers; and
(4) the receiving officers. It includes provisions on the promotion of openness in
government, protection of privacy, remedies in case of denial, charging of fees, and
administrative liabilities. It also provides a comprehensive FOI process flow, list of
exceptions, and an FOI response template.
The publication of the Agency Information Inventory is mandated under the
FOI program. The inventory is a master list of all government information held
by an agency, containing the title, description, and file type of each information.
This list defines the scope and limitations of the types of information which can
be requested from an agency. Any information requested not included in the
agency inventory is considered a basis for denying the request. As of June 2017,
all 22 departments and 151 out of 222 national agencies have completed their FOI
manuals.
To promote open government, the PCOO created the eFOI portal (www.foi.gov.
ph) to enable citizens to send online requests for information. The portal facilitates
information sharing. Under the manual system, the person filing the request is the
only one who can check the data supplied by government. Through the eFOI portal,
the agency can post the requested information online. This will spare the agency
from repeating answers to similar requests. According to PCOO Assistant Secretary
Kristian Ablan, those who needed data from the government had previously relied
on tapping connections inside the office concerned. Now, any citizen can make
a request for information and be assured of a response. Nevertheless, not all the
agencies have signed up with the online facility (Salaverria 2017).
During the first six months of operation, about 50 percent of the requests
for information coursed through the eFOI Portal were denied. Interestingly, the
rejections were made not because confidential data were asked for, but because the
requests for information were lodged with the wrong government bodies. Citizen
knowledge of what outputs individual agencies have needs to be further improved.
There have also been concerns that with the implementation of the FOI policy,
government offices became less proactive in releasing information and are just
reacting to requests (Salaverria 2017).
14 the long march to transparency
FOI laws recognize a limited scope of exceptions. The Council of Europe offers a list
of reasons for constraining access to information. This appears in Principle IV, titled
Possible Limitations to Access to Official Documents. Member states may define
in the FOI legislation the particular exceptions to the right to official records that
are proportionate to the goal, in a democratic society, of protecting the following:
(1) national security, defense and international relations; (2) public safety; (3)
prevention, investigation and prosecution of criminal activities; (4) privacy and
other legitimate private interests; (5) commercial and other economic interests, be
they private or public; (6) the equality of parties concerning court proceedings;
(7) nature; (8) inspection, control and supervision by public authorities; (9)
the economic, monetary and exchange rate policies of the state; and (10) the
confidentiality of internal deliberations within or between public authorities. The
major test is to find out whether the harm to the exception is greater than the public
interest in getting the information (Mendel 2008).
In the Philippines, Executive Order No. 2 expressed that the FOI policy will be
pursued with certain exceptions, especially when the information requested belongs
to the exceptions enshrined in the Constitution, existing laws, or jurisprudence. The
Department of Justice (DOJ) and the Office of the Solicitor General (OSG) were
tasked to prepare a list of exceptions for submission to the Office of the President.
When the draft FOI manual came out on August 22, 2016, it included an inventory
of 166 exceptions proposed by the DOJ and the OSG. The list of exceptions, which
comprised 11 pages of the draft manual, was met by howls of protest from media
and civil society. Consequently, the list of exceptions was trimmed down to nine
on November 24, 2016, after the PCOO benchmarked with other countries that
clustered the list of exceptions into major categories.
On November 24, 2016, the Memorandum on the Inventory of Exceptions
to Executive Order No. 2 was released by the Office of the Executive Secretary.
The nine classes of exceptions include the following: (1) information covered by
executive privilege; (2) privileged information relating to national security, defense,
or international relations; (3) information concerning law enforcement and
protection of public and personal safety; (4) information deemed confidential for
the protection of privacy of persons and certain individuals such as minors, victims
of crimes, or the accused; (5) information, documents, or records known by reason
Institutionalizing FOI in the Philippines 15
public offices, aside from those in the list of exceptions. Addressing the demand
for transparency involves the design of clear guidelines for public agencies in
processing requests for information (Mendel 2008).
One of the key processes to facilitate access to information in the Philippines
is the requirement for each government agency under the executive branch to
produce its own FOI Manual. As stated in Section 8 of Executive Order No. 2,
every government office is directed to prepare its own Peoples FOI Manual which
shall include the following information: (1) the location and contact information
of the head, regional provincial and field offices, and other established places
where the public can submit requests to obtain information; (2) the person or
officer responsible for receiving requests for information; 3) the procedure for the
filing and processing of the request; (4) the standard forms for the submission of
requests and for the proper acknowledgment of such requests; (5) the process for
the disposition of requests; (6) the procedure for the administrative appeal of any
denial of request for access to information; and (7) the schedule of applicable fees.
A request to access information under Executive Order No. 2 starts with the
submission of a written request to the specific office holding the information. The
request shall contain the name and contact details of the requesting party, as well
as provide valid proof of authentication or authorization. It shall indicate the data
requested and the purpose of the request. The official receiving the request shall
assist the requesting parties, especially those with special needs. The request shall be
stamped by the government office, identifying the date and time of receipt and the
name, rank, title or position of the receiving public officer with the corresponding
signature, and a copy furnished to the requesting party. Each public office shall
establish a system to track the status of all requests for data. It is mandated to
respond to a request immediately and without exceeding 15 working days from the
receipt of the request.
Setting a time frame for replying to FOI requests is meant to ensure that the
government abides with the principle of facilitating access to information. In
this regard, government offices are encouraged to respond even before the end of
the 15-day mandatory period. For example, the Career Executive Service Board
promised to address FOI queries within 7 days, well in advance of the time limit
(Salaverria 2017).
Implementing FOI does not stop at identifying an officer that receives
requests and a key decision-maker that releases the information. For example,
Institutionalizing FOI in the Philippines 17
Affordable Cost
It is a major principle in FOI policy that disclosure takes precedence. The process
of legislating FOI should address how disclosure can be prioritized amid a range of
18 the long march to transparency
secrecy laws. Eventually, a commitment should be made to examine the laws that
bar the disclosure of information, with the aim of harmonizing them with the right
to information (Mendel 2008).
Section 5 of Executive Order No. 2 orders public officials to make their SALNs
available for scrutiny. In a request for the latest SALNs of cabinet officials submitted
to the Office of the President, the Malacaang Press Corps waited for a response
for more than one month. According to the Malacaang Records Office, the
delay in the release of the documents was due to the review process pursuant to
Section 10 of the Code of Conduct and Ethical Standards for Public Officials and
Employees. Interestingly, the Code states that all statements filed under the Code
of Conduct, including SALNs, shall be made available for copying after 10 working
days (Salaverria 2017).
In another case, the Board of Investments (BOI) had to be reminded that the
FOI policy does not prevent the agency from continuing its data dissemination
practices. Before the signing of Executive Order No. 2, the agency had been
providing certain data to foreigners who could be potential investors. The BOI
asked if it could still disclose data to foreigners since the FOI policy was only for
Filipino citizens. The PCOO replied that the agency should consider the FOI as a
tool to expand rather than constrict disclosure (Salaverria 2017).
Protection of Whistleblowers
Executive Order No. 2 has led to the creation of an FOI regime with its own set
of rules, norms and practices. However, it is confined to the executive branch of
government. It also lacks strong governance mechanisms and funding assistance.
This can be remedied through the passage of an FOI law. With a legislated FOI
regime, Congress can appropriate a bigger budget, as well as broaden the scope and
range of the programs implementation. The public will gain access to all relevant
government data if FOI is enacted into law.
The Right to Know, Right Now Coalition that has been in the thick of the fight
to push for an FOI bill in Congress for many years has found an ally in the PCOO.
The agency has joined the civil society coalition in public dialogues and multi-
stakeholder forums that provide updates on the implementation of FOI. The PCOO
believes that the FOI program would be more effective if it covers all branches of
government. At the same time, the Presidential Legislative Liaison Office indicated
that the Legislative-Executive Development Advisory Council (LEDAC) would
include the FOI bill in its list of priority measures for endorsement to Congress
(Salaverria 2017).
In the upper chamber, Senate Bill No. 1208 or the Peoples Freedom of Information
Act, which is a consolidation of several bills, hurdled committee deliberations in
October 2016. It will then be reported for plenary debates in the Senate. On the
other hand, the counterpart versions of the FOI bill submitted in the House of
Representatives will be scheduled for discussions at the committee level.
The Senate bill emphasizes that the FOI shall apply to all government agencies
in the executive, legislative and judicial branches, as well as constitutional bodies.
It shall cover offices at both the national government and local government levels.
The mandate to provide access to information shall include chartered institutions,
20 the long march to transparency
Conclusion
Despite the advances made in initiating an FOI program through Executive Order
No. 2 signed by President Duterte in 2016, a law is still needed to institutionalize the
right to information and appropriate funds for its implementation. The long march
to transparency inevitably leads to the doorsteps of Congress. Several measures
are needed to come up with a strong institutional design for FOI legislation in the
Philippines.
First, the FOI law should provide the general public with access to information
from all three branches of government. It should cover not only national offices,
but also LGUs. The mandatory disclosure of documents, as well as the steps for
accessing these documents, should be clearly specified in the law. All government
agencies are expected to adhere to a set of standards on the disclosure process.
The mandatory disclosure provision applied to all branches of government is
already incorporated in the current version of the FOI bill that is pending in the
Senate. Under Section 8 of Senate Bill No. 1208, the following national officials shall
disclose to the public their SALN yearly in their official website: (1) President; (2)
Vice President; (3) members of the cabinet; (4) members of Congress; (5) justices
of the Supreme Court; (6) members of Constitutional Commissions and other
constitutional offices; and (7) officers of the armed forces with general or flag rank.
This is in accordance with Article 11 (17) of the Philippine Constitution.
The Senate bill requires the agencies of all branches of government to put up on
their websites, a register of the following public interest transactions, documents
or records:
Fourth, the principle of open government should be reflected in the law. Section
19 of Senate Bill No. 1208 compels all government agencies to have compliant
websites within two years of the effectivity of the laws enactment. Under the
proposed law, the Department of Information and Communications Technology
(DICT) is authorized to monitor all government agency websites and provide
capacity-building programs. Government agencies are expected to keep abreast with
the best practices on information disclosure, records maintenance and archiving.
Capacity development is vital in addressing the human and physical infrastructure
requirements for establishing an effective FOI program. There is also a need to
place resources and itemize FOI-related expenditures in an annual budget.
A highly open government can enhance public value especially with the use
of new information and communications technology (Wirtz and Bikmeyer 2015).
The Philippine Statistics Authority launched the Open Data portal called OpenStat
(http://openstat.psa.gov.ph) in March 2017. The objective of this online platform is
24 the long march to transparency
to furnish the different statistical data collected by the government to the general
public. The uploaded datasets are compliant with open data standards. They
are machine-readable and available to the public at no cost. This effort seeks to
promote transparency through the proactive disclosure of government data and by
encouraging the citizens to help analyze statistical data.
Fifth, with FOI legislation, transparency portals like OpenStat will be given
stronger institutional support. These online tools can be promptly utilized by
researchers studying public performance and accountability. The large amounts of
data held by the State can be employed for evidence-based analysis (Savage and
Hyde 2014). In the FOI ecosystem, information intermediaries or infomediaries
can play an important bridging role on the demand-side of open government. They
can help citizens and civil society in utilizing and analyzing disclosed data to engage
in budget, revenue and performance monitoring, and eventually demand better
services from government. Open data can provide the informational resources to
assist local decision-making and governance processes. However, data alone does
not count. To be meaningful, it must be interpreted. This is not just a technical
matter. It is about building the communities who can decide and use these tools in
a purposive manner (Cornford 2013).
Sixth, the role of knowledge brokers and information intermediaries should
be acknowledged. In FOI implementation, individuals may rely on an advocate
to make an information request for them. Even in countries with well-established
disclosure laws, making such a request involves knowledge about the bureaucratic
routine by which FOI requests are processed, including the rules that govern
judgments on the release of information. It helps to be aware of how documents
are organized and stored within the bureaucracy (Roberts 2005). FOI is shaped by
a whole range of factors, from the mechanism within the law to the action of the
key groups who drive FOI, including the requesters, media, and the government
(Hazell and Worthy 2010).
FOI legislation is not sufficient to ensure access to information. In a pilot
project in Bangladesh, the introduction of information intermediaries proved to be
crucial in improving rural citizens access to information. With the presence of the
intermediaries, the number of FOI Act users rose significantly in the intervention
areas compared to the national average, with five times more women than men
being able to participate (Fattah 2016).
Institutionalizing FOI in the Philippines 25
26 the long march to transparency
Institutionalizing FOI in the Philippines 27
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28 the long march to transparency
ACKNOWLEDGMENTS
ADR Institute gratefully acknowledges all those who have extended their support,
cooperation, and commitment in the development of this project. This publication
would not have materialized without their help.
We would also like to thank Prof. Victor Andres Dindo Manhit, President of
the ADR Institute, for his leadership, vision, and guidance in making this endeavor
possible.
Last but not the least, we would like to thank the following for their hard work
and dedication, and for working tirelessly towards the completion of this project:
Deputy Executive Director for Research, Ms. Angelica Mangahas, and Senior
Research Associate, Ms. Weslene Uy, who both served as the editorial staff;
Our design consultant, Ms. Carol Manhit, for the publication lay-out and cover
design;
And the rest of the ADRi team headed by Executive Director, Atty. Katrina
Clemente-Lua, Deputy Executive Director for Programs, Ms. Ma. Claudette
Guevara, Program Associate, Ms. Vanesa Lee, and External Affairs and Social
Media Associate, Ms. Krystyna Dy.
ABOUT THE AUTHOR
He finished his B.A. and M.A. in Political Science from the University of the
Philippines, and Ph.D. in Political Science from the University of Hawaii. He was
the recipient of an Outstanding Young Scientist Award from the National Academy
of Science and Technology of the Philippines in 2000. The Webometrics Ranking of
2015 listed him in the Top 100 Scientists based in Philippine institutions.