i UNIVERSITY OF THE PHILIPPINES Bachelor of Arts in ...iskwiki.upd.edu.ph/images/5/54/Guinmapang,_Lois_Joy... · UNIVERSITY OF THE PHILIPPINES Bachelor of Arts in Journalism ... Primary

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UNIVERSITY OF THE PHILIPPINES

Bachelor of Arts in Journalism

Lois Joy G. Guinmapang

Ma. Zarina A. San Jose

The Press in a Democracy:

A Comparative Historical Analysis of the Non-Passage

of the Freedom of Information Act from 1992-2012

Thesis Adviser:

Professor Lucia P. Tangi

College of Mass Communication

University of the Philippines Diliman

Date of Submission

April 2013

Permission is given for the following people to access this thesis

Available for general public Yes

Available only after consultation with authors/thesis adviser No

Available only to those bound by confidentiality agreement No

Students’ signatures:

Signature of thesis adviser:

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The Press in a Democracy:

A Comparative Historical Analysis of the Non Passage

of the Freedom of Information Act from 1992-2012

by

Lois Joy G. Guinmapang

Ma. Zarina A. San Jose

has been accepted for

the degree of BACHELOR of ARTS in JOURNALISM

by

Professor Lucia P. Tangi

and approved for the

University of the Philippines College of Mass Communication

by

Dr. Rolando B. Tolentino

Dean, College of Mass Communication

iii

UNIVERSITY PERMISSION PAGE

We hereby grant the University of the Philippines non-exclusive worldwide, royalty-free

license to reproduce, publish and publicly distribute copies of this thesis or dissertation in

whatever form subject to the provisions of the UP IPR policy and any contractual

obligations, as well as more specific permission marking on the Title Page.

Specifically we grant the following rights to the University:

a) To upload a copy of the work in the theses database of the College of Mass

Communication Journalism department and in any other databases available on the public

internet;

b) To publish the work in the College of Mass Communication journal, both in print and

electronic or digital format and online; and

c) To give open access to above-mentioned work, thus allowing “fair use” of the work in

accordance with the provisions of the Intellectual Property Code of the Philippines

(Republic Act No. 8293), especially for teaching, scholarly, and research purposes.

Lois Joy Guzman Guinmapang Ma. Zarina Almeda San Jose

2009- 01097 2009-10528

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BIOGRAPHICAL DATA

PERSONAL DATA

Name Guinmapang, Lois Joy Guzman

Permanent Address 2335 A Callejon H, Cabo St., Gagalangin Tondo, Manila

Date of Birth 29 January 1993

Telephone Number (+63) 917 550 6243

E-mail Address [email protected]

EDUCATION

Primary Level Philippine Women’s University - Jose Abad Santos

Memorial School – Manila (PWU-JASMS Manila)

Secondary Level Manila Science High School (MSHS)

AFFILIATIONS Member, Interdependent Student-Centered Activism

Member, University of the Philippines Advertising Core

Public Relations Officer, State Varsity Christian

Fellowship – Diliman

WORK EXPERIENCE Intern, Rappler, April-June 2012

Intern, Storyline ANC, June-July 2012

ACHIEVEMENTS College Scholar, 1st and 2

nd Semesters, AY 2009-2010, 2

nd

Semester AY 2011-2012, 1st Semester, AY 2012-2013

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BIOGRAPHICAL DATA

PERSONAL DATA

Name San Jose, Ma. Zarina Almeda

Permanent Address Lot 2C Block 12 M. Consing St. BF Resort Village Las

Pinas

Date of Birth 9 January 1992

Telephone Number (+63) 917 807 0687

E-mail Address [email protected]

EDUCATION

Primary Level Second Honors, PAREF Woodrose School, Inc.

Secondary Level Second Honors, PAREF Woodrose School, Inc.

AFFILIATIONS Vice Chairperson for External Affairs, Union of Journalists

of the Philippines UP Diliman

Secretary General, Student Alliance for the Advancement

of Democratic Rights in UP

WORK EXPERIENCE Intern, Center for Media Freedom and Responsibility,

April-May 2012

ACHIEVEMENTS College Scholar 1st and 2

nd Semesters, AY 2009-2010,

2010-2011, 2011-2012, 1st Semester, 2012-2013

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ACKNOWLEDGEMENTS

First and foremost, we would like to thank our thesis adviser, Prof. Lucia P.

Tangi, for her presence and availability. Her input and suggestions have truly helped this

study take shape, and we will always be grateful for her undying patience.

We would also like to express our infinite gratitude to our parents, Mr. Peter and

Marcia Guinmapang, and Mr. Manny and Bernie San Jose for their ceaseless support. We

would never reach this milestone if not for your selflessness and understanding. Thank

you for strengthening us with your words of love and inspiration. Thank you for prodding

us to be better.

We would also like to thank our friends, Eunice, Dik, Trina, Dawn, Princess, Jiru,

Rich, Carla, Mich and Iyay. Thank you for being there in times of stress and relaxation,

and for being one with us in tears and in laughter. You have made our college lives truly

memorable.

To our organizations, thank you for also being another part of our support system,

for being one of the first people who helped us adjust to college life and stay sane in it.

To each and every one of our interviewees, we would like to commend you for

your dedication to the passage of this bill. Thank you for accommodating us in spite of

your busy schedules, and for sharing with us your insights and experiences. Your fight is

not over. And we, too, are hopeful of its near victory.

And lastly, we would like to thank our amazing God, in whom we live and move

and have our being, and by whose grace and strength we can do all things.

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DEDICATION

To the citizens of this country

whose right it is to know

what goes on inside the

government

that’s supposed to serve them.

And to the freedom fighters,

our struggle continues.

viii

ABSTRACT

Guinmapang, L. J. G. and San Jose, M. Z. A. (2013). The Press in a Democracy: A

Comparative Historical Analysis of the Non-Passage of the Freedom of Information Act

from 1992-2012. Unpublished Undergraduate Thesis, University of the Philippines

College of Mass Communication.

This study followed the journey of the Freedom of Information Bill in Philippine

legislature since it was first filed in 1992 until its “death” in February 2013. It found out

three main things: (1) a qualitative discussion on the bills that have been filed from 1992-

2012, (2) the “experiences” the FOI bill and its advocates have undergone, and (3) the

contributors and obstacles to the passage of the bill. The study revealed that a total of 44

bills have been filed each at the House of Representatives and the Senate from 1992-

2012. The bill had almost been passed during the 14th

congress but failed due to a lack of

quorum. As of this writing, the bill has also been considered “dead” for the 15th

congress.

Based on the interviews, the study also revealed that some of the factors that affect the

passage of the bill are the President’s support and the lack of public demand for it.

However, the biggest factor contributing to its non passage is resistance from the

legislators at the House themselves, that is, passing a bill that could possibly unseat them.

In the end, however, the freedom of information remains a right and a vital part in a

democracy where the main thrust is an informed citizenry.

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TABLE OF CONTENTS

Title Page i

Approval Sheet ii

University Permission Page iii

Biographical Data iv

Acknowledgements vi

Dedication vii

Abstract viii

Table of Contents ix

List of Tables xii

List of Figures xiii

I. INTRODUCTION 1

A. Background of the Study 1

B. Statement of the Problem and Objectives 6

C. Significance of the Study 7

II. REVIEW OF RELATED LITERATURE 8

A. Press in a Democracy 8

B. Press Freedom, Democracy and Freedom of Information 9

C. FOI: International Law 11

D. India: A Case Study 12

E. FOI: Philippine Context 15

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F. Access to Information in Southeast Asia 16

III. STUDY FRAMEWORK 19

A. Theoretical Level 19

B. Conceptual Level 22

C. Operational Level 24

D. Operational Definition of Terms 27

IV. METHODOLOGY 28

A. Research Design and Methods 28

B. Concepts and Indicators 29

C. Data Gathering 29

D. Data Analysis 32

E. Research Instrument 32

F. Scope and Limitations 33

V. RESULTS AND DISCUSSION 35

A. History of the FOI 50

B. Contributors and Obstacles to the Passage of the FOI 60

C. Comparison of Recent Bills 66

VI. SUMMARY AND RECOMMENDATIONS 85

A. Summary 85

xi

B. Recommendations 87

BIBLIOGRAPHY 90

APPENDICES 93

A. House Bill 3732

B. House Bill 6766

C. Senate Bill 3208

D. House Bill 53

E. Interview Transcript Representative Lorenzo Tanada III

F. Interview Transcript Attorney Nepomuceno Malaluan

G. Interview Transcript Senator Antonio Trillanes III

H. Interview Transcript Red Batario

I. Interview Transcript Ed Lingao

J. Interview Transcript Vincent Lazatin

xii

LIST OF TABLES

Number Title Page

1 Matrix of Bills from 1992-1995 35







8 Comparison of consolidated bills 67

9 Comparison of Tanada bill and Malacanang Version 82

xiii

LIST OF FIGURES

Number Title Page

1 Allocution Theory Model 20

2 Shannon and Weaver Model of Communication 22

3 Conceptual application Allocution Theory 23

4 Conceptual application of Shanon and Weaver model 24

5 Framework operational model 26

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I. INTRODUCTION

Tension arose at the House of Representatives in its last few days of session

before taking a recess for the May 2013 election campaign period. Many legislators, civil

society groups, media organizations and other individuals anticipated the tackling of a

bill that has been awaiting legislation for a little over three decades. But with seeming

disregard from President Benigno “Noynoy” Aquino III and most legislators, and despite

numerous campaigns pushing for its passage, the Freedom of Information (FOI) bill is

back to square one.

A. Background of the Study

1. Importance and Need for an FOI Bill

In recent years, the Philippines has been hailed among the most corrupt countries

in the Asia; gaining top ranking with a score of 9.4 out of 10 (0 being the least corrupt

and 10 the most) in a 2007 survey among foreign investors conducted by the Political &

Economic Risk Consultancy (PERC). In 2011, the country’s rate dipped to an 8.9, poorer

that 2010’s score of 8.25. While there has been a drastic change in the figures from 2007,

it is safe to say that the country still suffers from widespread fraudulence.

President Aquino’s 2010 presidential campaign banked on the slogan “Kung

walang corrupt, walang mahirap” and has promised to push for transparency and

government accountability as a means to end corruption. But after three years, the

president’s promise to support the passage of the FOI bill has failed to be concretized into

actions.

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Freedom of information is a key component of a true democracy and is

guaranteed by the Philippine Constitution under the Bill of Rights, Article III Section 7

which states:

Sec. 7. 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, or decisions, as well as to

government research data used as basis for policy development, shall be

afforded the citizen, subject to such limitations as may be provided by law.

This right to information is also recognized in international law. Article 19 of the

Universal of Declaration of Human Rights (UNDHR), adopted in 1948, acknowledges

that:

Everyone has the right to freedom of opinion and expression; this right

includes the right to hold opinions without interference and to seek, receive

and impart information and ideas through any media and regardless of

frontiers.

Meanwhile, the International Covenant on Civil and Political Rights (ICCPR),

signed by over 150 countries including the Philippines, also included provisions similar

to the UNDHR. According to Article 19 of ICCPR:

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1. Everyone shall have the right to freedom of opinion.

2. Everyone shall have the right to freedom of expression; this right shall

include freedom to seek, receive and impart information and ideas of

all kinds, regardless of frontiers, either orally, in writing or in print, in

the form of art or through any other media of his choice.

Freedom of information is a vital component in the workings of a free press which

in turn is a necessary condition for an informed citizenry. Citizens can only exercise their

rights fully or participate in decision making processes if they have access to reliable

information. This is so democracy can be more enhanced by people who engage with

their government institutions and voice out opinions based on facts and evidence. In a

democratic state, freedom of information allows citizens to remain in control of the

functions of the government composed of officials whom they themselves elected into

office.

“They would get to know what’s happening inside the bureaucracy,” said Senator

Antonio Trillanes IV, one of the authors of the consolidated FOI bill in the Senate.

“Being voters, they have that right to demand certain information and make the seating

administration more responsible and accountable for their actions (A. Trillanes, personal

communication, January 21, 2013).”

Quezon province fourth district representative Lorenzo Tanada III, one of the

“FOI champions” in the 15th

congress, added that, “as part of good governance [citizens]

help the government perform its duty by getting the information [they] need. [They] are

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able to monitor if the government is using their resources correctly or not (L. Tanada,

personal communication, December 10, 2012).”

As there is no current law providing mechanics for the compulsory duty of offices

to disclose transactions of public demand, having a bill that would guarantee this freedom

of information becomes a necessity in order to address concerns such as the lack of a

definite and speedy procedure as well as a definite scope for the access to information

and the penalties for violating such.

In a manifesto, the Bantay FOI! Sulong FOI! Network said there is a need for a

Freedom of Information law “to institutionalize transparency as the mandatory norm,

rather than a discretionary matter, for all elective and appointive officials, across all

branches of government.”

Attorney Nepomuceno Malaluan, convenor of Right to Know, Right Now

Movement told Transparencyreporting.net that “passage of the bill will give the current

government credibility and (moral) high ground in its anti-corruption drive,” adding that

“in contrast, failure to pass the bill exposes its anti-corruption stance as mere rhetoric; it

betrays the trust that the people gave it in the last elections.”

It is claimed that Representative Oscar Orbos filed the first Freedom of

Information Act in 1992. Two decades have passed with more than twenty bills filed in

Congress not being granted approval. The bill moved farthest during the 14th Congress

when it was approved by the bicameral conference committee, ratified by Senate but

killed in the House of Representatives.

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According to Toby Macintosh of Freedominfo.org, the number of countries that

have laws on FOI vary depending on the definition and stages on enactment. All things

considered, Macintosh says the safest generalization would be around 90 countries.

2. Sweden and the first FOI Law

Sweden passed the first Freedom of Information Law called the Freedom of the

Press Act in 1766 and introduced the principle of open government or

Offtenlighetsgrundsatsen (Larsen and Walby, 2012).

According to the Act, everyone is entitled to gain access to “official documents”

which may be in any form like text, video, soundclip, etc. However not all documents of

public authority are considered “official.” There are “secret documents” specified by law.

The Act states the following allowable restriction of information regarding:

“1. the security of the Realm or its relations with another state or an

international organisation;

2. the central fiscal, monetary or currency policy of the Realm;

3. the inspection, control or other supervisory activities of a public

authority;

4. the interest of preventing or prosecuting crime;

5. the economic interest of the public institutions;

6. the protection of the personal or economic circumstances of private

subjects;

7. the preservation of animal or plant species.”

(Sweden Ministry of Justice, 2009)

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But a more comprehensive list of exempted documents was made in the

country’s 1980 Secrecy Act (Basinar, 2006). It was further updated to the Publicity and

Secrecy Act of 2009 which details what kind of information government agencies can

keep secret, what type of document, under what circumstances and towards whom

(University College London, n.d.).

Manninem (2006) said the Swedish Freedom of the Press Act is conceived as the

“prerequisite” of the freedom of expression. The Act has gone through several

developments from its formulation and implementation and has now been conceived as

the “cornerstone” for the worldwide struggle for the freedom of information. Manninem

adds that the freedom of information is also seen as the prerequisite of freedom of

expression and that it will only be a “matter of time” because it will be acknowledged as

an “integral part” of human rights.

B. Statement of the Problem

What has the freedom of information bill undergone since it was first filed in 1992?

C. Objectives

1. To trace the history of the FOI bill since it was first introduced in 1992;

2. To find out the various experiences that the FOI bill went through under

various administrations; and

3. To identify what factors have led to the non passage of the bill.

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D. Significance of the Study

Being enshrined into constitution, numerous groups have sought the passage of an

FOI act for public accountability and the legitimacy of democratically elected

governments. President Aquino himself mentioned during his 2010 campaign that he

would support public access to information, yet aside from the Palace version of the bill

which was drafted February this year, the public has yet to hear about further legislative

measures which concern it.

By doing a historical analysis, the researchers intend to provide more depth to

previous knowledge on the FOI through a careful and detailed comparison of the

different versions filed from 1992-2012, from its proponents to its sanctions. The study

is set on identifying how and why the bills have been hindered from being enacted by

means of analyzing the events and legislative processes the different versions of the bill

have gone through in the course of history.

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II. REVIEW OF RELATED LITERATURE

In all societies applying any type of political or economic system, the press has

always been seen as a means of providing information to the citizens. Whether it is used

for propaganda to advance certain political ideas or as a tool to check on the government,

the main goal of the press is to be a catalyst of information.

A. Press in a democracy

The democratic framework which allows the citizenry to question and check

government leadership has made the press assume the role of a watchdog over the

exercise of power. In order to advance public interests, the press must take that

adversarial position towards the government, viewing the people in them as “enemies”

who must be watched “with distrust” (De Jesus, 1996, p. 27). The press must become the

“sentinel of the people’s rights and freedom,” making sure that the government does not

misuse or overstep its powers (Feliciano, 1968, p. 173).

Serving as a watchdog helps towards the improvement of government

Media serves as a cornerstone for an effective democracy because it presents

relevant information to the public and becomes a medium for different opinions. The

purpose of the press is to provide news and information that will help the citizens engage

ideas with one another, and express their preferences and problems to the people who

govern them (De Jesus, 2008, p. 9).

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Another of the enduring clichés to describe the press is that it is the “Fourth

Estate,” to serve as a monitor of government, a function that is supposedly derived from

its role as a watchdog.

In the classical, British, sense, this referred to the press watching over the three

other estates in Parliament (the Lords Temporal, the Lords Spiritual and the Commons).

The concept assumed that the press was free to perform its task because it was supposed

to be free from government regulation and other constraints.

Thus, the capacity of the press to perform its function as the Fourth Estate, which

in present conditions pertain to the executive, legislative and judiciary branches of

government, is premised on how free it is (Teodoro, n.d.).

And the level of freedom which the press enjoys, in turn directly affect the quality

and quantity of information it produces, which then determines how effective it actually

is for a democratic society.

B. Press freedom, democracy and freedom of information

Freedom of expression is a right guaranteed by numerous policies both

internationally and locally.

According to veteran journalist Sheila Coronel (2001), “a free press provides a

steady stream of information on corruption, the abuse of power and assorted forms of

malfeasance.” Information empowers not just the press but also the citizens because it

allows them to challenge government policy and denounce official abuse.

The value of freedom of speech and the exchange of information lies in the

creation of an environment that is rich in perspectives and ideas (Petaja, 2009, p. 32). The

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social responsibility theory also holds that freedom of expression is an individual’s means

of perpetuating himself. It is also the source of society’s intelligence, “the seed from

which progress springs” (Petersen, 1956, p. 102).

Thus, the public has a right of access to information, a basic right to be informed

and it is the duty of the press to make this happen. But the government is also tasked not

just of allowing this right but also actively promoting it.

The Commission of Freedom of the Press (or the “Hutchins Commission”) states

that,

“If the freedom of the press is to achieve reality, government must set

limits on its capacity to interfere with, regulate or suppress the voices of

the press or to manipulate the data on which public judgment is formed.

Government must set the limits on itself, not merely because freedom of

expression is a reflection of important interests of the community, but

also because it is a moral right. It is a moral right because it has an

aspect of duty about it (Petersen, 1956, p. 102).”

The right of freedom to information is a necessary aspect of participatory

democracy. People cannot assert their rights if they don’t know what these are.

Governments cannot be held accountable if the citizens are unaware of the actions of the

people and institutions who lead them (Coronel, 2001, p. 5)

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Venkat Iyer (2012, pp.6-16) sees a number of “desirable objectives” in recognizing

the freedom of information (FOI):

1. Helps to make the government be accountable to the people being governed

2. By facilitating the acquisition of knowledge, it encourages self fulfilment

3. Acts as a weapon in the fight against corruption and base of power by state

functionaries

4. Contributes to improving the quality of official decision making

5. Enhances the participatory nature of democracy

6. Goes some way in redressing the inherent balance in power between the citizen

and the state

7. Strengthens the hand of the individual in his dealings with government

Thus, the main beneficiaries of having an FOI law is always the public because it is

able to enhance their capacity to monitor wrongdoing and eventually enhance the

transparency in governance to which the state is supposedly committed (Teodoro, n.d.).

C. FOI: International Law

The first FOI was passed by the Swedish parliament dubbed “His Majesty’s

Gracious Ordinance Relating to Freedom of Writing and of the Press” of 1766.

Fast forward to 1945, closely after the World War II, the United Nations was

formed to replace the defunct League of Nations. This new organization aimed to

promote and maintain healthy international relations and to uphold the people’s rights.

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On December 10, 1948, Article 19 of the United Declaration of Human Rights validated

that freedom of information is a fundamental human right.

Affirmed by this assertion, a global revolution on the number of laws upholding

the right to information began to gain ground. This, according to FOI advocate Tony

Mendel, is not only the effect of international policy, but also an offshoot from the

skyrocketing advances of information technology which “changed the whole way

societies relate to and use information, and which have, broadly, made the right to

information more important to citizens (Mendel, 2008, p. 4).”

Roger Vleugels’s Overview of All FOI Laws states that as of 2011, there are 88

national FOIAs, 175 sub-national FOIAs, and 3 international FOIAs. Countries in the A1

list, or the ones that have enacted FOI, are not only first-world countries such as the

United States, New Zealand, South Korea, and Japan, but also developing countries such

as India, Chile, and Jamaica. This means that the passage of a FOI is not limited to

whether or not a country is industrialized or economically capable. Newly democratic

countries such as Indonesia and Ethiopia have also adapted an FOIA. As for the

Philippines, the country is included in the overview’s B1 list, which enumerates those

that are “more or less close to an FOIA.”

D. India: A Case Study

One of the countries that has recently passed and implemented a Freedom of

Information Act is India. Local FOI author Rep. Erin Tanada rated the bill an 8/10 in

terms of effectiveness, saying the outcomes of India’s legislation have been significant in

the country’s move toward transparency.

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Before the bill was even passed, electoral candidates in India were already

required “to submit affidavits containing their financial and criminal antecedents while

filing nominations” (Daruwala and Nayak, 2007) as the Elections Commission publishes

the information on its website.

In 2002, India’s Supreme Court ruled that the Election Commission of India

collect these affidavits and publicize them. This ruling was in response to a public

interest litigation case filed by the Association for Democratic Reforms on the same year.

Political parties rallied together and even got the Union Government to pass an ordinance

that nullified the court’s order. However in 2003, the court struck the ordinance down

stating that it violated the voter’s fundamental right to information (Daruwala and Nayak,

2007).

In 2005, India’s freedom of information bill, dubbed the Right to Information

Act (RTIA) of 2005, was put into action. According to Prof. Alasdair Roberts who

published a paper on the RTIA’s first four years of performance, citizens have been

enthusiastic about the law, actively making use of it as evidenced by two million requests

filed in its first two and a half years.

“Most of those requests are directed to offices of state and local

government. Many requests are intended to prod officials to deliver

promised services and benefits—such as rationed food, backpay and

pensions, roads and other public works, or teachers for primary schools.

Local action groups are learning how to integrate the law into their

campaigns against corruption. In one extraordinary case, non-

14

governmental groups in Orissa used the RTIA to show that official and

businessmen had stolen four million kilograms of rice intended for

distribution to the poor (Roberts, 2010).”

India’s RTIA is a decentralized law, being implemented in more than thirty five

state and territorial governments within the country. Much is still to be improved on as

implementation is uneven, varying per state, yet, this unevenness presents opportunities

for these bodies to innovate (Roberts, 2010). One innovation is the Jaankari call center,

which was undertaken by the state government of Bihar in partnership with a non-

governmental organization, Parivartan. This call center allows individuals to make RTI

requests through a single toll-free number. Service is provided in four languages. The

application fee is charged to the caller's phone bill, and a reply is sent directly from the

PIO. (Centre for Good Governance and PriceWaterhouseCoopers as cited in Roberts,

2010).

Aside from the innovations in implementation, the RTIA can be considered more

advanced than other FOIAs in terms of provisions. According to Aruna Roy of The

Guardian, the United Kingdom should learn from RTIA, as it is has greater control in

terms of penalties for non-compliance in supplying information. If an official fails to give

or delays information, a fine of 250 rupees would be collected per day.

The RTIA also has more ground in getting information from private companies. It

recognizes that transactions and deals are not carried out by government alone, but with

the assistance and funding of private entities and non-governmental bodies. In effect,

“the RTIA extends to non-governmental organizations that are ‘substantially financed,

15

directly or indirectly’ by government... No other FOIA-style law has a similar rule”

(Roberts, 2010).

E. FOI: Philippine Context

Now, the pressing need for an FOIA in the Philippines is making headway into

mainstream consciousness as a greater chunk of the population clamours for a clean,

transparent, and accountable government. In May 2012, the most powerful man in the

judiciary, former Chief Justice Renato Corona, was impeached due to inaccuracies in his

filed Statements of Assets, Liabilities, and Net Worth (SALN). On May 29, 2012, he was

convicted by a 20-3 vote in the Senate.

Ateneo School of Government Dean Tony La Viña writes that the most critical

lesson from the impeachment and conviction of Renato Corona is that the Philippines

needs to pass a Freedom of Information Act as soon as possible.

“The fruits of the impeachment process will be best preserved if the

Filipino people can help create a culture of accountability and trust

between the leader and the led. FOI is a powerful tool to achieve that, to

pre-empt corruption by improving deterrence and enhancing citizen

participation in governance.

The approach also cultivates the healthy leader-led relationship so

essential to public support and trust in government. With the

impeachment of Renato Corona, we have shown the viability of

16

accountability from above. We, the Filipino people, must now complete

the picture, and provide accountability from below. From penalizing

officials, we must now help them make Philippine governance and

accountability work (La Viña, 2012).”

In actuality, findings from the Philippine Center for Investigative Journalism

(PCIJ) state that when asked for the most basic documents such as records on health,

education, public safety, business, SALNs, and civil registry and property, Local

Government Units (LGUs) of the National Capital Region are slow to address requests,

having a tendency to neglect deadlines determined by regulation. The PCIJ noticed that

the referral system in between offices unnecessarily hinders the process of attaining

information.

According to the PCIJ, “the apparent inability of majority of Metro Manila local

governments to respond quickly and fully to citizen requests for asset disclosure records

of local officials, as well as documents on education, health, public safety and other

essential services may well be a reflection of the Aquino administration’s own dithering

over an FOI.”

F. Access to Information in Southeast Asia

Back in 2001, the PCIJ published its study in a book entitled “The Right to

Know: Access to Information in Southeast Asia.” The study examined the state of media

and information access in eight countries in Southeast Asia (SEA) through a cross

country survey that ranked the countries according to their “openness” in releasing

17

information to the public. The study found out that Philippines and Thailand were the

most transparent countries at the time while Burma and Vietnam were the least

transparent.

The Philippines, Thailand and Indonesia were classified as “democracies”

wherein information and communications technology have helped in ousting “unpopular”

(that is, dictatorial) regimes. Along with the fall of dictatorships came the

“institutionalization of democracy” through new constitutions that guaranteed a wide

range of freedoms, including those of information and expression. Further, the study

claimed that the main concern of journalists and citizens in the Philippines and in

Thailand are “refining procedures for information access.”

Meanwhile, Cambodia, Malaysia and Singapore were described as “semi

democracies” because their governments imposed laws containing harsh penalties on

publication or airing of anything “that may be construed as inciting to hatred, disaffection

or violence against the government.”

Burma and Vietnam were considered the least transparent among the eight SEA

countries in the study. The PCIJ said the lack of information access is rooted in a

“general lack of freedom in society,” where Vietnam was a socialist state and Burma was

under military rule.

The PCIJ concluded that the “struggle for freedom of information cannot be

taken separately from the struggle for democracy.” The most significant “openings” in

information access were a result of the citizens’ involvement in asserting democratic

movements.

18

Further, PCIJ noted that liberal information access “is not the panacea for social

ills.” Access to information does not always guarantee the promotion of democracy and

the advancement of social equity. There is a need to involve all sectors to use it properly.

Information serves as a catalyst that makes change possible.

Most literature related to the FOI discussed its importance to the workings of a

free press and a democracy. The review of related literature showed the principles in

which the freedom of information is built and how it should be used. The researchers

found no study tackling a detailed history of why the FOI bill has not been passed in the

Philippines. The researchers hope to contribute to the passage of the FOI bill by giving

knowledge on its legislative history from where the legislators and other stakeholders

may learn.

19

III. FRAMEWORK

A. Theoretical

The researchers agreed on certain assumptions in order to choose the appropriate

theories for the study. However, these were also mainly based from the Social

Responsibility Theory. Theodore Peterson (1956) named six functions of the press under

it:

Servicing the political system by providing information, discussion and debate on

public affairs

Enlightening the public so as to make it capable of self government

Safeguarding the rights of the individual by serving as a watchdog against

government

Servicing the economic system primarily by bringing together the buyers and

sellers of goods and services through the medium of advertising

Providing entertainment

Maintaining its own financial self sufficiency so as to be free from the pressures

of self interests

In a democratic system like the Philippines, the first three functions, especially that of

serving as a “watchdog,” are of utmost importance.

Added to these, the researchers have also decided to include another assumption not

part of the social responsibility theory- the assumption that the government does withhold

information from the public for many reasons.

20

1. Allocution theory

McQuail (2002) defines “allocution” as the information flow from a “service center”

(C) to an individual consumer (i). It is assumed that the service center has an unlimited

amount of information and only he decides what part of the “information stock” will be

distributed to the participating consumers.

According to him, this kind of setup “resembles that of a slave-master relationship.”

Because the master owns more than the slave, C becomes the “central leader” and i, no

matter how many they are, are the individual followers. The allocution pattern is only a

one way form of communication thus only the C has control of the information and the

i’s are merely receivers.

Figure 1. Allocution Theory Model

21

2. Shannon and Weaver Model of Communication

According to this model, a message begins from an information source which is

transmitted to a receiver. But before that message is received, it must go through “noise”

before it is conveyed to its destination.

The following are the factors Shannon and Weaver considered in their model (Dyer,

et al., n.d.):

Sender- The source of the information, where the message comes from. The

source sets the whole model into action.

Encoder- The transmitter which converts the message into signals.

Channel- The means by which the message is transmitted, be it verbal, written,

electronic, etc.

Noise- It is the interference or distortion that changes the original message;

anything that can misconstrue what was originally sent from the source.

Decoder- The interpreter which converts the message into one that the receiver

understands.

Receiver- The receiver takes in the message the source has sent out. Once the

message has been received, the process has ended.

Feedback- Feedback relates to the source whether their message has been

received or if it has been interpreted accurately.

22

Figure 2. Shannon and Weaver Model of Communication

B. Conceptual

In allocution, both the government and the media are “service centers” in their

own right as they are both gatekeepers of “information stock.” However, since this study

centers on government disclosure, the researchers opted to focus more on their side of

gatekeeping as opposed to the media’s.

23

Figure 3. Conceptual application Allocution theory

The government has complete control over the depth of information it chooses to

release, including what the content would be, when it would be published, and how that

content would be presented. In an ideal situation and as recognized by the social

responsibility theory, this information from the government should be made directly

available to the general public without passing through any other channel.

For a more comprehensive picture of the study, the researchers chose to slightly

modify Shannon and Weaver’s Communication Model. In this model, the government is

the sender, and their public information offices, as well as transcripts, records, files,

archives and press releases would be the encoder and the encoded, respectively. Note that

in the encoding process, noise can already take place.

24

Figure 4. Conceptual application Shannon and Weaver model

Instead of having the channel go before the decoder as in the original model, the

researchers deemed it fit to switch their positions in the diagram. The decoders of the

information would be the newsmakers who interpret the encoded data from the

government who would then trasmit the simplified message through print or electronic

media. This process, again, is not safe from noise. Information distortion is a possibility.

Using print or electronic media as channels, the message would reach the people and

would then generate positive, negative, or neutral feedback.

C. Operational

Using the modified version of Shannon and Weaver’s Model of Communication and

the allocution theory, the researchers would like to expound on the semi-linear process of

how the government chooses to keep and release information in the public sphere.

The study would work around the assumption that, in compliance to the

parameters of democracy, as previously mentioned, the government is in itself a “service

center” - one with a duty to its people to disclose sufficient records of their hearings,

25

dealings, and transactions without interfering with national security. It is helpful to note

that whatever the government releases has already been filtered, and in essence, should

not be self-destructive. This filtered information, though already made available to the

public, would be picked up by media outfits for further interpretation, and would again be

released to the public. It is through the public’s feedback, or their dealings with the

government, that they reflect the quality of information that has been given to them.

In line with this, an FOI act would ensure that the information they receive

through the media is attuned to actual government data, and would encourage them to be

more participative in the dealings of this institution. An FOI act would allow the general

public to check the facts for themselves, commend laudable government projects, and

condemn political dishonesty, as it would give the media additional credibility, and

would allow them to report the news faster, clearer, and more accurately.

26

Figure 5. Framework Operational Model

27

D. Operational definition of terms

1. channel- media (print or electronic)

2. Congress- legislative branch of the government

3. decoder- news organizations

4. encoder- government public offices, transcripts, records

5. freedom of information- exercise of one’s right to seek and get information

from the government

6. House of Representatives- part of the legislative branch composed of district

representatives and party list representatives

7. information- any knowledge, record, document, photographs, data, film and

sound material, electronic data stored or archived in whatever form or format

which are made, received or kept in any government agency

8. information source, service center- government

9. noise- conflict of interests from both media and the government (affiliations,

personal biases, editorial policies)

10. receiver, individual consumers- citizens, general public

11. Senate- another part of the legislative branch composed of nationally elected

officials

28

IV. METHODOLOGY

A. Research Design

The study is historical and comparative. It is qualitative in nature and it aims to

answer why the Freedom of Information bill, despite its ten-year evolution, still has not

managed to make it past the walls of Congress.

1. Paper Trail

Researchers will be spending most of their time at the records department of the

House of Representatives and the Senate collating all the FOI bills that have been filed

since 1992. These bills are the study’s primary sources of information. The researchers

will then compare the similarities and differences between the bills.

Aside from these, the researchers will also be gathering transcripts of the

committee hearings wherein the bills were tackled in Senate and in the House of

Representatives to see the progress and development of these bills.

The thesis will also involve doing archival newspaper research to supplement the

interviews and the other materials that will be gathered from the House and the Senate.

The researchers have chosen to only consult one newspaper, the Philippine Daily

Inquirer, due to lack of time and manpower to be able to check others.

2. People Trail

The researchers will be conducting interviews with the bills’ principal author/s

and the other legislators who were involved with the bill at a certain time. These will be

29

in order that the researchers may gain a wider perspective on the bills and know the

circumstances surrounding them, including what hindered their passage.

The researchers will also be approaching the different stakeholders of the bill.

These include the media, non-governmental organizations (NGOs) and other private

organizations involved in pushing for the passage of the bill. Their insights and analyses

will be able to help the researchers fulfill the objectives of the study.

B. Concepts and Indicators

This study would trace the path undergone by the different versions of the

Freedom of Information Bill during the last decade. Working around the fundamental

concept of freedom of information in a democracy, the indicators would be defined by

how each version of the bill measures up to this given ideal in terms of its declared

sanctions and exemptions, how far it has gone throughout the legislative process, and

how and why it has been junked in relation to its circumstances.

C. Data Gathering

Because of the historical, qualitative nature of this research, the researchers will

be getting most of their information from the records department of the HR and the

Senate, news articles, and through focus interviews of personalities who are involved in

the passage of the bill.

30

The list of interviewees include:

1. Red Batario

Executive Director, Center for Community Development and Journalism

(CCJD)

CCJD was one of the organizations which formed part of the very first

coalition of organizations forwarding the cause for a FOI bill.

Interviewed February 12, 2013 at Tomas Morato Quezon city

2. Vincent Lazatin

Director, Transparency and Accountability Network (TAN)

Along with CCJD, TAN also belonged to the first coalition of organizations

for the passage of a FOI law.

Interviewed March 5, 2013 at Katipunan Quezon city

3. Ed Lingao

Multimedia Director, Philippine Center for Investigative Journalism

PCIJ is one of the organizations that have been most active in the

campaign for the passage of an FOI bill. Along with TAN and CCJD, it is also

one of the earliest members of the first coalition for the FOI.

Interviewed February 22, 2013 at Tomas Morato Quezon city

31

4. Attorney Nepomuceno Malaluan

Secretary, Access to Economic Reforms

Convenor, Right to Know, Right Now! Coalition

Atty. Malaluan was one of the pioneer individuals who decided to form a

coalition (then the Access to Information Network) pushing for the legislation of a

bill to guarantee freedom of information and its passage.

Interviewed December 13, 2012 at West Avenue Quezon city

5. Representative Lorenzo Tanada III

Representative, 4th

District, Quezon province

Deputy Speaker, House of Representatives (15th

congress)

Rep. Tanada was known to be one of the legislative “champions” in

helping pass a FOI bill, especially during the 15th

congress when he served as the

“spokesperson” of alliances and other organizations who wished for a law on

access to information.

Interviewed December 10, 2012 at Batasan Hills Quezon city

6. Senator Antonio Trillanes IV

Senator, 15th

Congress

Sen. Trillanes was one of the early filers of a FOI bill in Senate during the

15th

congress.

Interviewed January 21, 2013 at Roxas Boulevard Pasay city

32

D. Data Analysis

The researchers will be compiling vital information about the bills through a

table. With the help of interviews and newspaper archives, they will be able to gain more

knowledge of the circumstances surrounding the different bills and ultimately, to answer

why a Freedom of Information Act in the Philippines has not yet been passed in all these

years.

E. Research Instrument

These are some of the possible questions the researchers may ask their interviewees:

1. What is the need for an FOI act to be passed in the Philippines?

2. What impact would its passage have to the government? To the country as a whole?

3. What has your organization/office done to push for the passage of the bill?

4. Why do you think an FOI law has not been passed all these years?

These are only general questions that had been asked to all the interviewees. Other

more specific questions arose depending on the position or affiliation of the person

interviewed.

33

F. Scope and Limitations

The thesis would give an accurate account of the history of the Freedom of

Information bill based on a paper trail through government records of the bills and

Congress proceedings where each version of the bill was discussed.

The key-informant interviews with primary proponents, non-government

supporters, critics, and adversaries were used to support and explain the information from

the archival research. Because the research mainly relies on these, lack of interviews and

little information gathered from the newspapers greatly affected the analysis and

discussion the researchers had provided regarding the topic.

Also for the newspaper research, the writers of this thesis only checked the

months and years in which there were FOI bills filed either at the lower house or at the

Senate. It would take too much time to go through all the years (from 1992-2012), thus

the researchers decided to limit the scope of newspapers to be checked.

The research is mainly a historical study and not an investigative one. The main

objective of the thesis was to give a historical overview of the FOI bill and what it had

undergone since it was first filed in 1992.

1. Time Table

June to October Thesis proposal completion

October to December Data gathering: Archival research of filed FOI bills

(since 1992) at the House of Representatives and

the Senate

Early to mid January Interviews

34

Late January to February Data compilation

Early March First Draft

Mid March Revisions

Late March Second Draft

Early April Binding

2. Budget

Transportation: House of Representatives, Senate, Interviews P 1,000.00

Printing and photocopying: bills, committee hearing transcripts, other

research data

P 2,500.00

TOTAL P 3,500.00

35

V. RESULTS AND DISCUSSION

According to most reports and studies, the first Freedom of Information bill was

filed by then Pangasinan First District Representative Oscar Orbos in 1992. Indeed, the

first FOI bill at the House of Representatives (House) was filed by him on August 31,

1992. However, it had been earlier filed at the Senate. Senator Alberto G. Romulo filed

the “Freedom of Access to Information Act” on July 1, 1992 while Senator Raul S. Roco

filed the “Right to Information Act” a day after. Only Rep. Orbos’ version was filed at

the House while two other versions were filed at the Senate after Senators Romulo and

Roco during the 9th

Congress from 1992-1995.

Table 1.Matrix of Bills from 1992-1995

House of Representatives

Bill No. Principal Author/s Short Title Date filed Committee referred to

1805 Oscar M. Orbos

Freedom of

Information Act of

1992

31-Aug-92 Public Information

Senate

Bill No. Principal Author/s Short Title Date filed Committee/s referred to

*80 Alberto G.

Romulo

Freedom of Access

to Information Act 1-Jul-92

Public Information and

Mass Media

*206 Raul S. Roco Right to

Information Act 2-Jul-92


Mass Media; Civil

Service and Government

Reorganization

36

*777 Francisco S. Tatad

Official

Information Access

Act of 1992

25-Sep-92 Public Information and

Mass Media

1242

(sponsors)

Coseteng, Herrera,

Roco, Romulo,

Tatad

Access to Official

Information Act of

1993

21-May-93 Public Information and

Mass Media

*Bills replaced by SB 1242 (substitute bill).

In the 10th

Congress from 1995-1998, two FOI bills were filed at the House and

three at the Senate. At the 11th

Congress from 1998-2001, three bills were filed each at

the House and the Senate.




3018 Romeo G.

Guanzon

The Access to

Information Act of

1992

31-Aug-95 Public Information

7608 Raul A. Daza Freedom of Access

to Information Act 29-Jul-96 Public Information

Senate


946 Raul S. Roco Access to

Information Act 27-Jul-95


Mass Media; Civil


Reorganization

37

1004 Francisco S. Tatad

Official

Information Access

Act of 1995

1-Aug-95


Mass Media; Civil


Reorganization

1038 Alberto G.

Romulo

Freedom of Access

to Information Act 3-Aug-95


Mass Media; Civil


Reorganization



Bill No. Principal Author/s Short Title Date Filed Committee Referred To

2884 Harlin C. Abayon

Freedom of Access

to Information Act 25-Aug-98 Public Information

8196

Jose Apolinario L.

Lozada Jr.

The Freedom of

Information Act of

1999 1-Sep-99 Public Information

**8947 Harlin C. Abayon

Freedom of Access

to Information Act 16-Dec-99 Public Information

** Approved by the House on 11-Apr-00, transmitted to the Senate 12-Apr-00 and

received on 17-Apr-00.

Senate


121 Juan Flavier

Freedom of Access

to Information Act 30-Jun-98


Mass Media

38

358 Francisco S. Tatad

Official

Information Access

Act of 1998 30-Jun-98


Mass Media; Civil


Reorganization

1829 Franklin M. Drilon

Freedom of

Information Act of

1999 24-Nov-99


Mass Media

The following Congresses saw a rise at the number of bills being filed in both

houses. During the 12th Congress, six bills were filed at the House and the seventh was

filed as a substitute for the previous ones. Meanwhile only four were filed at the Senate.




*83

Apolinario L.

Lozada Jr.

Freedom of

Information Act of

2001 2-Jul-01 Public Information

*382 Harlin C. Abayon

Freedom of Access


*780 Cynthia A. Villar

Freedom of Access


*4919

Romualdo T.

Vicencio

Freedom of Access

to Information Act 10-Jun-02 Public Information

*5609 Satur C. Ocampo

Freedom of

Information Act 21-Jan-03 Public Information

39

*5784

Loretta Ann P.

Rosales, Del R. De

Guzman, J.R.

Nereus O. Acosta,

Mario Joy Aguja

Right to

Information Act of

2003 24-Feb-03 Public Information

6671

Jose Apolinario L.

Lozada Jr.

Freedom of Access

to Information Act

of 2003 26-Jan-04 Rules

*Bills replaced by HB 6671 (substitute bill).

Senate


42 Juan Flavier

Freedom of Access



Mass Media; Civil


Reorganization

706

Loren Legarda-

Leviste

Official Access to

Information Act of

2001 30-Jun-01


Mass Media; Civil


Reorganization

1099

Manuel B. Villar

Jr.

Freedom of Access

to Information Act 1-Jul-01


Mass Media; Civil


Reorganization

1717 Blas F. Ople

Freedom of

Information Act of

2001 6-Sep-01


Mass Media; Civil


Reorganization

1728

Francis N.

Pangilinan

Freedom of Access

to Information Act 11-Sep-01


Mass Media; Civil


Reorganization

40

2508

Francis N.

Pangilinan

The Right to

Information Act of

2003 26-Feb-03


Mass Media; Civil


Reorganization; Finance

2631 Noli de Castro

Right to

Information Act of

2003 12-Aug-03


Mass Media; Civil


Reorganization; Finance

At the 13th

Congress from 2004-2007, five bills were filed at the House, with the

sixth being the substitute. Six bills were also filed in Senate. The researchers also noticed

that it was in this Congress that most of the bills filed had numerous authors and/or

sponsors unlike in previous Congresses wherein the FOI bills only named one or two

representatives as its authors (except for substitute bills).




*784 Harlin C. Abayon

Freedom of Access


41

*2123

Satur C. Ocampo,

Teodoro A.

Casino, Joel G.

Virador, Crispin B.

Beltran, Rafael V.

Mariano, Liza L.

Maza, Abraham B.

Mitra, Lorenzo R.

Tanada III,

Eduardo C.

Zialcita

Freedom of

Information Act 4-Aug-04 Public Information

*2993

Emmanuel Joel J.

Villanueva, Del R.

De Guzman,

Lorenzo R. Tanada

III, Loretta Ann P.

Rosales, Mario J.

Aguja, Ana

Theresia H.

Baraquel

Freedom of Access

to Information Act

of 2004 22-Sep-04 Public Information

*3041

Ernesto C. Pablo,

Edgar L. Valdez,

Sunny R.A.

Madamba

Electronic Access

to Information Act 23-Sep-04 Public Information

*3580

Loretta Ann P.

Rosales, Mario J.

Aguja, Ana

Theresia H.

Baraquel

Right to

Information Act of

2004 11-Jan-05 Public Information

6106

Abayon, Ocampo,

Casino,

Villanueva, de

Guzman, Pablo,

Valdez, Madamba.

Rosales, Aguja

Freedom of Access

to Information Act

of 2007 8-Feb-07 Rules


42

Senate


148

Luisa “Loi” P.

Ejercito Estrada

Improvement of

Information Access

Act 30-Jun-04


Mass Media

776

Manuel B. Villar

Jr.

Freedom of Access



Mass Media

1112 Franklin M. Drilon

Freedom

of Information Act

of 2004 30-Jun-04


Mass Media

1206

Ramon Bong

Revilla Jr.

Official

Information Access

Act of 2004 1-Jul-04


Mass Media

1600

Miriam Defensor

Santiago

Improvement of

Information Access

Act 3-Aug-04


Mass Media

1633

Sergio R. Osmena

III

Freedom of

Information Act 4-Aug-04


Mass Media

During the 14th

Congress, nine bills were filed at the House, with a 10th

being a

substitute. Meanwhile, the 14th

Congress saw the first substitute bill from the Senate. Six

bills were previously filed before the substitute.

43




*194

Juan Edgardo M.

Angara

Freedom of Access


*997

Emmanuel Joel J.

Villanueva

Freedom of Access

to Information Act

of 2007 10-Jul-07 Public Information

*1665

Joseph Emilio A.

Abaya

Freedom of


*2021

Emmylou J.

Talino-Mendoza

and Emmanuel

Joel J. Villanueva

Freedom of Access

to Information Act

of 2007 13-Aug-07 Public Information

*2059

Lorenzo R. Tanada

III and Del R. De

Guzman

Freedom of

Information Act of

2007 14-Aug-07 Public Information

*2176

Aurelio D.

Gonzales Jr.

Freedom of Access


*2223

Satur C. Ocampo,

Teodoro A.

Casino, Liza L.

Maza, Crispin B.

Beltran and

Luzviminda C.

Ilagan

Freedom of


*2293 Ernesto C. Pablo

Electronic Access


44

*3116

Ana Theresia H.

Baraquel

Freedom of

Information Act of

2007 21-Nov-07 Public Information

**3732

(sponsors)

Bienvenido M.

Abante Jr.,

Lorenzo L. Tanada

III

Freedom of

Information Act of

2008 10-Mar-08 Rules


**Approved on third reading on 12-May-08. Senate agreed on bicameral conference

committee report on 01-Feb-10 but House failed to pass the bill due to lack of quorum.

Senate


*16 Ramon Revilla Jr.

Official

Information

Access Act of 2007 30-Jun-07


Mass Media

*109 Mar Roxas

Free Information

Act 30-Jun-07


Mass Media

*576

JinggoyEjercito

Estrada

Official

Information

Access Act of 2007 2-Jul-07


Mass Media

*592

JinggoyEjercito

Estrada

Improvement of

Information Access

Act 2-Jul-07


Mass Media

45

*1578

Manuel B. Villar

Jr.

Freedom of Access

to Information Act 12-Sep-07


Mass Media

*2571 Loren Legarda

Freedom of

Information Act

of 2008 27-Aug-08


Mass Media

**3308

Ramon A. Revilla

Jr., Jinggoy P.

Ejercito-Estrada,

Manuel B. Villar

Jr., Alan Peter S.

Cayetano, Pia S.

Cayetano, Juan

Miguel F. Zubiri

Freedom of

Information Act of

2009 3-Jun-2009


Mass Media; Civil


Reorganization

*Replaced by SB 3308 (substitute bill).

**Passed third reading on 14-Dec-09. Senate agreed on bicameral conference committee

report and approved the bill on 1-Feb-10 and was transmitted back to the House.

Finally, in the 15th

Congress (2010-2013), there are 15 FOI bills currently filed at

the House with the last being a substitute. The Senate is not far behind with 14 FOI

legislations filed, the last also a substitute.




*11 Rodolfo Biazon

Freedom of

Information Act of

2010 1-July-10 Public Information

46

*22

Marcelino R.

Teodoro

Freedom Of

Information Act Of


*53

Lorenzo R. Tanada

III

Freedom Of

Information Act Of


*59

Karlo Alexei B.

Nograles

Freedom Of

Information Act Of


*86

Juan Edgardo M.

Angara

Freedom Of

Information Act Of


*133

Teodoro A. Casino

and Neri J.

Colmenares

An Act To Ensure

Public Access To

Official Records,

Documents And

Any Other

Information Of

Public Concern Or

Freedom Of

Information Act 1-July-10 Public Information

*301

Walden F. Bello

and Arlene J. Bag-

ao

Freedom of

Information Act of


*830

Pedro P.

Romualdo

Right to Access

Information Act of


*1713

Sergio A.F.

Apostol

Freedom of

Information

and Protection of

Privacy Act of 2010 26-July-10 Public Information

*1968

Rachel Marguerite

B. Del Mar

Freedom of

Information Act of


47

*2128 WinnieCastelo

Freedom of

Information Act of

2010 04-Aug-10 Public Information

*2969

Salvador H.

Escudero III

Freedom of

Information Act 02-Sep-10 Public Information

*4252

Rodolfo W.

Antonino

Freedom of

Information and

Transparency Act

of 2011 21-Feb-11 Public Information

*4851 Sherwin N. Tugna

Freedom of

Information Act of

2010 09-Jun-11 Public Information

*6555

Joseph Victor G.

Ejercito 11-Sep-12 Public Information

6766

Biazon, Teodoro,

Tanada, Nograles,

Angara,

Colmenares, Belo,

Bag-Ao,

Romulado,

Apostol, del Mar,

Castelo, Escudero,

Antonino, Tugna,

Herrero, Evardone,

Herrera-Dy, Cruz-

Gonzales, Sy-

Alvarado and

Hataman- Sallivan

An Act

Strengthening the

Right of Citizens to

Information held by

the Government 17-Dec-12 Rules

*Substituted by HB 6766 (substitute bill).

48

Senate

Bill No. Author/s Short Title Date Filed Committee Referred To

11

Antonio F.

Trillanes IV

Freedom of

Information Act of

2010 1-July-10


Mass Media

25

Ramon “Bong”

Revilla Jr.

Freedom of

Information Act of

2010 1-July-10


Mass Media

126 Sergio Osmena III

Freedom of

Information Act 5-July-10


Mass Media

149

Francis N.

Panglinan

Freedom of

Information Act of

2009 6-July-10


Mass Media

158

Teofisto “TG”

Guingona III

Freedom of

Information Act of

2010 6-July-10


Mass Media

162

Juan Mguel F.

Zubiri

Freedom of

Information Act of

2010 6-July-10


Mass Media

1254 Manny Villar

Freedom of Access

to Information Act 12-July-10


Mass Media

1440 Loren Legarda

Freedom of

Information Act of

2010 12-July-10


Mass Media

2086 Francis Escudero

Freedom of

Information Act 27-July-10


Mass Media

2189

Gregorio Honasan

II

Freedom of

Information Act of

2010 28-July-10


Mass Media

49

2283

Miriam Defensor

Santiago

Freedom of

Information Act 2-Aug-10


Mass Media

2354

Alan Peter

Catyetano

Freedom of

Information Act of

2010 4-Aug-10


Mass Media

3183

Gregorio Honasan

II

People's Ownership

of

Government

Information (POGI)

Act of 2012 7-May-12


Mass Media

**3208

Antonio F.

Trillanes, Ramon

A. Revilla Jr.,

Sergio R. Osmena

III, Francis N.

Pangilinan,

TeofistoGuingona

III, Manny B.

Villar, Loren B.

Legarda, Miriam

Defensor Santiago,

Francis G.

Escudero,

Gregorio B.

Honasan II, Alan

Peter Cayetano,

Franklin M. Drilon

People's Ownership

of

Government

Information (POGI)

Act of 2012 23-May-12


Mass Media

**Approved on third reading on 17-Dec-12.

Summing up, from 1992-2012, or in a span of 20 years, 44 FOI bills have been

filed each at the House and the Senate.

The next parts will give a more in depth and detailed discussion of the

circumstances surrounding the FOI bills based on what the writers will have gathered

from their interviews and newspaper archival research.

50

A. History of the FOI

1. Developments from the different Congresses

During the course of this research, the writers encountered difficulty finding

information on the early beginnings of the FOI bill. No articles came out in the

newspaper and even the interviewees could not give any information as to how and why a

bill to guarantee freedom of information started in the Philippine legislature.

However, Ed Lingao, Multimedia Director of the Philippine Center for

Investigative Journalism (PCIJ), said this could have been because there were really

“other things that appeared on the plate of everybody else that time.” For one, the year

the first bill was filed, which was in 1992, was also the year the country held its first

presidential elections since the EDSA People Power. Lingao also added that during this

time the Government of the Republic of the Philippines had ongoing peace talks with the

National Democratic Front of the Philippines(E. Lingao, personal communication,

February 22, 2013).

Attorney Nepomuceno Malaluan, secretary of the Access to Economic Reforms

(AER) and convenor of the Right to Know, Right Now! (R2KRN) coalition, said it was at

the latter part of the 11th

congress and the beginning of the 12th

that the AER discovered

other organizations who shared the same sentiment about the freedom of access to

information. The AER had organized a forum regarding the FOI and had met these other

groups, like the Transparency and Accountability Network (TAN) and other media

groups, for a passage of a bill that would guarantee FOI (N. Malaluan, personal

communication, December 13, 2012).

51

Malaluan also said that after the forum, “we decided to engage in the legislative

process.” They talked to different representatives and senators regarding their advocacy

and Malaluanclaimed that it was during the 12th

congress where the “the first bill of FOI

that embodied some level of consultation with public interest organizations” was filed.

It was in 2001 when the Access to Information Network (ATIN) was formed.

Malaluan said the some of the first members of ATIN were the Philippine Center for

Investigative Journalism (PCIJ) and the Transparency and Accountability Network

(TAN). There were other legal and public interest groups who formed part of the

network. Malaluan said all the members agreed “that part of the problem was the absence

of a more comprehensive FOI legislation that would supplement what is guaranteed in

the constitution.”

It was also in 2001 when PCIJ released a book entitled “Access to Information in

Southeast Asia.” The book “examines the state of media in these [SEA] countries and the

obstacles faced by journalists and citizens who wish to obtain access to public records

(PCIJ, 2001).”

However for Red Batario, executive director of the Center for Community

Journalism and Development, because a more “concerted effort” for the FOI was just

beginning, it did not really “take off” during the 12th

congress. The FOI was still not a

priority for the legislators at the House of Representatives (R. Batario, personal

communication, February 12, 2013).

In the 13th

congress, Batario said they also started working with different

international organizations to be able to “drum up support” for the passage of the bill.

52

Vincent Lazatin, director of the TAN, said the ATIN was still a very small group,

composed of “maybe about less than 10 organizations.” Same as the 12th

congress, the

13th

also did not see any significant change or leap in terms of pushing for the legislation

of an FOI bill. The impeachment of former President Joseph “Erap” Estrada happened in

2001. However this incident did not prove enough to jumpstart a public clamour for the

passage of a bill that would guarantee the citizens information as to where their taxes go

or as to where the president spends the people’s money. Malaluan said Estrada’s

impeachment even “disrupted” the progression of the bill (V. Lazatin, personal

communication, March 5, 2013)

In 2005, then President Gloria Macapagal Arroyo, who took the seat upon

Estrada’s impeachment, was involved in an election-related controversy.

Also known as the “’Hello Garci’ Scandal,” the controversy involved President

Arroyo and then Election Commissioner Virgilio Garcillano. In June 2005, audio

recordings of a phone conversation allegedly between the both of them talking about the

rigging of the 2004 national election results were released to the public. Allegations such

as fraud and electoral cover up were thrown to Arroyo and some of her allies. There were

also attempts to impeach her but then did not succeed. In 2006, the Department of Justice

cleared Garcillano of the perjury charges filed against him.

Post 2005, Lazatin said more groups started to realize the importance of the

freedom of information.

By the time the 14th

congress came around in 2007, the R2KRN campaign, and

the coalition along with it, began. That, in order to generate more public clamour for the

53

passage of the bill, a group of only ten media and anti corruption organizations had to get

more members from other sectors, thus creating a larger coalition.

With a wider coalition came more activities. Both Batario and Lazatin said the

formation of a broader coalition also led to the start of mobilizations to “put pressure on

the legislators to pass the freedom of information.”

2. The 14th

Congress: A Special Case

In a span of seven congresses (1992 to present), out of the 80 plus bills filed in

both houses, it was only in the 14th

Congress that the FOI bill would have become a law.

However, in the final step before the bill was to be sent to the president for signing, it was

killed.

House Bill (HB) 3732, entitled “An Act Implementing the Right of Access to

Information on Matters of Public Concern Guaranteed Under Section Twenty-Eight,

Article II and Section Seven, Article III of the 1987 Constitution and for Other Purposes”

or the “Freedom of Information Act of 2008,” was a substitute for nine bills which had

been previously filed in at the House and referred to the committee on public information

for deliberation.

On April 30, 2008, the bill passed second reading in the House. On May 12, it

approved the bill with 197 out of 220 voting in favour of it. However it was still in May

2009 that the Senate conducted committee hearings that tackled its own version of the

bill. A committee report was finalized and in June 3, 2009, the Senate Committee on

54

Public Information and Mass Media, headed by Senator Gregorio B. Honasan, filed

Senate Bill (SB) 3308 or the “Freedom of Information Act of 2009” in substitute for six

bills previously filed. On December 2009, the bill passed its second and third reading in

Senate. In January 2010, a bicameral conference committee was formed to tackle

revisions in the Senate and House bills (Panela, 2010, p.7).

The Senate approved the revised SB 3308 on February 1, 2010 and sent it back to

the House for its third and final reading. On February 3, before going into recess to

prepare for the May 2010 elections, the House failed to approve the bill for lack of

quorum. Upon resumption on June 4, the House suspended the national canvassing of

May 10 votes supposedly to tackle pending legislative measures. This session was the

bill’s last chance to become a law before the 15th

Congress would open. Bienvenido

Abante, representative of the sixth district of Manila, moved to ratify the FOI bill but

Camiguin representative Pedro Romualdo objected and asked for a roll call. The House

needed 135 present members to constitute a quorum. House speaker Prospero Nograles,

Davao first district representative, adjourned the session when the secretary general said

there were only 128 present on the floor (Panela, 2010, p. 7).

Malaluan said it was in the 14th

Congress when the movement realized the

magnitude of political pressure. When it came to FOI, he admitted that “there is a very

strong, unstated opposition with politicians. There is no one that says I oppose FOI bill

but the actions run contrary to that public statement.”

55

Malaluan said it was made evident by what happened through the delays that had

transpired in the lower house. According to him, legislators in the House, some, very

influential, are very sensitive to criticism, thus causing the silent resistance to the bill.

When the bill was ready for ratification and the Chair refused to mention anything

about it in the agenda, Malaluan revealed that the process might be simple, yet “even if

you study the rules, it’s different from how it’s implemented.”

Regarding the lack of quorum, Malaluan admitted that although the advocates

were trying to reach the members of congress to encourage them to join the commitment

to put the bill to a vote, they already knew there were text messages going around asking

congressmen not to attend. “When we got the roll call result of the day, we thought that,

hey, the other groups that were asking congressmen not to come, who were members of

congress themselves won the convincing.” But they found out that night of the following

day that by their count, as well as videos and various statements of representatives who

have attended, there were at least eight representatives actually present on the floor when

the roll call was made, and there was, indeed a quorum on that day.

Malaluan pressed that a learning point from the quorum episode was the need for

a mechanism to verify the numbers because the incident can happen again. “It can happen

both ways – they might call a quorum when there aren’t a sufficient number of people on

the floor. They can also call a non-quorum even if there are enough people.”

56

3. FOI during the 15th

Congress

In the 15th

Congress, the bill has received unbalanced attention from the House

and the Senate. 10 bills have been filed in the House as Congress opened in July 2010,

and a Technical Working Group (TWG) led by Rep. Erin Tanada was formed in February

2011, following the endorsement of the bill made by President Aquino in January of the

same year. The TWG moved to consolidate the 15 bills filed in the House, including the

provisions suggested by Malacañang. The substitute bill authored by Tanada has

languished in the House for over a year, with Eastern Samar Representative and

Committee of Public Information Chairman Ben Evardone failing to call for hearings to

discuss the FOI during 2011. The bill was next discussed during the March 13, 2012

hearing, followed by a hearing in October that reportedly got cancelled because there was

a “lack of room” in which to conduct it. Tanada maintained that he found a room to

conduct the hearing and thereby informed Evardone, yet his offer was dismissed because

he “failed to coordinate” with Evardone from the start.

At the November 13, 2012 hearing, Nueva Ecija Rep. Rodolfo Antonino proposed

the insertion of a Right of Reply provision which took up almost two hours of the

session's time. When a motion was made and seconded to finally put the bill to a vote,

Antonino moved to adjourn the hearing due to a technicality.

The fourth hearing of the bill was on November 27, 2012, when the bill was

finally approved in the committee level with 17 representatives voting for, 3 voting

against, and 1 abstaining. After it was approved, however, Evardone called for another

hearing to approve or sign the committee report instead of officially sending it over to the

57

plenary. “The practice here in the house by the different committees is that once a bill is

approved, you just pass around the bill or ask somebody to go to the different members

and have them signed,” said Tanada. In that light, according to him, this hearing can be

considered another “delaying tactic” by the chair (L. Tanada, personal communication,

December 10, 2012).

In contrast to the sluggish pace of the bill in the House, its journey in Senate has

proven to be more rewarding. On May 7 2012, Sen. Gregorio Honasan II filed SB 3183

or the People’s Ownership of Government Information (POGI) Act of 2012. This was

then consolidated with the previous bills filed in Senate into SB 3208, the substitute bill

of the same name. This bill breezed through Senate on its first and second reading, with

Sen. Miriam Defensor adding a couple of major amendments, all of which were easily

accepted.

On December 17, 2012, the POGI bill went like a bullet through Senate on its

third and final reading.

4. Recent Developments on FOI

Although the bill’s advocates have lobbied for it right after session resumed from

the Christmas break, a blockade arose in the form of a sudden withdrawal of support from

the Makabayan partylist bloc.

Nine days before congress closed for the upcoming election, Anakpawis Rep.

Rafael Mariano, ACT Teachers Rep. Antonio Tinio, Kabataan Rep. Raymond Palatino,

58

Gabriela Reps. Emmi de Jesus and Luzviminda Ilagan, and Bayan Muna Reps. Teddy

Casino and Neri Colmenares all pulled out backing in dissatisfaction with Malacanang’s

move to insert provisions that exempt disclosure in areas regarding national security and

executive privilege, “watering down” HB 6766, the current version of the FOI bill.

Casino also removed himself from co-authorship of this bill, saying this was no longer

the genuine FOI he was pushing for.

Despite this, The Right to Know, Right Now! Coalition has issued a statement in

support of the Aquino-endorsed bill a year prior to the Makabayan bloc’s withdrawal of

support.

In their statement, the coalition said the President’s endorsement achieves two

things. “First is it removes the main reason why the bill has been stalled in the legislative

wringer, particularly at the House of Representatives, and second, it resolves the

‘concerns’ about the bill that the President has expressed, thereby reducing the danger of

a Presidential veto.”

“I think (the Malacanang version) is something that is acceptable to the FOI

advocates. We've bent a little on some areas and these are the areas which I think are not

the non negotiables,” said Lazatin.

With the dilly-dallying of the House, and session formally closing last February 9,

2013, the Freedom of Information bill is officially “dead” in the 15th

Congress.

59

5. Future for the FOI Bill

“The future for FOI is that it won’t go away. The politicians fear it but it won’t go

away because it’s a guarantee that people will demand. When it will be passed is a

matter of when. It‘s a matter of time.” – Attorney Nepomuceno Malaluan

The freedom to give and receive information regardless of frontiers has been

declared a human right by the United Nations in 2005. This leads the supporters of the

bill to tenaciously seek its passage not only as a basic right and but also as a standard of

democracy.

Lingao claimed the passage of the bill depends on the president. “If the president

continues to waffle on the FOI, concern is that you might still not get an FOI even under

a more democratic president.”

Sen. Trillanes, Batario, and Lazatin however agree that the bill’s passage could

still be seen during Aquno’s term, most likely in the latter part of the 16th

Congress. “By

then, the Aquino administration would be going out, and he may use that, leave that as a

legacy which cannot be used against him because he’s on the way out. The new policy

now would be implemented during the next administration, which is definitely not

Aquino because he’s only good for one term,” said Trillanes.

“It's hard to be a president on a platform of good governance and daang matuwid

without having the freedom of information, So perhaps towards the end of his term, we

might see him supporting the bill,” added Lazatin.

60

The bill’s future also depends on building enough public clamour to add pressure

on the legislators for its passage. Advocates of the bill have added that they have a lot of

work to do in terms of making the bill an everyday issue for Filipino citizens, because as

it is, it merely seems like a highfaluting piece of legislation that only the media would

benefit from, which in fact, isn’t the case.

“People don't seem to be able to relate to FOI because they are not able to relate

information with their daily lives,” said Batario, adding that it is a challenge for the

advocates to campaign more vigorously in pursuit of a more heightened public

awareness.

“You have to try to break the concept down into chewable pieces,” Batario added,

“because unless you have public support, like what happened with Cybercrime, nothing

will happen.”

B. Contributors and Obstacles to the passage of the FOI

Numerous interconnected factors have both contributed to and hindered the

passage of the FOI bill in the Philippines. To be discussed below are some of the most

salient factors, as agreed upon by the interviewees for this thesis.

1. Presidential Support

All the interviewees agreed that a show of support from the president or a signal

from him to prioritize the bill greatly affects its chances of getting passed into a law.

During the course of the FOI bill, none of the presidents have actively shown support for

61

the bill, which could have explained the slow pace of its passage throughout all these

years.

Batario said that presidents have a “large effect” on the legislative process when

they certify a bill as urgent. As Lingao put it, what is needed is a “clear, unequivocal

support from the President.”

But this has not been evident throughout the history of the FOI. As earlier

mentioned, only President Noynoy Aquino has expressed support for the bill but he has

also continually shown otherwise, citing the lack of public clamour to be one of the main

reasons for his inaction.

Lazatin, however disagreed, saying that was not the “real issue.”

“I think the president has discomfort with sharing information, especially the

media,” he said. Lazatin added that two of Aquino’s fears are, (1) abuse of the

information by the media and (2) abuse of the information by his political rivals or

opponents.

“I don’t think he should be fearful of [those]. If he is on the daang matuwid, no

matter what information people would dig up at throw at [him], if there’s nothing wrong,

there’s nothing wrong, right?” he said.

But the president’s influence may also only be a small factor in the legislative

making process. For example, President Arroyo never supported the bill (and the

interviewees agreed she never would), but it was during her term that the bill got its

farthest.

62

2. Public Clamour

Considering the issue of public demand for the bill, interviewees agreed that there

is “substantive demand” but that it “isn’t enough.”

Batario said, “people don’t seem to be able to relate to FOI because they are not

able to relate information with their daily lives.” Lazatin said people think it is a “very

high level policy issue.”

For Batario, the FOI mainly catered to those involved in the campaign and they

failed to engage other citizens, to whom the bill is also supposed to benefit. Batario added

that there had been a failure to “generate public support” and that getting more citizens

involved should be the focus of future campaigns, especially for the 16th

congress.

Lingao, meanwhile, said the concept of the FOI is really “difficult to explain.”

People are more concerned with oil and rice prices.

“But as a voter or as a constituent, you should have the freedom to ask where the

money of your barangay is going. Why does your health center lack budget, whereas

your councillor seems to be getting richer?”

3. Right of Reply

Another major factor that has been the cause of delay in the passage of the FOI is

the debate on the inclusion of a right of reply (ROR) provision in the proposed law.

Nueva Ecija Rodolfo Antonino’s version of the bill includes an ROR provision

that allows any person involved in an issue relating to the obtained documents to explain

63

or account for the issue in the media. In an article by GMA News, Rep. Antonino

reportedly “vowed” to block moved to approve the bill if it will not include his ROR

provision (Calonzo, 2012).

Media groups have especially expressed strong opposition to the provision,

stating that it violates press freedom and undermines editorial independence.

In a statement, supporters of the FOI said Rep. Antonino wasted time during the

final committee hearing for the bill “on his redundant insistence on having his complaint

heard.” According to the statement, Rep. Antonino had raised his issue regarding the

ROR and it had already been resolved then.

For Lazatin, the ROR is a “completely different issue” and should not have

anything to do with freedom of information and insisted the FOI should not be held

“hostage” for an issue that does not have any constituency outside the walls of

Congress.”

4. Legislative body itself

But, the biggest factor that contributes to the passage or non passage of the bill is

the lawmakers themselves. They agreed that much of the resistance comes from the

House of Representatives. None of them will outrightly say that they are against the bill’s

passage but it has been evident in their dilly dallying and the delaying tactics that have

been employed in discussing the FOI bill.

FOI advocates and supporters, for example, “speculated” that the June 4, 2010

session that was finally to approve the FOI bill during the 14th

congress was “scripted by

[then House Speaker Prospero] Nograles and Malacanang (Panela, 2010, p.7).”

64

In a report by released by GMA News, Malou Mangahas of PCIJ wrote that

House leadership under Nograles “had [also] been found in default of audit and budget

procedures by the Commission on Audit (COA).” Mangahas added that over the years the

House under Nograles had been awarding itself “bigger and bigger budgets.” Reportedly,

many of the contracts for the renovation and adding of facilities to the House have raised

allegations of being “overpriced and negotiated.”

Further, the article claimed that suspicion lingers that more secrets have been

“kept under lock and key in the House.” Supporters of the FOI have argued that the bill

would have served the public well. There could possibly be other “skeletons in the

closet” Nograles did not want exposed (Mangahas, 2010).

Forward to the 15th

congress and another leadership has been put into question by

FOI advocates. In a statement released by the R2KRN dated November 13, 2012, the

coalition accused Committee on Public Information Chairman Ben Evardone of being

“the biggest disappointment of all” through his “failure of leadership.”

Evardone had been scrutinized for employing several “delaying tactics” in

discussing the bill during the 15th

congress. Added to this, he had also been quoted to

“accuse” the President and members of the Liberal Party for the delay in the passage of

the bill (R2KRN, 2012).

In a news report, Ifugao Rep. Teddy Brawner Baguilat Jr. accused Evardone of

protecting his “former allies” in the Arroyo administration, using it as an explanation for

his resistance to the bill.

65

Rep. Tanada himself said it was his “lack of interest in calling for hearings with

regard to the FOI” that had seriously hindered its passage in the 15th

congress. Tanada

said that had there been more hearings conducted, the issues concerning the FOI,

including the inclusion of a right of reply section, would have been answered.

“Now the number of session days is limited, this is when he wants to call for a

hearing to show he’s interested in the bill,” Tanada said.

Meanwhile, Batario claimed that because most of these representatives are still

part of the “political elite,” they will not allow the passage of a law that could put their

dynasties in danger. He also said that it was the Senate who had always been more open

to the FOI bill, especially from the 13th

-15th

congresses.

According to Atty. Malaluan, the difference between Senate and House is that

senators are more used to public scrutiny than congressmen. This could be one of the

reasons why the bill differs drastically in pace in the two houses.

“Because they’re in the national limelight, under scrutiny by the media and

various groups, they don’t fear transparency anymore. In contrast to the house, many are

still not used to this. They’re very sensitive to criticism. And many of them would really

rather not be noticed in the national scale.”

Added to this, Lingao said that because senators are elected on a national level

they are “of a more sophisticated mindset.” For him, senators think more of what the

media wants, unlike congressmen who “tend to pander more on patronage politics,” that

is, what would enable them to be re-elected.

66

In a statement released September 2012, the R2KRN concluded the “real fear”

about the FOI that makes legislators hesitant to support it “is that it will open the door to

legitimate public scrutiny into their official acts and transactions, and enable the people’s

right to know the good, the bad, and the ugly about them all.

C. Comparison of Recent Bills

The bills that have gone farthest in the legislative process are HB 3732, “The

Freedom of Information Act of 2008,” HB 6766, “The Freedom of Information Act of

2012,” and SB 3208, the "People's Ownership of Government Information (POGI) Act of

2012.”

Essentially, all the bills agree on the non-negotiable provisions such as mandating

openness, accessibility, and accountability in all branches and offices of government,

developing quick and efficient implementation of procedures, and conducting orderly

appeal systems in case of denial of access. However, the bills differ in a few of its

exceptions. Noting that HB 6766 is the direct result of the Aquino-mandated Technical

Working Group (TWG), and SB 3208 was based from HB6766, it can be seen that

executive privilege has gained more control over exceptions in these two as compared to

the one filed in the previous congress.

Table 8 contains a more in-depth comparison of the different bills’ provisions,

exceptions, and liabilities. Full copies of said bills will be provided in the appendix.

67

Table 8. Comparison of consolidated bills.

HB 3732 HB 6766 SB 3208

Congress

Filed

14th 15th

15th

Authors Angara, Del Mar,

Villanueva, Cruz-

Gonzales,

Abaya,TAliro-

Mendozat, Anadad, E

Guzman, Gonzales,

Ocampo, Casino,

Pablo, Hontiveros-

Baraquel, Coquilla,

Fua, Teodoro, Haito,

Maza, Beltran,

Ilagan, Abante,

Codilla, Daza,

Alcala, Biazon, et. al

Biazon, Teodoro,

Tanada, Nograles,

Angara, Casino,

Colmenares, Bello,

Bag-ao, Romualdo,

Apostol, Del Mar,

Castelo, Escudero,

Antonino, Tugna,

Ejercito, Evardone,

Herrera-Dy, Cruz

Gonzales, Sy-Alvarado,

Hataman-Salliman

Trillanes, Revilla Jr.,

Osmena III,

PangilinanGuingona

III, Villar, Legarda,

Santiago, Escudero,

Honasan II, Cayetano

(A.)

Access

toInformati

on

Sec. 6 - All

information

pertaining to official

acts, transactions or

decisions, as well as

government research

data used as basis for

policy development,

regardless of their

physical form or

format

Sec. 5 – Every person

who is a Filipino

citizen has a right to

and shall, on request,

be given access to any

record under the

control of a

government agency.

Government agencies

shall make available to

the public for scrutiny,

copying and

reproduction as

provided, all

information pertaining

to official acts,

transactions, or


government research

data used as a basis for

policy development,

subject to the

exceptions in Sec. 7

Sec. 5. Every Filipino

citizen has a right to

and shall, on request,

be given access to

any record under the

control of a

government agency.

Government agencies

shall make available

to the public for

scrutiny, copying and

reproduction in the

manner provided by

this Act, all

information

pertaining to official

acts, transactions or


government research

data used as a basis

for

policy development,

subject to the

exceptions

enumerated under

68

section 7 of this Act,

regardless of their

physical form or

format in which they

are contained and by

whom they were

made.

Exceptions Sec. 8

Clear and

present

danger of war,

invasion or

any external

threat to the

State as

determined by

the Office of

the President

and/or the

Secretary of

the

Department of

National

Defense

Related to

foreign

affairs, when

its revelation

would unduly

weaken the

negotiating

position of the

government in

an ongoing

bilateral or

multilateral

negotiation or

seriously

jeopardize the

diplomatic

relations of

the

Philippines

with one or

more states

with which it

Sec. 7

Information

specifically

authorized to be

kept secret

under

guidelines

established by

an executive

order which is

directly related

to national

security or

defense and its

revelation may

cause grave

damage to the

internal and

external defense

of the State

Information

pertaining to

foreign affairs

that upon

revelation

would unduly

weaken the

negotiating

position of the

government or

seriously

jeopardize the

diplomatic

relations of the

Philippines with

one of more

states. The

executive order

shall specify the

Sec. 7

The

information

directly

relates to

national

security or

defense and

its revelation

may cause

grave damage

to the national

security or

internal and

external

defense of the

State; or 2)

The

information

requested

pertains to the

foreign affairs

of the

Republic of

the

Philippines,

when its

revelation

may weaken

the

negotiating

position of the

government in

an ongoing

bilateral or

multilateral

negotiation or

seriously

jeopardize the

69

intends to

keep friendly

relations,

except that

such

information

must always

be accessible

to either

House of

Congress

Internal and

external

defense and

law

enforcement,

when the

revelation

thereof would

render a

legitimate

military

operation

ineffective,

unduly

compromise

the

prevention,

detection or

suppression of

a criminal

activity, or

endanger the

life or

physical

safety of

confidential

or protected

sources or

witnesses, law

enforcement

and military

personnel or

their

immediate

families.

reasonable

period after

which the

information

shall be

automatically

declassified or

subject to

mandatory

declassification

review

Information

consisting of

records of

minutes, advice

given and

opinions

expressed

during decision-

making or

policy

formulation

which is

invoked

privileged by

the Chief

Executive for

reason of

sensitivity of

subject matter

Information

pertaining to

internal and/or

external

defense, law

enforcement,

and border

control which

upon disclosure

would

compromise

military or law

enforcement

operation and

detection and

suppression of

diplomatic

relations of

the

Philippines

with any state;

Provided,

further, that

the executive

order shall

specify the

reasonable

period after

which the

information

shall be

automatically

declassified or

subject to

mandatory

declassificatio

n review, and

that any

reasonable

doubt as to

classification

and

declassificatio

n shall be

settled in

favor of the

right to

information;

The

information

consist of

records of

minutes,

records of

advice given

or records of

opinions

expressed

during

decision-

making or

70

Information

relating to the

details of the

administration

, budget and

expenditure,

and

management

of the

defenseandla

w

enforcement

agencies shall

always he

accessible to

the public

The

information

pertains to

trade,

industrial,

financial or

commercial

secrets of a

third party

natural or

juridical

person,

obtained in

confidence by

a government

agency

whenever the

revelation

thereof would

seriously

prejudice the

interests of

the third party

in trade,

industrial,

financial or

commercial

competition,

unless the

third party has

criminal

activity, deprive

a person of a

right to a fair

trial, lead to the

disclosure of

the identity of a

confidential

source, disclose

techniques for

law

enforcement

investigations

or prosecutions,

and endanger

the life or safety

of any

individual

Information

pertaining to

personal

information of a

natural person

other than the

requesting

party, which

upon disclosure

would be a

violation of

personal

privacy

Trade secrets

and commercial

or financial

information

obtained from a

person other

than the

requesting

party, or

obtained in

confidence or

covered by

privileged

communication

Classified

policy

formulation,

invoked by

the Chief

Executive to

be privileged

by reason of

the sensitivity

of the subject

matter or by

reason of the

impairment of

the Chief

Executive's

deliberative

process that

would result

from the

disclosure

thereof. Once

policy has

been

formulated

and decisions

made, minutes

and research

data may be

made

available for

disclosure

unless they

were made in

executive

session.

The

information

requested

pertains to

internal

and/or

external

defense, law

enforcement,

and border

control, when

71

consented to

the disclosure

of the

information

The

information is

privileged

from

production in

legal

proceedings

by law or by

the Rules of

Court, unless

the person

entitled to the

privilege has

waived it;

The

information is

exempted by

statutes of

Congress, in

addition to

those

provided in

this section

The

information is

obtained by

any

committee of

either House

of Congress in

executive

session; and

Drafts of

decisions of

any executive,

administrative

, judicial or

quasi-judicial

body in the

exercise of

their

adjudicatory

information by

Rules of Court

Sec. 10 – Exemption

from Compliance – The

government agency

shall be excused from

complying with a

subsequent identical or

substantially similar

request from the same

requesting party where

it has previously

complied with a request

for information unless a

reasonable interval has

lapsed between

compliance with the

previous request and

the making of the

current request.

the disclosure

thereof may

compromise

or intervere

with any

legitimate

military or

law

enforcement

operation,

interfere with

prevention,

detection, or

suppression of

criminal

activity, lead

to the

disclosure of

the identity of

a confidential

source,

disclose

legitimate

techniques

and

procedures of

law

enforcement,

endanger the

life or

physical

safety of any

individual

The

information

requested

consists of

drafts of

orders,

resolutions,

decisions,

memoranda or

audit reports

by any

executive,

72

functions are

being

requested.

administrative

, regulatory,

constitutional,

judicial or

quasi-judicial

body in the

exercise of

their

regulatory,

audit and

adjudicatory

function.

The

information

requested is

obtained by

either House

of Congress,

or any

committee

thereof, in

executive

session.

The

information

requested

pertains to the

personal

information of

a natural

person other

than the

requesting

party, and its

disclosure

would

constitute an

unwarranted

invasion of

his or her

personal

privacy,

unless it

forms part of

73

a public

record, or the

person is or

was an

official of a

government

agency and

the

information

relates to his

or her public

function or

the person has

consented, in

writing, to the

disclosure of

the

information;

The

information

requested

pertains to

trade secrets

and

commercial or

financial

information

obtained from

a natural or

juridical

person other

than the

requesting

party,

obtained in

confidence or

covered by

privileged

communicatio

n, and/or filed

with a

government

agency,

whenever the

revelation

74

thereof would

prejudice the

interests of

such natural

or juridical

person in

trade,

industrial,

financial or

commercial

competition

The

information is

classified as

privileged

communicatio

ns in legal

proceedings

by law or by

the Rules of

Court.

The

information

requested is

exempted

from

disclosure by

law or by the

Constitution,

in addition to

those

provided in

this section

The

information

has already

been made

accessible as

provided in

Section 13 of

this Act.

Notable Sec. 13 – Mandatory Sec. 8 – Mandatory Sec. 8 – Mandatory

75

Provisions Disclosure of

Transactions

Involving Public

Interest -Subject to

Sections 7 and 8 of

this Act, all

government agencies

shall post on their

bulletin boards and

upload on their

websites all the steps,

negotiations and key

government positions

pertaining to definite

propositions

of the government, as

well as the contents

of the contract,

agreement or treaty

in the following

transactions

involving public

interest.

SEC. 14. Promotion

of Openness in

Government. -(a)

Duty to Publish

Information -

Government agencies

shall regularly

publish and

disseminate, at

no cost to the public

and in an accessible

form, by print and

through their

wehsite, timely, true,

accurate and updated

key information

Improving

Capability -

Every

government

agency shall

Disclosure of

Information a) the

annual Statement of

Assets, Liabilities, and

Net Worth (SALN) of

the President, the Vice-

President, the Members

of the Cabinet, the

Members of the Senate

and the House of

Representatives,

Justices of the Supreme

Court, Commissioners

of the Constitutional

Commissions and other

constitutional offices,

and the officers of the

Armed Forces with the

rank of general or the

equivalent flag rank

b) All agencies of all

branches of

government shall

publish on their

websites a register of

the Freedom of

Information Manual in

full, Rules of Procedure

and rules of general

applicability, and

public interest

documents or records.

The register shall

contain a brief

description of the

transaction involved,

including the nature

and object of

transaction, the parties

and amounts involved,

the key steps

undertaken towards its

conclusion, and the

relevant dates provided

that contracts involving

Disclosure of

Information a) the

annual Statement of

Assets, Liabilities,

and Net Worth

(SALN) of the

President, the Vice-

President, the

Members of the

Cabinet, the

Members of the

Senate and the House

of Representatives,

Justices of the

Supreme Court,

Commissioners of the

Constitutional

Commissions and

other constitutional

offices, and the

officers of the Armed

Forces with the rank

of general or the

equivalent flag rank

b) All agencies of all

branches of

government shall

upload on their

websites, which shall

be updated monthly,

a register of the

following public

interest transactions,

documents or records

including the annual

budget of government

agencies, itemized

monthly collections

and disbursement,

summaries of

income, components

of the IRA utilization,

annual procurement

plans and

procurement lists,

76

ensure the

provision of

adequate

training for its

officials to

improve

awareness of

the right to

information

and the

provisions of

this Act, and

to keep

updated of

best practices

in relation to

information

disclosure,

records

maintenance

and archiving.

an amount of at least

Fifty Million Pesos

(P50,000,000.00) shall

be published in full of

the site of the

concerned government

agency or the Official

Gazette Online.

Sec. 9 – Promotion of

Openness in

Government –

Government agencies

shall regularly publish,

print, and disseminate

at no cost true,

accurate, and updated

key information

Sec. 11 – Additional

Protection of Privacy –

the Act affords full

protection of the right

to privacy of

individuals

Sec. 20 – Keeping of

Records – Government

agencies shall create

and maintain accurate

and reasonably

complete

documentation of their

organization, policies,

transactions, decisions,

resolutions, enactions,

et. al. Agencies shall

coordinate with the

National Archives of

the Philipipnes to keep

and or transfer records.

Sec. 21 – Publication

in the Official Gazette

– documents uploaded

on the website of the

and items to bid,

among others (see 7-

18)

The register

shall contain a

brief

description of

the

transaction

involved,

including the

nature and

object of

transaction,

the parties and

amounts

involved, the

key steps

undertaken

towards its

conclusion,

and the

relevant dates

provided that

contracts

involving an

amount of at

least Fifty

Million Pesos

(P50,000,000.

00) shall be

published in

full of the site

of the

concerned

government

agency or the

Official

Gazette

Online.

Each

government

agency shall

regularly

77

Official Gazette will be

considered official

provided there is a

timestamp

publish and

disseminate a

People’s

Ownership of

Government

Information

Manual in

full, a

description of

its mandate,

structure, its

frontline

services,

SALNs of

public

officials, work

programs,

development

plans,

investment

plans,

projects,

important

rules and

regulations,

etc.

Sec. 9. Protection of

Privacy - While

providing for access

to information in

public records, this

Act also affords full

protection of the right

to privacy of

individuals.

Sec. 10. People's

Ownership of

Government

Information Manual.

- (A) For the effective

implementation of

this Act, all

government agencies

shall prepare a

78

People's Ownership

of Government

Information Manual

Sec. 16. Keeping of

Records. - (A)

Government agencies

shall create and/or

maintain in

appropriate formats,

accurate and

reasonably complete

documentation or

records of their

organization,

policies, transactions,

decisions,

resolutions,

enactments, actions,

procedures,

operations, activities,

communications and

documents received

or filed with them

and the data

generated or

collected…

Sec. 17. Publication

in the Official

Gazette. For purposes

of mandatory

disclosure as

provided in Section 8

of this Act, online

publication in the

Official Gazette

website shall be

considered official

publication provided

there shall be a

timestamp in the said

document.

Sec. 23.

Appropriations. - The

79

amount necessary to

carry out the

provisions of this Act

shall be charged

against the agencies'

current budget

Liabilities Sec. 15 - Criminal

Liability - The

penalty of

imprisonment of not

less than six (6)

months but not more

than one (1) year,

with the accessory

penalty of suspension

from office for the

same duration, shall

be imposed upon:

(a) Any public

officer or employee

receiving the request

under Section 9of this

Act who shall

knowingly refuse or,

because of gross

negligence, fail to

promptly forward the

request to the public

officer responsible

for officially acting

on the request when

such is the direct

cause of the failure to

disclose the

information within

the periods required

by this Act...

Sec. 16. Strict

CivilLiability. - In

case a request for

information is denied

and subsequently

reversed by final and

executory judgment

of the Ombudsman or

Sec. 12 -

Administrative Liability

– gross neglect of duty

shall constitute grounds

for administrative and

disciplinary sanction

against any public

official or employee

who wilfully and

knowingly refuses to

promptly forward a

request, fails to act on

the request within the

given time periods,

claims an exception

under Sec. 7 when the

claim is manifestly

devoid of factual or

legal basis, refuses to

comply with the

decision of his

immediate supervisor

ordering the release of

information, approves

policies, rules, and

regulations contrary to

the provisions of this

Act

Sec. 13 – Criminal

Liability – any public

official who falsely

denies or conceals the

existence of

information mandated

for disclosure under

this Act shall be liable

for the crime of

removal, concealment,

or destruction of

Sec. 18.

Administrative

Liability. - The acts

enumerated in this

Section shall be

tantamount to grave

administrative

offenses and shall

constitute grounds for

administrative and

disciplinary sanction

against any public


who wilfully and

knowingly commits

the following: (a)

Refusal to promptly

forward the request

under Section of this

Act to the public

officer within the

same office or agency

responsible for

officially acting on

the request when

such is the direct

cause of the failure to

disclose the

information within

the periods required

by this Act; (b)

Failure to act on the

request within the

periods required by

this Act; (c) Refusal

to comply with the

decision of his

immediate

supervisor, the

Ombudsman, or of

80

the courts, the

government agency

shall be liable to pay

the

requester damages in

the amount of one

thousand pesos (P

1,000.00) per day

from the date of

notice of denial until

the date of

compliance with the

request, which

amount shall be

automatically

appropriated. The

public officer or

employee: and the

private individual

responsible for the

denial shall be

solitarily liable with

the government

agency, unless he can

prove that such denial

was made without

fault or negligence, or

was not done

arbitrarily or in

manifest bad faith.

The liability under

this section shall be

without prejudice to

actual, moral and

exemplary damages

that may be

adjudicated under the

law.

documents as defined

under Article 226 of

the Revised Penal Code

any court ordering

the release of

information;

(d) Approval of

policies, rules and

regulations clearly

contrary to the

provisions of this

Act, and which

policies, rules and

regulations are the

direct cause of the

denial of a request for

information.

SEC. 19. Criminal

Liability. - (A) Any

public official or

employee who falsely

denies or conceals the

existence of

information which is

a proper subject for

disclosure under this

Act shall be liable for

the crime of removal,

concealment or

destruction of



the Revised Penal

Code. (B) Any public


who destroys, or

causes to be

destroyed,

information and/or

documents being

requested under this

Act, for the purpose

of frustrating the

requesting party's

access thereto, shall

be liable for the crime

of removal.

concealment or

81

destruction of



the Revised Penal

Code. (C) Any

individual who

knowingly directed,

induced or caused the

commission of the

foregoing acts shall

be liable as principal

by inducement in the

prosecution of public

officials or

employees under this

section.

(D) The penalty of

arresto mayor shall

be imposed upon any

public officer or

employee responsible

for officially acting

on the request, who

shall claim an

exception under

Section 7 of this Act,

or under the

Constitution, when

such claim is

manifestly devoid of

factual basis.

SEC. 21. Mere

Denial in Good Faith

Not a Ground for

Liability. - A mere

denial in good faith

of a request made

pursuant to the

provisions of this Act

shall not constitute

grounds for

administrative, civil

or criminal liability

Action

taken

Killed Killed Approved on third

reading

82

Table 9 is a summary of comments at the changes made by Malacanang in the

Tanada bill (HB 53), as released by the Right to Know, Right Now! (R2KRN) Coalition.

Malacanang released its first version of the FOI bill in May 3, 2011. R2KRN stated that a

lot of the provisions inserted by Malacanag have been lifted from the United States

version of the FOIA, and are ambiguous when applied in the Philippine setting. Further,

the National Union of Journalists of the Philippines said the Palace had even “expanded”

the list of exemptions from the FOI. Malacanang released another version of its bill in

February 3, 2012. After several consultations, the coalition and authors of the bill were

able to strike a compromise, and have come up with HB 6766.

Table 9. Comparison of Tanada bill and first Malacanang version

(Right to Know, Right Now Coalition, 2011)

Tanada Bill (HB 53) Malacanang Issued Bill

(2011)

Improvements (basis) The assistance to

persons who are

illiterate or with

disability

The introduction of a

tracking system for

requests

The expansion of the

information for

mandatory disclosure

Exception: National

security

The Tañada version

attempted to limit national

security to national

defense, in view of the

general tendency of

governments to give

national security an

The Malacañang version

inserted “national security”

in Section 7 (a)

83

overbroad scope and

meaning

Exception: Deliberative

process privilege

Section 6 limited the

availability of the

right to information

only from when a

decision on

government policy

had been taken. It

contradicted the

constitutional

guarantee.

The new exception

under Section 7 (d)

on inter-agency or

intra-agency

memoranda was

copied from

exception 5 of the US

FOIA, which is stated

in opaque language

The new exception

under Section 7 (e)

on records of minutes

and advice and

opinion given during

decision-making or

policy formulation

was a more detailed

version of (d). It was

also copied from the

US FOIA.

Burden of proof With burden of proof Deleted burden of proof in

Section 5

Public interest override With public interest

provision

Deleted public interest

provision in Section 9

Notice of denial Identification needed for

proper attribution of the act Deleted the

requirement of the

specification of the

name, rank, title or

position of the person

making the denial of

a request in Section

11

Centralized

notification to an

84

“Information

Committee”

Information Commission In terms of legislative

history, early versions had

provisions for

an independent information

commission. However,

earlier Congresses resisted

the creation of any new

bodies in view of its fiscal

impact. Various alternative

existing institutions were

explored, and the best fit

was the Office of the

Ombudsman given its

broad Constitutional

powers and mandate.

Removed recourse to the

Ombudsman and replaced it

with the Information

Commission, which wsn’t

independent, rather it was

attached to the Office of the

President

Sanctions for violation of

right to information

Removed the criminal

liability for the acts

identified under Section 18

of Tanada’s Bill

85

VI. SUMMARY AND RECOMMENDATIONS

A. Summary

In the objectives of this study, the researchers aimed (1) to trace the history of the

FOI bill since it was first introduced in 1992, (2) to find out the various experiences that

the FOI bill went through under various administrations, and (3) to identify the factors

that have led to the non-passage of the FOI bill.

With regard to the first and second objectives, the researchers found that the

history of the FOI bill started with the filing of Sen. Alberto G. Romulo of the “Freedom

of Access to Information Act” in 1992. A number of similar bills have succeeded it in the

following congresses, which have not been given due attention by the media and the

lawmakers themselves. By the end of the 11th

Congress, various civil society groups

decided to engage Congress in discussions on the bill, which resulted to the first FOI bill

drafted from a consultation effort. These civil society groups later formed the Access to

Information Network (ATIN) before expanding and being formally known as the Right to

Know, Right Now! (R2KRN) coalition. The coalition made sure the bill took off in the

12th

and 13th

Congresses, but the time was not ripe for the bill to go beyond second

reading. Things took an interesting turn during the 14th

Congress, under the term of

former president Gloria Macapagal-Arroyo, who has been infamously involved in the

“Hello Garci” election scuffle. It was in this congress when a bill filed in the lower house

got its farthest, to its third and final reading, before it was killed due to several delays.

The bill was off to a promising start in the 15th

Congress, with newly elected president

Benigno “Noynoy” Aquino III pledging support for its passage. However, this support

proved to be lukewarm as the 15th

Congress unfolded. Though the Senate swiftly passed

86

their version of the bill, the House of Representatives was conflicted between passing a

“genuine” version of the bill, delaying tactics, and arguments regarding Right of Reply.

With all these and other interruptions coming into account, the Freedom of Information

bill has perished in the 15th

Congress, to be resurrected yet again.

As for the third objective, four factors have been identified namely, (1)

presidential support, (2) public clamour, (3) debates on the Right of Reply and finally (4)

the legislative body itself. The bill’s advocates understand that there is still a lot of room

for growth in the House, especially since many of the sitting representatives come from

political dynasties. According to Batario, because the congress is controlled by the elite,

it’s still difficult for them to share power in the form of an FOI law, especially if they

have been in power for centuries.

The coalition may have reached out to different sectors already but there may still

be a need for the “unaffiliated” to demand from their legislators the passage of the FOI.

With support from the interviews, the writers deemed, however, that the most

salient hindrance to the passage of an FOI bill is the distinct and aggressive resistance in

the House of Representatives. The lower house has been the bill’s greatest antagonist as

its members fear the consequences of a legislated call to transparency. This is most

evident in the way the bill has been destroyed in the 14th

Congress; in the way it has been

deterred in the 15th

, and in the House’s reflex to protect itself through the insertion of a

provision on Right of Reply.

Lingao added that what the FOI needs is a congress that is proactive and

progressive. “You're talking about a chamber of fence sitters who'd rather err on the side

87

of conservatism especially when it comes to divulging information about them,” he said.

“The best proof of that is the SALN. The senators have all released their SALNS, the

executive has released their SALN, congress, you could not get them to release their

SALNs. Not as a group, and not individually.”

Also, it can be therefore concluded that in the country’s political system, there is

an apparent over-reliance on the whims of the President. In an ideal democracy, the

executive, judicial, and legislative branches of government should function efficiently,

coequally, and independently, which cannot be held true for this government, as the

lower house clearly made apparent. The House has always been waiting for “a clear voice

from Olympus,” for the bill to be certified urgent, for the president to “crack the whip,”

in order to act swiftly on the passage of the FOI bill.

B. Recommendations

The researchers have a two-fold recommendation for the improvement of this

study and the furtherance of the bill: one addressed to their fellow students, and the other

to the civil society organizations engaged in the campaign for FOI.

1. For students

For those who plan to delve further into this topic, the researchers recommend

conducting more interviews with the original bill’s proponents to ascertain details such as

their motivations for filing the bill, and the differences in the bill’s reception in the

88

political atmosphere during the time it was filed. Despite the researchers’ persistence, the

bill’s oldest proponents have not been reached due to constraints in time and resources.

Another method would be to look into more newspapers to see how the media has given

attention to the bill, given that the bill’s institution establishes ease in the way they

acquire information. An investigative study can also be made on what the opponents of

the bill in the House might have in common, such as having unexplained wealth or

belonging to political dynasties, and why these commonalities give them reason to

actively oppose efforts in transparency.

The researchers also advise having a more unified effort in pushing for the bill

within their campus, since the UP Community, like the rest of the citizenry, would

benefit from an FOI bill. A number of student groups have already expressed their

concern for the passage of the FOI, holding dialogues and fora to engage students.

However, only politically-inclined organizations have been active in the bill’s campaign.

For the bill to be understood and fought for by more students in campus, and for the

drafting of a bill that would cater to the needs of more people, a solid, cohesive,

consultative body with a more diverse student composition must be formed. The

researchers also believe that as Centers of Excellence in Journalism and Communication

Research, the UP College of Mass Communication must take initiative in pushing for a

bill that affirms their watchdog role in society. As a premiere institution that champions

transparency and accountability, the college must participate in consultations, lobbying

efforts, and awareness campaigns on FOI.

89

2. For FOI proponents and civil society supporters

As for the proponents and supporters of the bill, both in and outside the

government, there is a need to improve the tactics in campaigning for the passage of the

FOI. The researchers agree with their interviewees that the concept of FOI must be easily

understood by the “common people,” those who are outside legislation, the academe, and

non-government organizations. Ordinary citizens must understand the importance and the

need of the FOI bill in their lives in order that they, too, can make it their own campaign.

With more citizens joining the campaign for its passage, then there are greater chances of

it being passed.

In their guide for civil society organizations, the United Nations suggested several

mechanisms to strengthen citizen participation, such as (1) Networking, or the forming of

‘policy watch groups’ for tracking legal and legislative developments, which has been

actualized through the R2KRN coalition; (2) Awareness Generation, or the promotion of

equity “by helping vulnerable and disadvantaged groups, including people living in

poverty and other low-income groups in using the Right to Information to realize their

rightful entitlements;” (3) Capacity building, or the development of program procedure

and implementation; and (4) the Effective use of the media – in bringing to light

substantiated reports on service delivery issues, and in perpetuating the message of the

need for an FOI in a democracy through the available and most effective media. (The

Right to Information Act: A Guide for Civil Society Organizations, 2005) Because of the

ubiquity of radio and television, and the growing number of people on the Internet, the

researchers suggest a more stringent advertising campaign on television, radio, and social

media.

90

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people to demand rights through knowledge. New Delhi: Commonwealth Human

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communicationtheory.org (2011). Shannon and Weaver model of communication.

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(Sweden/Finland 1766). Scribd. Retrieved September 18, 2012, from

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Act-SwedenFinland-1766

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house-could-be-exposed-by-foi

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(n.d.). Institute for Freedom of Information. Retrieved September 18, 2012, from

http://ifoi.ph/manifesto-of-bantay-foi-sulong-foi-network/

McQuail, D. (2002). McQuail’s reader in mass communication theory. London: Sage.

Mendel, T., & Unesco, N. D. (2008). Introduction. Freedom of information: a

comparative legal survey (2nd ed., p. 4). New Delhi: UNESCO.

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congress kills FOI bill. In PJR Reports. Makati: Center for Media

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(Eds.), Freedom of speech abridged?: Cultural, legal and philosophical challenges.

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Investigative Journalism.

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Right to Know, Right Now Coalition (2012, 5 September). Kill Bill take 2? FOI death by

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death-by-inaction-looms-in-congress/

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School of Public Policy. Retrieved February 1, 2013 from

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content/uploads/2011/10/Fringe-Special-Overview-FOIA-oct-2011.pdf

CONGRESS OF THE PHILIPPINESFOURTEENTH CONGRESSFirst Regular Session

HOUSE OF REPRESENTATIVES

H. No. 3732

BY REPRESENTATIVES ANGARA, DEL MAR, VILLANUEVA, CRUZ-GONZALES, ABAYA, TALIÑO-MENDOZA, TAÑADA, DE GUZMAN, GONZALES (A.), OCAMPO, CASIÑO, PABLO, HONTIVEROS-BARAQUEL, COQUILLA, FUA, TEODORO, CHATTO, MAZA, BELTRAN, ILAGAN, ABANTE, CODILLA, DAZA, ALCALA, BIAZON, UMALI (A.), CUA (J.), UY (R.A.), DEL ROSARIO, PINGOY, LAGMAN, OLAÑO, CAJAYON, JOSON, SOON-RUIZ, GARAY, SANDOVAL, MANDANAS, HATAMAN, ABLAN, AGBAYANI, AGGABAO, AGYAO, ALFELOR, ALMARIO, ALVAREZ (A.), AMATONG, ANGPING, APOSTOL, AQUINO, ARAGO, ARENAS, ARNAIZ, ARROYO (D.), ARROYO (I.), ASILO, BAGATSING, BALINDONG, BARZAGA, BINAY, BIRON, BONDOC, BONOAN-DAVID, BRIONES, BULUT, CABILAO, CAGAS, CASTELO DAZA, CASTRO, CAYETANO, CELESTE, CERILLES, CHIPECO, CHONG, CLARETE, CLIMACO, COSCOLLUELA, CRISOLOGO, CUA (G.), CUENCO, DATUMANONG, DEFENSOR (A.), DEFENSOR (M.), DIAZ, DILANGALEN, DIMAPORO, DOMOGAN, DUAVIT, DUMARPA, DURANO, DY, ENVERGA, ESCUDERO, ESTRELLA (C.), FABIAN, FERNANDEZ, FERRER, FUENTEBELLA, GARCIA (A.), GARCIA (P.), GARCIA (V.), GARIN, GATCHALIAN, GATLABAYAN, GO, GOLEZ, GONZALES (N.), GONZALEZ, GULLAS, GUNIGUNDO, HOFER, JAAFAR, JALA, JAVIER, JIKIRI, KHO, LACSON, LAGDAMEO, LAPUS, LIM, LOPEZ, MADRONA, MAGSAYSAY, MAMBA, MANGUDADATU, MARAÑON, MARCOS, MATUGAS, MERCADO, MITRA, NAVA, NICOLAS, NOEL, NOGRALES, ONG, ORTEGA, PADILLA, PANCHO, PANCRUDO, PICHAY, PIÑOL, PLAZA, PRIETO-TEODORO, PUNO, RAMIRO, REMULLA, REYES (V.), ROBES, RODRIGUEZ, RODRIGUEZ-ZALDARRIAGA, ROMAN, ROMARATE, ROMUALDEZ, ROMULO, SALVACION, SANTIAGO (J.), SANTIAGO (N.), SILVERIO, SINGSON (E.), SINGSON (R.), SUAREZ, SUSANO, SY-

}

LIMKAICHONG, TEVES, TIENG, TUPAS, UNGAB, UY (E.), UY (R.S.), VARGAS, VELARDE, VILLAFUERTE, VILLAROSA, VINZONS-CHATO, VIOLAGO, YAP, YU, ZAMORA (M.), ZAMORA (R.), ZIALCITA AND ZUBIRI, PER COMMITTEE REPORT NO. 331

AN ACT IMPLEMENTING THE RIGHT OF ACCESS TO INFORMATION ON MATTERS OF PUBLIC CONCERN GUARANTEED UNDER SECTION TWENTY-EIGHT, ARTICLE II AND SECTION SEVEN, ARTICLE III OF THE 1987 CONSTITUTION AND FOR OTHER PURPOSES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:

SECTION 1. Title. – This Act shall be known as the “Freedom of

Information Act of 2008”.

SEC. 2. Declaration of Policy. – The State recognizes the right of the

people to information on matters of public concern, and adopts and implements

a policy of full public disclosure of all its transactions involving public interest,

subject to limitations provided by this Act. This right is indispensable to the

exercise of the right of the people and their organizations to effective and

reasonable participation at all levels of social, political and economic decision-

making.

SEC. 3. Coverage. – This Act shall cover all government agencies as

defined in Section 4 of this Act.

SEC. 4. Definition of Terms. – As used in this Act:

(a) “Information” shall mean any knowledge, record, document,

paper, report, letters, contract, minutes and transcripts of

official meetings, maps, books, photographs, data, research

material, film, sound and video recordings, magnetic or other

tapes, electronic data processing records, computer stored

2

data, or any other like or similar data or material recorded,

stored or archived in whatever form or format, which are

made, received or kept in or under the control and custody of

any government agency pursuant to law, executive order, rules

and regulations, ordinance or in connection with the

performance or transaction of official business by any

government agency.

(b) “Government agency” shall include the executive, legislative

and judicial branches as well as the constitutional bodies of the

Republic of the Philippines including, but not limited to, the

national government and all its agencies, departments,

bureaus, offices and instrumentalities, constitutional

commissions and constitutionally mandated bodies, local

governments and all their agencies, regulatory agencies,

chartered institutions, government-owned or -controlled

corporations, government financial institutions, state

universities and colleges, the Armed Forces of the Philippines,

the Philippine National Police, all offices in the Congress of

the Philippines including the offices of Senators and

Representatives, the Supreme Court and all lower courts

established by law.

(c) “Official records” shall refer to information produced or

received by the public officer or employee, or by a government

agency in an official capacity or pursuant to a public function

or duty, and is not meant to be a stage or status of the

information.

3

(d) “Public records” shall include information required by law to

be entered, kept and made publicly available by a government

agency such as, but not limited to, the:

(1) Office of the Civil Registry;

(2) National Statistics Office;

(3) Register of Deeds;

(4) Land Transportation Office;

(5) Land Transportation Franchising and Regulatory Board;

(6) Securities and Exchange Commission;

(7) Intellectual Property Office; or

(8) Business Permits and Licenses Office and Assessor’s Office of the

various local government units.

SEC. 5. Presumption. – There shall be a legal presumption in favor of

access to information. Accordingly, government agencies shall have the burden

of proof of showing by clear and convincing evidence that the information

requested should not be disclosed.

SEC. 6. Access to Information. – Government agencies shall make

available to the public for scrutiny, copying and reproduction in the manner

provided by this Act, all information pertaining to official acts, transactions or

decisions, as well as government research data used as basis for policy

development, regardless of their physical form or format in which they are

contained and by whom they were made.

SEC. 7. Qualifications. – Even if the information falls under the

exceptions set forth in the succeeding section, access to information shall not

be denied if:

(a) The information may be reasonably severed from the body of

the information which would be subject to the exceptions; or

4

(b) The public interest in the disclosure outweighs the harm to

the interest sought to be protected by the exceptions.

SEC. 8. Exceptions. – Subject to the qualifications set forth in

Section 7: Provided, That the information is specifically designated and

described, and the facts and reasons for preserving the confidentiality are

precisely and specifically recited, and: Provided, further, That such

information shall be available to either House of Congress at all times, access

to information may be denied when:

(a) The revelation of the information will create a clear and

present danger of war, invasion or any external threat to the

State as determined by the Office of the President and/or the

Secretary of the Department of National Defense: Provided,

That the Supreme Court may, upon complaint by any citizen,

inquire into the sufficiency of the factual basis for such

determination;

(b) The information pertains to the foreign affairs of the

Republic of the Philippines, when its revelation would

unduly weaken the negotiating position of the government in

an ongoing bilateral or multilateral negotiation or seriously

jeopardize the diplomatic relations of the Philippines with

one or more states with which it intends to keep friendly

relations, except that such information must always be

accessible to either House of Congress;

(c) The information pertains to internal and external defense and

law enforcement, when the revelation thereof would render a

legitimate military operation ineffective, unduly compromise

the prevention, detection or suppression of a criminal

activity, or endanger the life or physical safety of

5

confidential or protected sources or witnesses, law

enforcement and military personnel or their immediate

families. Information relating to the details of the

administration, budget and expenditure, and management of

the defense and law enforcement agencies shall always be

accessible to the public;

(d) The information pertains to the personal information of a

third party natural person, unless it forms part of a public

record, or the third party is or was an official of a

government agency and the information relates to his or her

public function;

(e) The information pertains to trade, industrial, financial or

commercial secrets of a third party natural or juridical

person, obtained in confidence by a government agency

whenever the revelation thereof would seriously prejudice

the interests of the third party in trade, industrial, financial or

commercial competition, unless the third party has consented

to the disclosure of the information;

(f) The information is privileged from production in legal

proceedings by law or by the Rules of Court, unless the

person entitled to the privilege has waived it;

(g) The information is exempted by statutes of Congress, in

addition to those provided in this section;

(h) The information is obtained by any committee of either

House of Congress in executive session; and

(i) Drafts of decisions of any executive, administrative, judicial

or quasi-judicial body in the exercise of their adjudicatory

functions are being requested.

6

SEC. 9. Procedure of Access. – (a) Any person who wishes to obtain

information shall submit a request to the government agency concerned, as

much as practicable in writing or through electronic means, reasonably

describing the information required, the reason for the request of the

information and the means by which the government agency shall

communicate such information to the requesting party.

(b) The request shall be stamped by the government agency, indicating

the date and time of receipt and the name, rank, title and position of the

receiving public officer or employee with the corresponding signature, and a

copy thereof furnished to the requesting party. In case the request is submitted

by electronic means, the government agency shall provide for an equivalent

means by which the requirements of this paragraph shall be met.

(c) The request may indicate the following preferred means of

communication:

(1) A true copy of the information in permanent or other form;

(2) An opportunity to inspect the information, using equipment

normally available to the government agency when necessary;

(3) An opportunity to copy the information using personal equipment;

(4) A written transcript of the information contained in a sound or

visual form;

(5) A transcript of the content of an information, in print, sound or

visual form, where such transcript is capable of being produced

using equipment normally available to the government agency; or

(6) A transcript of the information from shorthand or codified form.

(d) A government agency may communicate information in a form

other than the preferred means whenever such preferred means would

unreasonably interfere with the effective operation of the agency, or be

detrimental to the preservation of the record.

7

(e) The government agency shall comply with such request within ten

(10) calendar days from the receipt thereof.

(f) The time limits prescribed in this section may be extended during

unusual circumstances where, in the production of the requested information,

there is a need:

(1) To search for and collect the requested information from

field facilities or other establishments that are separate from

the office processing the request;

(2) To search for, collect and appropriately examine a

voluminous amount of separate and distinct information

which are demanded in a single request;

(3) For consultation, which shall be conducted in all practicable

speed, with another government agency or among two (2) or

more components of the government agency having

substantial interest in the determination of the request; and

(4) To consider fortuitous events or other events due to force

majeure or other analogous cases.

(g) The government agency shall, in writing or through electronic

means, notify the person making the request of the extension, setting forth the

reasons for such extension and the date when the information shall be made

available: Provided, That no such notice shall specify a date that would result

in an extension of more than fifteen (15) calendar days.

SEC. 10. Access Fees. – Government agencies may charge a reasonable

fee to reimburse the cost of searching, reproduction, copying or transcription

and the communication of the information requested.

SEC. 11. Notice of Denial. – If the government agency decides to deny

the request, in whole or in part, it shall, within ten (10) calendar days from the

receipt of the request, notify the person making the request of such denial in

8

writing or through electronic means. The notice shall clearly indicate the name,

rank, title or position of the person making the denial, and the grounds for the

denial. In case the denial is by reason of a claimed exception, the denial shall

also state clearly the legitimate aim or interest sought to be protected in the

confidentiality, and the facts and circumstances invoked showing the

substantial harm to, or frustration of, the legitimate aim or interest that will

result in the disclosure of the information. Failure to notify the person making

the request of the denial, or of the extension, shall be deemed a denial of the

request for access to information.

SEC. 12. Remedies in Cases of Denial. – (a) In the executive and

legislative branches and the constitutional bodies –

(1) Every denial of any request for access to information may be

appealed to the person or office next higher in authority,

following the procedure provided in the guidelines as

required by Section 17 of this Act: Provided, That the appeal

must be filed within fifteen (15) calendar days from the

notice of denial and must be decided within fifteen (15)

calendar days from filing. Failure of the government agency

to decide within the aforestated period shall constitute a

denial of the appeal; and

(2) Instead of appealing or after the denial of the appeal, the

person denied access to information may, within fifteen (15)

calendar days from the original denial or denial of the

appeal, file a verified complaint with the Office of the

Ombudsman, praying that the government agency concerned

be directed to immediately afford access to the information

being requested. Such complaint shall be resolved by the

Office of the Ombudsman within sixty (60) calendar days

9

from filing or earlier, when time is of the essence, taking into

account such factors as the nature of the information

requested, context of the request, public interest and danger

that the information requested will become moot.

(b) In the Judicial Branch – The Supreme Court shall promulgate the

remedies that would govern offices under its jurisdiction.

(c) The remedies under this section are without prejudice to any

other administrative, civil or criminal action covering the

same act.

(d) The remedies available under this Act shall be exempt from

the rules on non-exhaustion of administrative remedies and

the application of the provisions of Republic Act No. 9285,

otherwise known as the Alternative Dispute Resolution Act

of 2004.

(e) The Office of the Ombudsman shall promulgate its rules of

procedure to effect the purposes of this Act.

(f) Unless restrained or enjoined, the decisions of the Office of

the Ombudsman shall be immediately executory, without

prejudice to review in accordance with the Rules of Court.

(g) In case the requester has limited or no financial capacity, the

Public Attorney’s Office shall be mandated to provide legal

assistance to the requester in availing of the remedies

provided under this Act.

SEC. 13. Mandatory Disclosure of Transactions Involving Public

Interest. – Subject to Sections 7 and 8 of this Act, all government agencies

shall post on their bulletin boards and upload on their websites all the steps,

negotiations and key government positions pertaining to definite propositions

10

of the government, as well as the contents of the contract, agreement or treaty

in the following transactions involving public interest:

(a) Compromise agreements entered into by a government

agency with any person or entity involving any waiver or its

rights or claims;

(b) Private sector participation agreements or contracts in

infrastructure and development projects under Republic Act

No. 6957, as amended by Republic Act No. 7718,

authorizing the financing, construction, operation and

maintenance of infrastructure projects;

(c) Procurement contracts entered into by a government agency;

(d) Construction or concession agreements or contracts entered

into by a government agency with any domestic or foreign

person or entity;

(e) Loans, grants, development assistance, technical assistance

and programs entered into by a government agency with

official bilateral or multilateral agencies, as well as with

private aid agencies or institutions;

(f) Loans from domestic and foreign financial institutions;

(g) Guarantees given by any government agency to government-

owned or -controlled corporations and to private

corporations, persons or entities;

(h) Public funding extended to any private entity;

(i) Bilateral or multilateral agreements and treaties in defense,

trade, economic partnership, investments, cooperation and

similar binding commitments; or

11

(j) Licenses, permits or agreements given by any government

agency to any person or entity for the extraction and/or

utilization of natural resources.

SEC. 14. Promotion of Openness in Government. – (a) Duty to Publish

Information – Government agencies shall regularly publish and disseminate, at

no cost to the public and in an accessible form, by print and through their

website, timely, true, accurate and updated key information including, but not

limited to:

(1) A description of its structure, powers, functions, duties and

decision-making processes;

(2) A description of the frontline services it delivers and the procedure

and length of time by which they may be availed of;

(3) Work programs, development plans, investment plans, projects,

performance targets and accomplishments, and budgets, revenue

allotments and expenditures;

(4) Important rules and regulations, orders or decisions;

(5) Current and important database and statistics that it generates;

(6) Bidding processes and requirements;

(7) Mechanisms or procedures by which the public may participate in

or otherwise influence the formulation of policy or the exercise of

its powers; and

(8) A guide on accessing information containing adequate information

about its record-keeping system, the types of information it holds

and/or publishes, the procedure for obtaining access by the public

to such information, the person or office responsible for receiving

the request and routing it to the person or office with the duty to act

on the request, the standard forms and procedure for request, and

the schedule of access fees.

12

(b) Keeping of Records – Government agencies shall maintain and

preserve their records in a manner that facilitates easy identification, retrieval

and communication to the public. They shall establish Management

Information Systems (MIS) to strengthen their capability to store, manage and

retrieve records, and to facilitate access to public records. The following shall

not be destroyed:

(1) Records pertaining to loans obtained or guaranteed by the

government;

(2) Records of government contracts;

(3) The declaration under oath of the assets, liabilities and networth of

public officers and employees, as required by law;

(4) Records of official investigations on graft and corrupt practices of

public officers; and

(5) Other records where there is a significant public interest in their

preservation or where there is likely to be such interest in the

future.

(c) Accessibility of Language and Form – Every government agency

shall endeavor to translate key information into major Filipino

languages and present them in popular form and means.

(d) Improving Capability – Every government agency shall ensure the

provision of adequate training for its officials to improve awareness of the right

to information and the provisions of this Act, and to keep updated of best

practices in relation to information disclosure, records maintenance and

archiving.

SEC. 15. Criminal Liability. – The penalty of imprisonment of not less

than six (6) months but not more than one (1) year, with the accessory penalty

of suspension from office for the same duration, shall be imposed upon:

13

(a) Any public officer or employee receiving the request under

Section 9 of this Act who shall knowingly refuse or, because

of gross negligence, fail to promptly forward the request to

the public officer responsible for officially acting on the

request when such is the direct cause of the failure to

disclose the information within the periods required by this

Act;

(b) Any public officer or employee responsible for officially

acting on the request, who shall:

(1) Knowingly refuse or, because of gross negligence, fail to act on the

request within the periods required by this Act;

(2) Knowingly deny the existence of existing information;

(3) Deliberately destroy information being requested for the purpose of

frustrating the requester’s access thereto;

(4) Claim an exception under Section 8 of this Act, when the claim is

manifestly devoid of factual basis; or

(5) Refuse to comply with the decision of his immediate supervisor, the

Ombudsman or the court ordering the release of information that is not

restrained or enjoined by a court;

(c) The head of office of the government agency directly and

principally responsible for the negotiation and perfection of

any of the transactions enumerated in Section 13 of this Act,

who shall knowingly refuse or, because of negligence, fails

to direct the mandatory posting or uploading of such

transaction. The same penalty shall be imposed upon the

public officer or employee who, despite a directive from the

head of office, shall knowingly refuse or, because of

14

negligence, fails to post or upload any of the transactions

enumerated in Section 14 of this Act;

(d) Any public officer or employee who shall destroy, or cause

to destroy, records of information covered by Section 14(b)

of this Act;

(e) Any public officer who intentionally formulates policies,

rules and regulations manifestly contrary to the provisions of

this Act, and which policies, rules and regulations are the

direct cause of the denial of a request for information; or

(f) Any public or private individual who knowingly induced or

caused the commission of the foregoing acts under this

section.

SEC. 16. Strict Civil Liability. – In case a request for information is

denied and subsequently reversed by final and executory judgment of the

Ombudsman or the courts, the government agency shall be liable to pay the

requester damages in the amount of One thousand pesos (P1,000.00) per day

from the date of notice of denial until the date of compliance with the request,

which amount shall be automatically appropriated. The public officer or

employee and the private individual responsible for the denial shall be

solidarily liable with the government agency, unless he can prove that such

denial was made without fault or negligence, or was not done arbitrarily or in

manifest bad faith. The liability under this section shall be without prejudice to

actual, moral and exemplary damages that may be adjudicated under the law.

SEC. 17. Guidelines. – (a) For the full implementation of this Act

within the executive branch of the government, the Office of the Press

Secretary, particularly the Philippine Information Agency, shall, through a

consultative process, promulgate within six (6) months from the passage of this

Act, the general guidelines to which the government agencies controlled,

15

supervised or situated under the Office of the President, and shall adhere in the

establishment of their specific guidelines for access to information, which shall

include:

(1) The location of the head, regional, provincial or field offices,

or other established places where the public can obtain

information or submit requests therefor;

(2) The types of information it holds and/or publishes;

(3) The person or office responsible for receiving the request

and for routing it to the person or office with the duty to act

on the request, and the standard forms and procedures for the

request;

(4) The procedure for the administrative appeal of any denial for

access to information; and

(5) The schedule of fees which shall be limited to the reasonable

and standard charges for document search and reproduction,

and the recovery of the direct costs thereof.

Each of the abovementioned government agency, office and

instrumentality shall submit to the Philippine Information Agency a copy of its

guidelines for review to ensure the standardization of the procedure and the

uniformity of fees, without prejudice to the right of the different agencies,

offices and instrumentalities to adopt appropriate procedures for their unique

functions and responsibilities.

(b) The legislative and judicial branches and the constitutional bodies

shall promulgate their own guidelines that would govern offices under their

respective jurisdictions. The Secretary of the Senate, the House of

Representatives’ Secretary General, the head of the Supreme Court Public

Information Office and the public information officers of the constitutional

16

bodies shall be responsible in furnishing copies of their respective guidelines

to the Philippine Information Agency.

(c) The Office of the Ombudsman shall likewise promulgate its special

rules of procedure for the immediate disposition of complaints filed pursuant

to Section 12 of this Act.

In no case shall the absence of the aforementioned guidelines be a

reason for the denial of any request for information made in accordance with

this Act.

SEC. 18. Act Not a Bar to Claim of Right to Information Under the

Constitution. – No provision of this Act shall be interpreted as a bar to any

claim of denial of the right to information under Article III, Section 7 of the

1987 Constitution.

SEC. 19. Separability Clause. – If, for any reason, any section or

provision of this Act is held unconstitutional or invalid, no other section or

provision shall be affected.

SEC. 20. Repealing Clause. – All laws, decrees, executive orders, rules

and regulations, issuances or any part thereof inconsistent with the provisions

of this Act, including Memorandum Circular No. 78 dated 14 August 1964

(Promulgating Rules Governing Security of Classified Matter in Government

Offices), as amended, and Section 3, Rule IV of the Rules Implementing

Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public

Officials and Employees), are deemed repealed.

SEC. 21. Effectivity. – This Act shall take effect fifteen (15) days after

its publication in at least two (2) national newspapers of general circulation.

Approved,

O

17

FIFTEENTH CONGRESS OF THE ) REPUBLIC OF THE PHILIPPINES ) Second Regular Session )

SENATE

S. No. 3208

·i " ~'n,'; : .>,

,/, ':):~H,~,(I:, 11t'!;lfQ

'I! 1111Y:n n ':i :J;:

(In substitution of Senate Bill Nos. 11,25,126,149,158,162,1254,1440,1773,2086. 2189,2283,2354, and 3183)

Prepared by the Committees on Public Information and Mass Media, Civil Service and Government Reorganization and Finance with Senators Trillanes, Revilla, Jr., Osmena III, Pangilinan, Guingona III, Committee on Rules, Villar, Legarda, Santiago, Escudero. Honasan II, Cayetano (A.) and Drilon as authors thereof.

AN ACT 1 FORTIFYING THE PEOPLE'S RIGHT OF OWNERSHIP OVER INFORMATION HELD 2 BY THE PEOPLE'S GOVERNMENT 3 4 5 Be it enacted by the Senate and the House of Representatives of the Philippines III

6 Congress assembled: 7 8 9 SECTION 1. Short Title. - This Act shall be known as the "People's

10 Ownership of Government Information (POGI) Act of 2012."

1 1

12 SEC. 2. Declaration of Policy. - Pursuant to the First Principle declared in Our

13 Constitution that Sovereignty resides in the people and all government authonty

14 emanates from them, the right of the people to effective and reasonable participation at

15 all levels of social, political and economic decision making, the right of the people to

16 information on matters of public concern, and the policy of full public disclosure of all

17 government transactions involving public interest, it is hereby declared that All

18 Government Information is Owned by the People and that public access to all

19 government information, as a general rule, serves the public interest and exceptional

20 instances restricting access thereto, as provided herein, shall only be allowed also by

21 reason of public interest.

22

23 SEC. 3. Coverage - This Act shall cover all branches, departments, and

24 instrumentalities of government, including all local government units, collectively

25 referred to as government agencies defined under Section 4 of this Act, .

26

27 SEC. 4. Definition of Terms. - As used in this Act:

1 (A) "Information" shall mean any record, document, paper, report, letters, contract,

2 minutes and transcripts of official meetings, maps, books, photographs, data, research

3 material, film, sound and video recordings, magnetic or other tapes, electronic data.

4 computer stored data, or any other like or similar data or material recorded, stored or

5 archived in whatever form or format, which are made, received or kept in or under the

6 control and custody of any government agency pursuant to law, executive order, rules

7 and regulations, ordinance or in connection with the performance or transaction of

8 official business by any government agency.

9

10 (S) "Government agency/agencies" shall include the executive, legislative and judicial

11 branches as well as constitutional bodies of the Republic of the Philippines including,

12 but not limited to, the national government and all its agencies, departments, bureaus.

13 offices and instrumentalities, constitutional commissions and constitutionally mandated 9

14 bodies, local governments and all their agencies, regulatory agencies, chartered

15 institutions, government-owned or controlled corporations, including wholly-owned or

16 controlled subsidiaries, government financial institutions, state universities and colleges,

17 the Armed Forces of the Philippines, the Philippine National Police, all offices in the

18 Congress of the Philippines including the offices of Senators and Representatives, the

19 Supreme Court and all lower courts established by law.

20

21 (C) "Official record/records" shall refer to information produced or received by a public

22 officer or employee, or by a government agency in an official capacity or pursuant to a

23 public function or duty, regardless of whether the information is in the draft, final, or any

24 other stage or status.

25

26 (0) "Public record/records" shall include information required by law, executive orders,

27 rules, or regulations to be entered, kept and made publicly available by a government

28 agency.

29

30 SEC. 5. Access to Information. - Every Filipino citizen has a right to and shall, on

31 request, be given access to any record under the control of a government agency

32 Government agencies shall make available to the public for scrutiny, copying and

33 reproduction in the manner provided by this Act, all information pertaining to official

34 acts, transactions or deciSions, as well as government research data used as a basis for

35 policy development, subject to the exceptions enumerated under section 7 of this Act,

36 regardless of their physical form or format in which they are contained and by whom

37 they were made.

SEC. 6. Presumption. - There shall be a legal presumption in favor of access to

2 information. No request for information shall be denied unless it clearly falls under the

3 exceptions provided under this Act.

4

5 SEC. 7. Exceptions. - Access to information shall be granted unless:

6

7 (A) The information is specifically authorized to be kept secret under guidelines

8 established by an executive order, and in fact properly classified pursuant thereto:

9 Provided, That 1) The information directly relates to national security or defense and Its

10 revelation may cause grave damage to the national security or internal and external

11 defense of the State; or 2) The information requested pertains to the foreign affairs of

12 the Republic of the Philippines, when its revelation may weaken the negotiating position

13 of the government in an ongoing bilateral or multilateral negoti<;ltion or seriously.!

14 jeopardize the diplomatic relations of the Philippines with any state; Provided, further,

15 That the executive order shall specify the reasonable period after which the information

16 shall be automatically declassified or subject to mandatory declassification review, and

17 that any reasonable doubt as to classification and declassification shall be settled In

18 favor of the right to information;

19

20 (6) The information consist of records of minutes, records of advice given or records of

21 opinions expressed during decision-making or policy formulation, invoked by the Chief

22 Executive to be privileged by reason of the sensitivity of the subject matter or by reason

23 of the impairment of the Chief Executive's deliberative process that would result from

24 the disclosure thereof. Once policy has been formulated and decisions made, minutes

25 and research data may be made available for disclosure unless they were made in

26 executive session.

27

28 (C) The information requested pertains to internal and/or external defense, law

29 enforcement, and border control, when the disclosure thereof may:

30

31 (i) compromise or interfere with any legitimate military or law enforcement

32 operation, or

33

34 (ii) compromise or interfere with the legitimate prevention, detection or

35 suppression of criminal activity, or the legitimate implementation of immigration controls

36 and border security, or

37

38 (iii) lead to the disclosure of the identity of a confidential source, including a

government, or foreign agency or authority or any private institution which furnished

2 information on a confidential basis, and, in the case of a record or information compiled "

3 by a law enforcement authority in the course of an investigation or by an agency

4 conducting a lawful national security intelligence investigation, information furnished by

5 a confidential source, or

6

7 (iv) disclose legitimate techniques and procedures for law enforcement

8 investigations or prosecutions, or would disclose legitimate guidelines for law

9 enforcement investigations or prosecutions if such disclosure could reasonably be

10 expected to risk circumvention of the law, or

II

12 (v) endanger the life or physical safety of any individual.

13

14

15 (D) The information requested consists of drafts of orders, resolutions, decisions,

16 memoranda or audit reports by any executive, administrative, regulatory, constitutional.

17 judicial or quasi-judicial body in the exercise of their regulatory, audit and adjudicatory

18 function.

19

20 (E) The information requested is obtained by either House of Congress, or any

21 committee thereof, in executive session.

22

23 (F) The information requested pertains to the personal information of a natural person

24 other than the requesting party, and its disclosure would constitute an unwarranted

25 invasion of his or her personal privacy, unless it forms part of a public record, or the

26 person is or was an official of a government agency and the information relates to his or

27 her public function or the person has consented, in writing, to the disclosure of the

28 information;

29

30 (G) The information requested pertains to trade secrets and commercial or financial

31 information obtained from a natural or juridical person other than the requesting party,

32 obtained in confidence or covered by privileged communication, and/or filed with a

33 government agency, whenever the revelation thereof would prejudice the interests of

34 such natural or juridical person in trade, industrial, financial or commercial competition

35

36 (H) The information is classified as privileged communications in legal proceedings by

37 law or by the Rules of Court.

(I) The information requested is exempted from disclosure by law or by the Constitution,

2 in addition to those provided in this section,

3

4 (J) The information has already been made accessible as provided in Section 13 of this

5 Act.

6

7 For letters (c) to 0) of this section, the determination whether any of these grounds shall

8 apply shall be the responsibility of the head of office of the government agency In

9 custody or control of the information, or any responsible central or field officerls duly

10 designated by him: Provided, That:

11 (1) The exceptions are strictly construed;

12 (2) The exceptions are not used to cover-up a crime, wrong-doing, graft, or corruption:

13 (3) The President, the Supreme Court, the Senate, the House of Representatives, and

14 the Constitutional Commissions may waive an exception with respect to information in

15 the custody of offices under their respective supervision or control, when they deem that

16 there is an overriding public interest in disclosure;

17

18 (4) The exceptions do not constitute authority to withhold information from Congress nor

19 authority for the executive branch of a local government unit to withhold information

20 from the legislative body of such local government unit;

21 (5) Whenever the information requested is part of a record, whose other parts are

22 covered by an exception, but may be reasonably severed from a record, the responding

23 official shall either sever the information not covered by the exception and

24 communicated it to the requester, or he shall edit the exempt information and render It

25 suitable for public disclosure and release the record to the requester with a specific

26 identification of the parts which were edited; and

27 (6) Even if the information requested falls under the exceptions set forth in this Section,

28 access to information shall not be denied if public interest in the disclosure of the

29 information outweighs public interest in securing its confidentiality,

30

31 SEC. 8. Mandatory Disclosure of Information. - Government agencies are mandated

32 to regularly disclose the following information in the duration and manner provided

33 hereunder:

34

35 (A) In fulfillment of Article XI, Section 17 of the Constitution, the following national

36 officials shall disclose to the public, through their official website, their Statement of

37 Assets, Liabilities, and Net worth (SALN) on an annual basis:

38 (1) the President;

1

2

3

4

(2) the Vice- President;

(3) the Members of the Cabinet;

(4) the Members of Congress;

(5) the Justices of Supreme Court;

5 (6) the Members of Constitutional Commissions and other constitutional

6 offices; and

7 (7) officers of the armed forces with general or flag rank.

8

9 (B) All agencies of all branches of government shall upload on their websites.

10 which shall be updated monthly, a register of the following public interest transactions,

11 documents or records, including:

12

13 (1) Annual Budget of Government Agencies;

14 (2) Itemized Monthly Collections and Disbursement;

15 (3) Summary of Income and Expenditures;

16 (4) Component of the IRA Utilization;

17 (5) Annual Procurement Plan and Procurement List;

18 (6) Items to Bid;

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

(7) Bid Results on Civil Works, and Goods and Services;

(8) Abstract of Bids as Calculated;

(9) Procurement contracts entered into by a government agency;

(10) Construction or concession agreements or contracts entered into by a

government agency with any domestic or foreign person or entity;

(11) Private sector participation agreements or contracts in infrastructure

and development projects under Republic Act No. 6957, as amended by

Republic Act No. 7718, authorizing the financing, construction, operation

and maintenance of infrastructure projects;

(12) Public funding extended to any private entity;

(13) Bilateral or multilateral agreements and treaties in trade, economic

partnership, investments, cooperation and similar binding commitments; ,! (14) Licenses, permits or agreements granted by any government agency

to any person or entity for the extraction and/or utilization of natural

resources and a list of the grantees;

(15) Guarantees given by any government agency to government-owned

or -controlled corporations and to private corporations, persons or entities;

(16) Loans from domestic and foreign financial institutions;

(17) Loans, grants, development assistance, technical assistance, and

2

3

4

5

6

programs entered into by a government agency with official bilateral or

multilateral agencies, as well as with private aid agencies or institutions.

and

(18) Compromise agreements entered into by a government agency with

any person or entity.

7 The register shall contain a brief description of the transaction involved, including, but

8 not limited to: the nature and object of the transaction, the parties and amounts

9 involved, the key steps undertaken towards its conclusion, and the relevant dates

10 provided that contracts and agreements involving an amount of at least fifty millioll

11 pesos (P50, 000,000.00) shall be uploaded in full on the website of the concerned

12 government agency or the Official Gazette Online. A covered record shall be enrolled In

13 the register not later than 30 working days from its perfection or issuance.

14

15 (C) Each government agency shall regularly publish, print and disseminate at no

16 cost to the public and in an accessible form, in conjunction with Republic Act 9485, or

17 the Anti-Red Tape Act of 2007, and through their website, timely, true, accurate alld

18 updated key information including, but not limited to:

19

20 (1) A People's Ownership of Government Information Manual in full;

21 (2) A description of its mandate, structure, powers, functions, duties and

22 decision-making processes;

23 (3) A description of the frontline services it delivers and the procedure and length

24 of time by which they may be availed of;

25 (4) The names of its key officials, their powers, functions and responsibilities, and

26 their profiles and curriculum vitae;

27 (5) The Statement of Assets and Liabilities of the public officers of the

28 government agency;

29 (6) Work programs, development plans, investment plans, projects, performance

30 targets and accomplishments, and budgets, revenue allotments and

31 expenditures;

32 (7) Important rules and regulations, orders or decisions: Provided, That they be

33 published within fifteen (15) calendar days from promulgation;

34 (8) Rules of procedure, descriptions of forms available or the places at which

35 forms may be obtained, and instructions as to the scope and contents of all

36 papers, reports, or examinations;

37 (9) Substantive rules of general applicability adopted as authorized by law, and

38 statements of general policy or interpretations of general applicability formulated

7

and adopted by the agency, including subsequent amendments;

2 (10) Current and important database and statistics that it generates;

3 (11) Bidding processes and requirements; and

4 (12) Mechanisms or procedures by which the public may participate in or

5 otherwise influence the formulation of policy or the exercise of its powers.

6

7 All government agencies shall over time endeavor and build the capacity and practice to

8 upload in full all other contracts, agreements, or treaties covered under this section.

9 specially those that are of the highest public interest by reason of the amounts involved ! 10 and the impact of the transaction to the public. All government agencies must ensure

11 that they have a compliant website within two (2) years from the effectivity of this Act.

12

13 Should an agency lack the capacity to comply with the website uploading requirement of

14 this section, the agency shall initiate a capacity-building program, coordinate with

15 another appropriate agency, or use an alternative mechanism, to facilitate substantive

16 compliance not later than three (3) years from the effectivity of this Act. The National

17 Computer Center shall monitor all government agency websites and render the

18 appropriate support for their development and full compliance with the requirements oi

19 this Act.

20

21 For purposes of improving capability, every government agency shall ensure the

22 provision of adequate training for its officials to improve awareness of the people's

23 ownership of government information and the provisions of this Act, and to keep

24 updated as to best practices in relation to information disclosure, records maintenance

25 and archiving.

26

27

28 In order to develop accessibility of language and form, every government agency shall

29 endeavor to translate key information into major Filipino languages and present them In

30 popular form and means.

31

32 SEC. 9. Protection of Privacy - While providing for access to information in publiC

33 records, this Act also affords full protection of the right to privacy of individuals, as

34 follows:

35 ! 36 (a) A government agency must ensure that personal information in its custody or under

37 its control is disclosed only as permitted under this Act;

38 (b) A government agency must protect personal information in its custody or under Its

control by making reasonable security arrangements against such risks as unauthorized

2 access, collection, use, disclosure, or disposal;

3

4 (c) An employee, officer or director of a government agency who has access, whether

5 authorized or unauthorized, to personal information in the custody of the agency, must

6 not disclose that information except as authorized under this Act.

7

8 SEC. 10. People's Ownership of Government Information Manual. - (A) For the

9 effective implementation of this Act, all government agencies shall prepare a People's

10 Ownership of Government Information Manual, setting forth the following:

II

12 (1) The location and contact information of the head, regional, provincial and field

13 offices, and other established places where the public can obtain government

14 information or submit requests;

15 (2) The types of information it generates, produces, holds and/or publishes;

16 (3) A description of its record-keeping system;

17 (4) The person or office responsible for receiving requests for information;

18 (5) The procedure for the filing of requests personally, by mail, or through the

19 identified electronic means;

20 (6) The standard forms for the submission of request and for the proper

21 acknowledgment of the request;

22 (7) The process for the disposition of the request, including the routing of the

23 request to the person or office with the duty to act on the request, the decision-

24 making process, and the grant or denial of access and its implementation;

25 (8) The procedure for the administrative appeal of any denial for access to

26 information;

27 (9) The schedule of fees;

28 (10) The process and procedure for the mandatory disclosure of information

29 under Section 8 of this Act: Provided, That should the agency lack the capacity

30 to fully comply therewith, a brief description of its plan to facilitate compliance

31 within three (3) years from the approval of this Act; and

32 (11) Such other information, taking into consideration the unique characteristics

33 of an agency, that will help facilitate the effective implementation of this Act.

34

35 (b) The foregoing information shall also be posted in its website and bulletin boards, and

36 shall be regularly updated;

37

38 (c) In no case shall the absence of the aforementioned Manual be a reason for the

denial of any request for information made in accordance with this Act.

2

3 (d) The heads of each of the departments and agencies may designate liaison units or

4 Committees who shall coordinate with the other units of the agency in implementing this

5 Act. The composition, functions and duties of these liaison units or Committees shall be

6 included in the People's Ownership of Government Information Manual.

7

8 SEC. 11. Procedure of Access. - (A) Any person who wishes to obtain information

9 shall submit, free of charge, a request to the government agency concerned personally,

10 by mail, or through electronic means. A person who is unable, because of illiteracy or

II due to being a person with disability, to make a written request for information may

12 make an oral request, and the public official who receives the oral request shall reduce

13 it to writing, and include his name and position within the government agency, and give ~

14 a copy thereof to the person who made the request. The request shall state the name

15 and preferred contact information of the requesting party, and reasonably describe the

16 information required, the reason for the request of the information and the preferred

17 means by which the government agency shall communicate such information to the

18 requesting party: Provided, That the stated reason shall not be used as a ground to

19 deny the request or to refuse the acceptance of the request, unless such reason IS

20 contrary to law. If the request is submitted personally, the requesting party shall show

21 his current identification card issued by any government agency, or government or

22 private employer or school, or a community tax certificate. If the request is submitted by

23 mail or through electronic means, the requesting party may submit a photostatic or

24 electronically scanned copy of the identification, or other convenient means as

25 determined by the agency.

26

27 (8) The public official receiving the request shall provide reasonable assistance, free of

28 charge, to enable all requesters and particularly those with special needs, to comply

29 with the request requirements under this section.

30

31 (C) The request shall be stamped by the government agency, indicating the date and

32 time of receipt and the name, rank, title and position of the receiving public officer or

33 employee with the corresponding Signature, and a copy thereof furnished to the

34 requesting party. In case the request is submitted by electronic means, the government

35 agency shall provide for an equivalent means by which the requirements of thiS

36 paragraph shall be met. Each government agency shall establish a system to trace the

37 status of all requests for information received by it.

38 (D) The request may indicate the requesting party's preferred mode and means of

!

\11

1 receiving the information requested, provided that the mode and means are reasonable.

'Ii

2 taking into consideration equipment normally available to the concerned government ,;

3 agency.

4

5 (E) A government agency may communicate the information requested in a form other

6 than the preferred means whenever the agency has no capability in communicating the

7 information in the preferred format, or such preferred means would unreasonably

8 interfere with the effective operation of the agency or be detrimental to the preservation

9 of the record.

10

11 (F) The government agency shall comply with such request as soon as practicable, and

12 in any case within fifteen (15) working days from the receipt thereof. The period may be

13 extended whenever the information requested requires a search of the government

14 agency's field or satellite offices, examination of voluminous records, the occurrence of

15 fortuitous events or other analogous cases.

16

17 (G) The government agency shall, in writing or through electronic means, notify the

18 person making the request of the extension, setting forth the reasons for such extension

19 and the date when the information shall be made available, which in no case shall result

20 in an extension of more than twenty (20) working days.

21

22 (H) Once a decision is made to grant the request, the person making the request shall

23 be notified of such and shall pay the required access and processing fees.

24

25 If the information is not held by the government agency to which the request was made,

26 it shall notify the requester that it does not hold the information, and indicate to the

27 requester which agency holds the record, if known. Whenever practicable, the agency

28 receiving the request may also cause the transfer of the request to the appropnate

29 agency that holds the information: Provided, That the period to comply with the request

30 under this section Shall begin to run only upon the receipt of the agency to which the

31 request is transferred.

32

33 SEC. 12. Access and Processing Fees. - Government agencies may charge a

34 reasonable fee to reimburse the actual cost of reproduction, copying or transcription and

35 the communication of the information requested. An agency may waive the fees

36 whenever it is satisfied that the requester is an indigent, or that the cost of reproduction

37 is negligible, or that it is pursuant to a program for proactive disclosure.

11

SEC. 13. Exemption From Compliance. - The government agency is excused from

2 complying with a subsequent identical or substantially similar request from the same

3 requesting party where it has previously complied with a request for information unless

4 a reasonable interval has lapsed between compliance with the previous request and the

5 making of the current request: Provided, That the government agency complies with

6 Section 14 of this Act.

7

8 SEC. 14. Notice of Denial. - (A) If the government agency decides to deny the request.

9 in whole or in part, it shall, as soon as practicable, and in any case within fifteen (15)

10 working days from the receipt of the request, notify the person making the request of

11 such denial in writing or through electronic means. The notice shall clearly set forth the

12 ground or grounds for denial and the circumstances on which the denial is based, and

13 indicate available rights of reconsideration or appeal. Failure to notify the person making

14 the request of the denial, or of the extension, shall be deemed a denial of the request

15 for access to information.

16

17 SEC. 15. Remedies in Cases of Denial. - (A) In all government agencies other

18 the judicial branch:

19

20 (1) Every denial of a request for access to information may be contested by a Request

21 for Administrative Reconsideration to the same responsible official who originally denied

22 the request or by an Administrative appeal to the Head of Agency, following the

23 procedure mentioned in Section 10 (a) (8) and Section 14 of this Act: Provided, That

24 the appeal must be filed within fifteen (15) calendar days from the receipt of the notice

25 of denial and must be decided within fifteen (15) calendar days from filing. Failure to

26 resolve the appeal within the aforementioned period shall constitute a denial of the

27 appeal: Provided, Further, That every Notice of Denial shall include check-box options

28 to be checked or marked by the requester for the Immediate Administrative

29 Reconsideration or Appeal to the head of the agency. If the requester, after indicating

30 his desired remedy, submits his Request for Administrative Reconsideration or Appeal

31 with the government official communicating the Notice of Denial to the requester, that

32 government official shall be responsible for immediately coursing the Request for

33 Administrative Reconsideration or Appeal to the appropriate official or head of the

34 agency: Provided, Finally, That the requester may, in addition to and together with h<

35 Request for Reconsideration or Appeal, submit further arguments to strengthen

36 request;

37

38 (2) Instead of appealing or after the denial of the appeal, the person denied access I.

information may file a verified Complaint with the Office of the Ombudsman, praying tila

2 the government agency concerned be directed to immediately afford access to \i'.

3 information being requested, Such Complaint shall be resolved by the Office 11

4 Ombudsman within sixty (60) calendar days from filing, or earlier when time is at li

5 essence, taking into account such factors as the nature of the information requesle"

6 context of the request, public interest and danger that the information requested w;,

7 become moot The Office of the Ombudsman shall promulgate its special rules (.

8 procedure for the immediate disposition of Complaints filed pursuant to this Sectlor

9 Unless restrained or enjoined, the decisions of the Office of the Ombudsman shall •. H.

10 immediately executory, without prejudice to review in accordance with the Rules:

II Court;

12

13 (3) Instead of filing a Complaint with the Office of the Ombudsman, whenever a request

14 for information is denied originally or on administrative appeal, the requesting party lnily

I S file a verified petition for mandamus in the proper court, alleging the facts with certaln("

16 and praying that judgment be rendered ordering the respondent, immediately or Ii

17 some other time to be specified by the court, to disclose the information and to pay !t,.

18 damages sustained by the requesting party by reason of the denial. The procedure

19 such petition shall be summary in nature;

20

21 (4) In resolving a Complaint or Petition brought under the preceding paragraphs (2) am:

22 (3), the Ombudsman or the court is empowered to receive the information subject of i

23 claim of exception under Section 7 herein and examine them in camera to determln.

24 the sufficiency of the factual and legal basis of such claim, when such sufficiency canll(,'

2S be reasonably determined through evidence and circumstances apart from tiiL

26 information,

27

28 (B) In the Judicial Branch - The Judiciary shall be governed by such remedies 21:

29 promulgated by the Supreme Court,

30

31 (C) The remedies under this section are without prejudice to any other administrative, ,! 32 civil or criminal action covering the same act

33

34 (D) The remedies available under this Act shall be exempt from the rules on non-

3S exhaustion of administrative remedies and the application of the provisions of Republic

36 Act No, 9285, otherwise known as the Alternative Dispute Resolution Act of 2004

37

38 (E) In case the requesting party has limited or no financial capacity, the Public

Attorney's Office shall be mandated to provide legal assistance to the requeslci

2 availing of the rernedies provided under this Act.

3

4 SEC. 16. Keeping of Records. - (A) Government agencies shall create and/or

5 maintain in appropriate formats, accurate and reasonably complete documentation or

6 records of their organization, policies, transactions, decisions, resolutions, enactments.

7 actions, procedures, operations, activities, communications and documents received or

8 filed with them and the data generated or collected. These shall include working files

9 such as drafts or notes, whenever these have been circulated within the agency for

10 official purpose such as for discussion, comment or approval or when these contain

11 unique information that can substantially contribute to a proper understanding of the

12 agency organization, policies, transactions, decisions, resolutions, enactments, actions.

13 procedures, operations, and activities;

14

15 (8) Government agencies shall identify specific and classes of official records in their

16 custody or control that have continuing historical, administrative, informational, legal.

17 evidentiary, or research value for preservation by such agencies or their legitimate

18 successors, or for transfer to the National Archives of the Philippines. In addition, the

19

20 National Archives of the Philippines shall likewise identify specific and classes of official ,

21 records that it shall require agencies to preserve and transfer to it.

22

23 (C) In addition to the specific and classes of official records identified for preservation

24 under letter (8) of this section, the following shall not be destroyed:

25

26 (1) Records pertaining to loans obtained or guaranteed by the government;

27 (2) Records of government contracts;

28 (3) The declaration under oath of the assets, liabilities and net worth of public

29 officers and employees, as required by law; and

30 (4) Records of official investigations pertaining to allegations of graft and

31 corruption of public officers.

32

33 (D) Government agencies shall prepare, following standards and period promulgated

34 pursuant to Republic Act No. 9470 or the National Archives of the Philippines Act of

35 2007, a records management program that includes the following:

36

37 (1) A records maintenance system for the creation, selection, classification,

38 indexing and filing of official records that facilitate the easy identification, retrieval

1-1

1 and communication of information to the public;

2 2) A records maintenance, archival and disposition schedule providing a listing of

3 records under current use, for retention by the agency, for transfer to the National

4 Archives, or for destruction: Provided, That destruction of the official records may

5 be implemented only upon approval of the National Archives of the Philippines.

6 and

7 (3) A specifications of the roles and responsibilities of agency personnel in the

8 implementation of such system and schedule.

9 ! 10 (E) In addition to its function as repository of all rules and regulations issued by

11 agencies as provided under Book VII, Chapter II of the Administrative Code of 1987, the

12 University of the Philippines Law Center shall, in coordination with the Office of the

13 President which has exclusive editorial and printing jurisdiction over the Official Gazette.

14 and with other relevant agencies, maintain a database, and publish the same in print In

15 the Official Gazette or in digital or online form, the following:

16

17 (1) All laws of the Philippines and their amendments, from the period of the

18 Philippine Commission to the present;

19 (2) All presidential issuances from November 15, 1935 to the present, including

20 but not limited, to executive orders, presidential proclamations, administrative

21 orders, memorandum circulars, general orders, and other similar issuances;

22 (3) A database of all appointments and designations made by the President of

23 the Philippines; and

24 (4) Opinions of the Secretary of Justice.

25

26 SEC. 17. Publication in the Official Gazette. For purposes of mandatory disclosure as

27 provided in section 8 of this Act, online publication in the Official Gazette website shall

28 be considered official publication provided there shall be a timestamp in the said

29 document.

30

31 For purposes of compliance with Article 2 of the Civil Code of the Philippines,

32 publication of the following in the online version of the Official Gazette, with the

33 corresponding timestamps on the document, shall be considered as official publication.

34

35 (A) All important legislative acts and resolutions of a public nature of the ,! 36 Congress of the Philippines;

37 (B) All executive and administrative orders and proclamations of general

38 application;

,!

(C) Decisions or abstracts of decisions of the Supreme Court and the Court of

2 Appeals or other courts of similar rank, as may be deemed by said courts of sufficient

3 importance to be so published;

4 (E) Such documents or classes of documents as the President shall determine

5 from time to time to have general application or which he may authorize to be published

6

7 However, other documents or classes of documents as may be required to be

8 published by law, such as petitions and/or legal notices in connection with land titles.

9 naturalization or special proceedings shall continue to be published in the print version

10 of the Official Gazette or in any newspaper of general circulation for purposes of

II compliance with the publication requirement.

12

13 SEC. 18. Administrative Liability. - The acts enumerated in this Section shall be

14 tantamount to grave administrative offenses and shall constitute grounds for

15 administrative and disciplinary sanction against any public official or employee who

16 willfully and knowingly commits the following:

17

18 (a) Refusal to promptly forward the request under Section 11 of this Act to the public

19 officer within the same office or agency responsible for officially acting on the request

20 when such is the direct cause of the failure to disclose the information within the periods

21 required by this Act;

22 (b) Failure to act on the request within the periods required by this Act;

23 (c) Refusal to comply with the decision of his immediate supervisor, the Ombudsman, or

24 of any court ordering the release of information; ,! 25 (d) Approval of policies, rules and regulations clearly contrary to the provisions of this

26 Act, and which policies, rules and regulations are the direct cause of the denial of a

27 request for information.

28

29 SEC. 19. Criminal Liability. - (A) Any public official or employee who falsely denies or

30 conceals the existence of information which is a proper subject for disclosure under thiS

31 Act shall be liable for the crime of removal, concealment or destruction of documents as

32 defined under Article 226 of the Revised Penal Code.

33 (8) Any public official or employee who destroys, or causes to be destroyed.

34 information and/or documents being requested under this Act, for the purpose of

35 frustrating the requesting party's access thereto, shall be liable for the crime of removal.

36 concealment or destruction of documents as defined under Article 226 of the Revised

37 Penal Code.

38 (C) Any individual who knowingly directed, induced or caused the commission of the

foregoing acts shall be liable as principal by inducement in the prosecution of public

2 officials or employees under this section.

3 (D) The penalty of arresto mayor shall be imposed upon any public officer or employee

4 responsible for officially acting on the request, who shall claim an exception under

5 Section 7 of this Act, or under the Constitution, when such claim is manifestly devoid of

6 factual basis.

7

8 SEC. 20. No abuse in the exercise of rights and in the performance of duties

9 under this Act. - Public officials and employees, in the performance of their duties

10 under this Act, as well as citizens in the exercise of their rights under this Act, shall act

11 with justice, give everyone his or her due, and observe honesty and good faith.

12

13 Public officials and employees as well as citizens shall endeavor to handle information ,! 14 kept or obtained under this Act with due care, to the end that inaccuracies and

15 distortions are avoided.

16

17 Any public official or employee, or citizen who, in the performance of duties or exercise

18 of rights under this Act, willfully or negligently causes loss, damage or injury to another.

19 in a manner that is contrary to law, morals, good customs or public policy, shall

20 compensate the latter for the damage incurred. This is without prejudice to other

21 remedies available to the aggrieved party under any other law for the same acts

22

23 SEC. 21. Mere Denial in Good Faith Not a Ground for Liability. - A mere denial in

24 good faith of a request made pursuant to the provisions of this Act shall not constitute

25 grounds for administrative, civil or criminal liability.

26

27 SEC. 22. Act Not a Bar to Claim of Right to Information Under the Constitution

28 No provision of this Act shall be interpreted as a bar to any claim of denial of the right to

29 information under Article III, Section 7 of the 1987 Constitution.

30

31 SEC. 23. Appropriations. - The amount necessary to carry out the provisions of thiS

32 Act shall be charged against the agencies' current budget and shall thereafter be

33 included in the annual General Appropriations Act.

34

35 SEC. 24. Separability Clause. - If any section or part of this Act is held

36 unconstitutional or invalid, the other sections or provisions not otherwise affected shall

37 remain in full force and effect.

,!

17

SEC. 25. Repealing Clause. - All laws, decrees, executive orders, rules and

2 regulations, issuances or any part thereof inconsistent with the provisions of this Act.

3 including sections 18, 24 and 25 of Executive Order No. 292 in relation to Article 2 of

4 Republic Act No. 386, Memorandum Circular No. 78 dated 14 August 1964

5 (Promulgating Rules Governing Security of Classified Matter in Government Offices), as

6 amended, and Section 3, Rule IV of the Rules Implementing Republic Act No. 6713

7 (Code of Conduct and Ethical Standards for Public Officials and Employees), are

8 deemed repealed.

9

10 SEC. 26. Effectivity. - This Act shall take effect fifteen (15) days after its publication In

11 at least two (2) national newspapers of general circulation.

12

13

14 Approved,

IB

Personal Interview

Rep. Lorenzo Tanada III

December 10, 2012

1. How does a bill get passed?

Well, a bill gets passed, first of all, the proponents of any bill will file it with the bill

index, and then it is brought to the floor and read on first reading. After that, it will be

referred by the committee on rules to the appropriate committee. Once it is sent to the

appropriate committee, that's when the committee will hold its hearing to tackle the bill if

it's a singular bill, meaning there's no other bill like it, then there's no problem. If there

are multiple number of bills with the same topic, practically the same then there's a need

to consolidate. So during the hearing, the chair can already call for the attendance of

stakeholders whoever he thinks would be interested in the bill. And after hearing the

positions of the stakeholders and the author, then he can call for a technical working

group that will consolidate all the different versions. He will appoint a chairman of the

technical working group and he will ask if any other members are interested in joining

the technical working group plus of course the stakeholders. So everybody will go there,

consolidate, draft the substitute bill, and bring it back to the mother committee and that is

when the mother committee can either approve the bill immediately or take amendments

to the bill if needed, or settle controversial issues. Once that is done, the committee votes

on the bill, then it is sent back to the committee on rules for calendar in plenary for

plenary debate interpolation. Kasama na yung amendments dun, then voting on second

reading, and then voting on third reading. Then after that, it goes to the senate. Now, if

the senate has a similar bill and it goes through the same process, it has its version, the

house has its version, then a bicameral committee is called to reconcile the different

versions of the bill.

2. Where is the FOI bill now?

Right now, it's sad to say that despite the approval last Nov. 27, it's still with the

committee because the committee chair surprisingly called for another hearing on Dec 11

although we have not received the invitations but we were told in advance by the

committee secretariat, the purpose of which is to approve or sign the committee report. In

my opinion, this is not necessary. As a matter of fact, the practice here in the house by the

different committees and I have sat as chair in my committee in my second term, is that

once a bill is approved, you just pass around the bill or ask somebody to go to the

different members and have them signed, so obviously, this can be considered a delay by

the chair.

3. What differentiates your bill from the one in the senate?

More or less, the bill that they started with was the bill that came from the house. The

advocates worked with both chambers and they used my bill as the template. Of course,

during the committee, their committee can do whatever they want. And instead of FOI,

they called it POGI. Outside of that, I am not yet familiar with the different provisions

that may have been changed, or may still be changed when it gets to plenary, but at least

what i know is that the starting point was my bill.

4. What is the importance of FOI? Why are we pushing for this bill?

Well, first of all, it's a constitutional provision - article 3a section 7, and it makes good

governance, transparency, and accountability a reality. If you look at it, if you have

information, we can ensure that there is good governance. We can also be sure that we

can hold people accountable (as stated in?) The constitution and everything's transparent.

So i believe it's an important piece of legislation and you can even say it's the essence of

democracy - people's participation - because you engage the government and ask the

government "what are you doing? Are you doing things correctly?"

Well, for lawmakers, they become more transparent with whatever they're doing. For

example, whatever fund the government gives them for their district, they should be more

transparent about it. The districts also should know, the local officials should know how

funds are being used, how projects are being spent for, whether they're overpriced or not.

So it's safe to say that this changes the paradigm. It empowers people. Without foi, of

course we know the saying that information is power - the less info there is, the more

ignorant people become. And of course, if you are in a position of power, you would like

less information to come out.

You know, there's this wrong assumption that FOI’s for the media - it's not for the media

- as a matter of fact, the constitutional provision does not say it's a media right - it's a

citizen's right. It just so happens that the media practitioners are also citizens of the

republic. But even without FOI, the media has its own sources on how to hold people

accountable and make government act a certain way, so it should not only be considered

only a media right. It just so happened, it's just an incidental thing - but it would also help

media in getting information faster.

5. How does it encourage citizen involvement?

FOI is a neutral right. You have to do something to get the information you're asking for.

For example, you're interested in a SALN, but if you're just sitting down and not going to

a particular office and ask for it, you won't get it. Or if it's posted on the web, if you don't

open your computer, you won't get it. So you have to exercise that right in order to

benefit from it. We can pass the law but if no one wants to exercise it, it'll just be there.

How do citizens benefit from it, well, if they have access to information like budget, they

know what are the programs of the government. For example, if you're interested in

health, both national all the way down to the local level, if you're interested in health, you

can now ask and find out what particular program is there in health in one municipality or

in one province. You can even go further, like is there assistance to indigent people? And

if there is such assistance, you can avail of it. For example for farmers, if the Department

of Agriculture has a program for distribution of hand tractors and you want to avail of

such a program and you see it, they you'll be able to avail of such benefits. As part of

good governance, you help the government perform its duty by getting the information

you need. Of course, with regard to accountability, it's on the bill. You're able to monitor

if the government is using its resources correctly or not. If not, we hold people

accountable for that. That's the benefit of the bill.

6. What has been hindering the bill all this time?

The chairman of the committee on public information. His lack of interest in calling for

hearings with regard to FOI. He has been calling for hearings with regard to other subject

matters, but with regard to foi, he has not been calling as much as we would’ve wanted.

As a matter of fact, in the whole 2011, he did not call for one hearing at all. 2010, i can

tell you he called for one when he created the technical working group to consolidate the

different bills and the opinions of stakeholders. I was the one tasked to head the twg

because i was the one who pushed for the bill even in the previous congresses. So since i

knew it in and out, he asked me. The next time he called for a hearing was already

March of 2012. We were supposed to have a hearing in august, but he didn't call. In

October, we should’ve had another hearing but he said there was no room. I'm sure you

heard about that. Here, in Batasan there's no room? Why did I find a room? When I found

a room, i offered it to him, he didn't want to use it because I "failed to coordinate with

him." well, if I didn’t find a room, what is there to coordinate about?

But since i found the room, i informed him, now he doesn’t want to use the room. So the

third hearing he called was Nov. 13, when of course, nothing happened there except the

monologue of Congressman Antonino and his right of reply. The fourth hearing was last

week when we approved it in the committee. So my feeling and the feeling of others is

that if we had more hearings, all these issue, even the issue on the right of reply would’ve

been settled. Now that the number of session days is limited, now this is when he wants

to call for a hearing just to show he's interested in the bill...

7. How does the right of reply relate to FOI? Is there a need for it?

My opinion is we don't need it. As a matter of fact, it should not be included in with the

FOI because it would violate the constitution with regard to having two subject matters in

one bill. If they want to have a right of reply, it's a separate thing. As a matter of fact,

there are two bills on the right of reply which even the chairman has not heard at all, so

that's the problem of the chairman. Whether it's constitutional or not, there's not yet that

much jurisprudence in regard to it, but if you base it maybe on a decision of the SC where

it tackled the issue on political advertisement. Like an arbiter (?), the SC mentioned that

it was taking of property without just compensation. So you have to pay for your

advertisement. If you take that into consideration, demanding that you be given space to

print your reply is also taking without just compensation. And well, more than that, i

would say it's a violation of the freedom of the press with regard to editorial prerogative.

With that bill on the right of reply being inserted, or even having it as a separate bill, it

would act like a prior restraint because you would always feel that when i say this, they

can always demand... Now, the question is, who determines whether what i said is fair? Is

it the person who is injured or should it not be the court? My opinion is, it should be the

court that should determine whether what was stated was fair or not. Because if that is the

case, what may be fair for the journalist might not be fair for the injured. So that now

would be behind the head of the journalist and it will act as a prior restraint.

8. Any thoughts on PNoy's support?

For me, i still sincerely believe that he is in favor of this. He would not have created a

study group to engage myself and the advocates as early as Feb of 2011, and as a matter

of fact, in jan of this year, he came out openly and said he's in favor of the FOI.

Now, people are saying why can't he crack the whip? You know, that would be the easy

way out. We are three independent branches of government and we would like the house

and the senate to function and fight for what it believes in. And if you look at our

constitutional government, what happens is that the president, during the writing of

legislation is at the end - meaning he can veto or he can sign. So why ask him to get

involved now? It's enough that he has already mentioned it, for me. But people say it

happens - let's try to follow what is written in the constitution.

9. Assuming that the bill dies in this congress, what would your actions be?

I'm termed out, i can't run anymore but the foi has been in congress older than I am, so

I'm sure that those that have supported the bill, if they're re-elected would carry the

banner of the FOI and I’ll be there to support them.

10. Can you name several supporters of the bill?

From the partylist Akbayan, Rep. Walden Bello, from LP there's Rep. Teddy Baguilat,

Akbayan but now he's running in a leg. District Rep. Kaka Bag-ao, and people who are

very supportive of the bill. No one will come out openly and say they are against the

freedom of information. Because by saying that, they are going against our oath, that they

would uphold our constitution, so you would not catch anyone.

Personal Interview

Atty. Nepomuceno Malaluan

December 13, 2012

1. Since when have you been active in the campaign for an FOI bill?

Well, my organization, Action for Economic Reforms (AER), was launched in 1996 and

part of the focus of AER ay macroeconomic and development issues but at the same time

we are looking in terms of economic development, the need for institutional reforms also

in governance and even at that point we felt that a freer flow of government held

information was very important. It is a mechanism for fostering economic development

in terms of being able to have as a policy organization an informed participation which

can be had by a freer access of important information from government, whether it's for

policy development or data. So that's our foundation. Immediately we saw that as far as

the constitutional guarantee is concerned, even if we know the jurisprudence that it's

enforceable by itself, we see in practice the major legal gaps in its administrative

operation. I think by 1997, we already had a framework paper on why it is important and

what are the existing gaps. But what we didn't know is that there are other groups that are

also having problems in accessing information, part of that are media organizations and

part of that also are anti corruption groups. And even people's organizations or support

groups of people orgs helping, for example, farmers in agrarian reforms are also having

problems in accessing information. One big issue, for example, in that point, because

CARP was just being implemented in its first few years, isang problem halimbawa nila

ay yung land conversion and that data with respect to land conversion are with the

Department of Agrarian Reform, DENR and local governments, and sometimes the

courts, and the support groups of farmers are having problems accessing these documents

which are very important to farmers. Because sometimes they don't know, they thought

they are still claimants to the land when in fact na convert na yung land.

And as I recall, we had a forum on FOI I think we were the one who organized that

forum, in 99 or 2000, with other groups, and that's when we found out that there are other

groups that are concerned with freedom of information. After that forum we decided to

engage in the legislative process. And so what we did was to look into the drafts that

were existing then and tried to come up with an agreement of what would be key

provisions. And there was a long process of consultation we had until finally I think in

2001 the first bill of FOI that embodied some level of consultation with public interest

organizations, and particularly we formed the Access to Information Network around that

time, was filed, and our key partner then was Rep. Joel Villanueva of Sibak and Del De

Guzman of Marikina. When I said that at the same time other organizations we working

on it, I think PCIJ was also looking at it. PCIJ released a book looking at the state of

access to information in Southeast Asia, 2001 din siya. Ako naman, I also found out that

in different countries it's becoming a demand. I was invited in 2000 or 2001 in Japan by

some organzinations that were pushing for FOI. It was an international forum and I think

they contacted PCIJ but PCIJ pointed to me because they interviewed me also for

Philippine side. So what I found out is that in Thailand in 1997 and then in Indonesia

there was a movement also that was just beginning. And Japan at that time just passed its

FOI. From then on the campaign went forward and basically the legislative process

provided an opportunity for us based on our original draft, mainly public interest

organizations ang nag develop nun, but in the legislative process we came to interact with

other stakeholders which include of course various agencies of the executive department,

legislators, private sector.

2. What was the Access to Information Network?

As I mentioned it was the result when we organized that forum, we realized that there are

other groups that are concerned with that. And kaya originally the composition of that

access to information network were the different groups that were involved like PCIJ,

which is dealing with investigative reporting and having difficulty getting information for

its investigative reporting, Transparency and Accountability Network is doing work on

anti corruption issues and then the alternative law groups are also involved, kasama dun

ang Legal Rights and Natural Resources Center, KAISAHAN, I think, which is working

naman with farmers' issues. And we expanded from there. So may mga legal

organization. But you would see these are public interest groups working in different

areas with a common experience in access to information. The practice was mixed in the

sense that some agencies were open but there were certain agencies that are not very open

in getting information. And we all agreed that part of the problem was the absence of a

more comprehensive FOI legislation that would supplement what is guaranteed in the

constitution.

3. So para po siyang alliance ng mga organization?

Yes, you can say that. Well we call ourselves an alliance, with partnership with a number

of legislators, particularly in the lower house. And as I mentioned, at that time, during the

legislative process when we got to interact with the different stakeholders, more and more

the bill was evolving to balance the different, sometimes conflicting concerns,

particularly with the executive department and their concern was with the confidentiality

of certiain information. So the exceptions issue was a key point of balancing the various

stakeholders' positions. So there was a natural progression from there and after 2001and

the congresses thereafter, parang it's a continous evolving of the bill. So what would

happen are some advances in terms of the discussion with the different stakeholders

during the legislative process and then what will be refiled is already the outcome of the

previous congress. We were also at that time learning the intricacies of legislative work.

We were also progressing in terms of being able to deal with a formal legislative process.

It's different in terms of what the law provides and how it works. You learn along the

way also in terms of representation in committees. TWG we thought originally that we

cannot be part of the technical working group, that we always need to be in partnership

with let's say a legislator to be able to have access to some of the phases in the

proceeding, when in fact we can represent ourselves in the TWG. The other thing there is

that we didn't have enough capacity to engage both Houses at the same time, so we were

focusing really in the lower house in the initial stages.

4. Ano naman po yung Right to Know, Right Now coalition?

Well that's part of the campaign progression. As I mentioned during those times even if

we were not able to pass the bill in the earlier stages, we really were seeing issues that

were coming up that required me to build on what we know, even my understanding of it

from a legal perspective, let's say as a lawyer is still continuing. Plus there were certain

things that were preventing us from really pushing during certain times like during the

impeachment of Erap, which disrupts the whole process. But in the last congress

precisely because of the learning we've had before and the fact that the consensus of the

stakeholders was already evolving, particularly with the bureaucracy. Ang pinapadala

kasi usually sa hearings ay hindi naman dun sa political level na cabinet secretary. Ang

pinpadala nila ay yung higher-middle level bureaucracy, hindi talaga yung mga cabinet

secretaries, which are the political ones. So the consensus have emerged earlier with the

bureaucracy that we're attending the committee, but the politics would change kasi very

political from cabinet level and they really have not been able to sift through the process.

But during the time of GMA medyo mataas na yung level ng consensus with the

bureaucracy, but politically, of course, hindi masyado. In fact we didn't engage the

presidency at that point because most of the public interest groups were against the GMA

administration. But maybe because of the experience we've had already and as I

mentioned the consensus already on the bill, there's also a learning process with our

champions in congress- the readiness to push it only matures at a certain point, example

si Rep. Erin Tanada. He has championed it consistently but his learning process of the

bill also takes time in the same way that the learning process of the public interest groups

were taking. But the 14th congress I think was already the maturation of the whole

process of being able to really push it in the House and eventually in the Senate despite

not dealing with the executive. And we realized at that point that political pressure is very

important. Aside from the fact that over the years people are getting more and more

aware and it's a common issue even for business sector, for Church. And so at the time

also that we're gaining ground in the legislative process, people are getting more and

more interested in the advocacy and people are getting more and more aware of the

importance of the passing of the FOI bill. So we saw the need of broadening the

campaign, so from ATIN, and mainly the mechanism for that expasion was getting them

to support statements originally. It's really a loose network in that sense. But habang may

mga nagsisign sa mga statements that we have we include them in the e-group, which is

the main mechanism for communication and for discussing issues, in addition to

legislative lobby work and face to face meetings.

So that's how it expanded into the Right to Know, Right Now coalition. So the R2KRN

coalition, in a way, is a campaign stage. We were getting very big advances, people were

getting more and more interested and getting on board and learning about the issue and

becoming more committed in a more involved way, but mainly through pag support nga

nung mga positions and statements and discussions that happen either in the e-group or

through meetings. We've had a number of mobilizations also. So doing a mix of media

work, kaya nag expand din yung media components. We're doing mobilizations, in 14th

congress ha, like rallies in grounds of the Senate and in the House, which brought labor

organizations, etc. And then we're doing public awareness groups, and so some people

who have partners in let's say Davao, different areas of the country. So it was supposed to

be a campaign phase but it made ATIN superfluous because why do you need to have

two levels of organizations. So in a way ATIN faded in favor of this coalition. But the

14th congress was also the realization that there is a very strong, unstated opposition with

politicians.

5. How was this opposition made evident?

Well it was made evident by what they did in the lower house. And these are very

influential legislators, too. Some of them I would assume are senior legislators. So we

can only go by actions because there is no one that says I oppose FOI bill but the actions

run contrary to that public statement. But the senate works differently. For one it's more

independent of the executive. Secondly, I think they are, because they are national public

officials, they're already used to public scrutiny. Because they're in the national limelight,

under scrunity by the media and various groups, etc, they don't fear transparency

anymore. In contrast to the house, ang dami pa dyan na hindi sanay. They're very

sensitive to criticism. And many of them would really rather not be noticed in the

national (scale). Ang may gusto naman dyan sa limelight ay yung mga ambitions sa

higher positions but many of them, especially the dynasties, are really content in having

their local groups.They're very sensitive to transparency and being put under scrutiny.

And that was something that we did not realize. We also thought that public

commitments would carry through and I don't know if you can look at PCIJ and research

on i, yung account nila when it was killed in the 14th congress. It was killed on a quorum

call on the last day but that was already the final act. They had an opportunity to ratify

the bicameral conference report which is the last.

Well just for background the legislative stages the bill has to go through before it gets

into law. So you have the first reading in both houses of the bills that are filed. The first

reading is just the reading in plenary, uaually just title and it's referred to the proper

committee and then the committee conducts the committee hearings and comes up with

the consolidation of the bills that are filed into a committee report that they will vote one

and then this has to happen in both houses. The committee report will be sent to plenary

for debates so a period of interpellations, congressmen and senators will ask questions to

the sponsors of the bill and then based on the interpellation, some will try to introduce

ammendments, that's called period of ammendments and then after the ammendments it

will be voted on second reading. After its vote on second reading, if it's approved, they

will come up with a clean copy of the bill. It has to be circulated at least three days before

it has to be voted on on its final and third reading. But what will be produced in both

houses often will have some differences and they have to go into a bicameral conference

for reconciliation. After which it will be sent back to both houses for final ratification. If

it is ratified in both houses, then it will be transmitted by the lower house to the president

for signing.And so we were in the final step when that happened. The bicameral

conference was already finished in January and there were three session days left,

February 1, 2, 3. It was already ready for ratification but they didn't want it put in the

agenda. Those were learnings as well. You learn as you go on, even if you study the

rules, it's different from how it's implemented. And then you really have to study how it

works to allow you to know how to push it within that context.

Unfortunately, that learning process is not a repeatable process. You will learn it, but the

time frame when you will be able to fully use your learning will come in the future or

will not come at all. And what you don’t know is that there will be new things you have

to deal with. But anyway, just to say that there were several opportunities, but it was only

on the very last day of that session of that congress of the 14th

that they put it on the table

(that) it was questioned based on quorum. And then, when the roll call was made, I think

they required 135 members for a quorum at that time but there was only 128 members

based on the count. So we thought we lost, really, the struggle for attendance that day

because we were trying to reach the members of congress to encourage them to attend the

last day because there was a commitment to put it to a vote but we know that there were

texts going around asking congressmen not to attend because there is this bill that’s

gonna be railroaded. So when we got the roll call result of the day, we thought that, hey,

the other groups that were asking congressmen not to come, who were members of

congress themselves won the convincing, only to find out that night of the following day

that by our count, there were at least 8 that were actually present on the floor when the

roll call was made. So that’s another learning that’s not repeatable – you can only use it

the next time. Once there’s a voting, you have to really check the voting results. It’s also

difficult to implement that in practice because once it’s announced, they can already

declare the session adjourned for of lack of quorum. A question call is very high priority

in terms of order of motion – you can interrupt anything if it’s quorum. So you have to

have a mechanism whereby you can verify because it can happen again. In fact, it can

happen both ways – they might call a quorum when there’s not a sufficient number of

people on the floor. They can also call a non-quorum even if there’s enough people.

That’s where you can look at the PCIJ account. We have people stating that they were

there during the roll call and we have videos also of people actually present. There was a

quorum on that day.

In any case, fast forward to the 15th

congress, one is we know that the composition of

congress is really the same from the 14th

. The changes are just changes in names but the

composition, the profile, is the same. There’s nothing that really happened between the

14th

and 15th

congress as far as changing the profile of the members in both houses. But

the factor that we thought was different was President Aquino. Pres Aquino ran on the

platform of good governance, corruption, “the straight and righteous path,” last made a

statement that he would support it. Plus the fact that we know that many of those that

entered his cabinet were supportive of the FOI. Plus, his candidacy was supported by the

people who were pushing for the bill – the business sector, anti-corruption groups. These

were exactly the groups who supported the bill who also supported the candidacy of

PNoy. And so it was really a big surprise for us that he didn’t mention it despite letters.

We’ve sent letters to him... conjunctures where he would be addressing the country in the

inaugural speech, in the first state of the nation, in the second state of the nation, in the

third even. But he wasn’t mentioning it. In the first year, instead of supporting it, what he

was doing was that he was expressing so many concerns until he formed a study group.

But even after the study group has finished its work, he still wouldn’t endorse the work of

the study group. And when he finally endorsed it January of his year, we thought that that

was it, that the bill was a priority. But it was just an endorsement. It stops there. He took

a ands-off position after. That’s why we’re in a position we are in. The factor we had

thought would change the outcome was not there. In fact, it slowed us in the sense that

had we known that it would not be a factor, instead of engaging the study group for

example, for so many months, allowing the legislative process to slow down, to be

deferred, in consideration of the study group’s work. If we knew that he would not

support it fully in any way, then we could have focused on the legislative side.

But in the end, in a way, the advocates were left on their own. And so we had to deal with

the same resistance in the lower house. You know, the power and authority is with them.

You need so many factors to be able to hold that process. And it’s difficult because as I

mentioned, the fear of politicians is personal. Now, it’s different when you push a bill and

there are competing interests that are lobbying, for example. You know who your

enemies are. Of course, sometimes, there’s corruption involved, probably, and so it

becomes a conflict of interest between the legislators and the vested interest group. But

here, it’s different. They feel it’s them. It’s their political life that’s at stake. As I

mentioned, it’s different for the senators, but in congress, there are many like that. They

feel that it is bad for us personally. Unlike in other bills, some people are saying “don’t

pass it, it’s bad for us.” But it’s not really bad for the congressmen, it’s just a matter of

weighing, balancing. Like the RH, for example. It’s not an issue for them. It’s really

based on the advocacy of different groups. They believe in it or not. But does it concern

them personally? It concerns their constituency, it concerns the groups that are pushing it

on one side, But they think “this bill is about me, it’s about opening myself to public

scrutiny.”

And that’s the reason why the right of reply is a key concern, because it’s “my” right of

reply that they are pushing, it’s not the right of reply of any other person. It’s my right of

reply. You have to include this. If you will demand from me greater openness and greater

scrutiny, you have to give me something too. You have to give me a right to reply. Only

problem with that is that they wanted to reply on an area that is already traditionally our

freedom, and guarantees our protection – our freedom to express, our freedom to

criticize. And they think that’s the problem, when they feel its abuse. So there’s a very

big problem with respect to their perception of that freedom, that criticism, for example,

is abused. We can talk about areas that are injuries that are traditionally recognized as

areas of speech that’s not protected, like libel. But libel to them and criticism is the same.

In fact, I think they’re more concerned with criticism.

And my biggest surprise is when the president delivered his speech in KBP recently.

Because this premise is also based on being injured by unprotected speech. That was the

speech that traditionally is allowed not to receive any protection. In other words, it’s

outside the coverage of our freedom of expression if your expression injures somebody as

defined by the libel law. There’s certain kinds of expression that the law does not protect.

Or your constitutional guarantee does not protect. It does not protect you if as defined by

criminal law, it’s libellous. But we have to be careful there too, that we read that libel

provision, because there’s a different standard between simple private expression and

expression relating to areas of public interest. There is wider protection of public interest

issues. If the stringency of the standards of libel is relaxed in respect to matters of public

interest unless it can be proven really that it was intended with such malice that says your

intent was to damage that person. But that’s not their idea. In the speech of President

Aquino, the idea was of the negativistic press. You have to look at that speech where he

mentioned right of reply. It’s a coverage that mistakes fact for opinion. But certainly

these are areas that are precisely protected, coz the idea is even if there’s a mistake, the

freedom of expression itself can correct that by itself. If it’s criticism, the freedom of

expression will correct that by itself. That’s the idea. That’s why it has to be free. It’s a

market of deas. Of course, they can say there’s corruption... even that, you have to be

careful.

6. What future can you see for the FOI?

The future for FOI is that it won’t go away. The politicians fear it but it won’t go away

because it’s a guarantee that people will demand. When it will be passed is a matter of

when. It’s a matter of time. You know, they can forestall it. As I said, the learnings are

not repeatable but the learnings will make you closer and closer to getting it passed. And

you can see now, the issues of public concern of public concern, of public interest, are

being resolved more and more. Like exceptions, ano pang marereklamo nila sa

exceptions? It’s so balanced over the legislative process. What’s left now is the political

resistance already, and it’s a matter of time when we will overcome that political

resistance by a bigger political force. And we would be working with that. They cannot

repeat all of the public interest issues. Ang issue na lang talaga ngayon ay yung sa takot

nila, what t odo with the right of reply if it becomes a media issue. It’s not ripe for a

decision now but it will be discussed, the bills will come, the media will stay in a hard

line position against it, we will be forced to also engage in that process in the future and

at some point, a middle ground may be achieved. It’s a matter of time for this measure.

7. Were there differences in the political atmosphere in the different

congresses?

It’s very political, and because it’s very political, you cannot really compute it, calculate

it. What you can only do within your powers is something that’s within your grasp – your

ability to organize. Syempre there are limitations but there are things that are within your

power and things that are obviously very political and fluid so. It’s not repeatable because

you don’t know who will come. What nature, what to expect in the next president, what

kind of attitude, what kind of personality, what kind of political blocs you have to deal

with, how are your forces able to cope. So always, the challenge is organizing campaigns

like this. And what makes it hard is that it strikes at the heart of the politicians

themselves. It’s like anti-political dynasty.

8. How is the environment towards the FOI?

There were some strokes of luck. One stroke of luck there was the immediate passage in

the house. There are three regular sessions, it’s the term of congress divided into three

regular sessions. Before the end of the first regular session, we were able to pass it in the

house, and we were able to pass t in the house and we were able to assist in the house by

some stroke of luck also. Those are not repeatable. In fact, they have also learned their

lesson. They cannot allow it to pass early and that’s what Evardone did, make sure that it

did not pass early enough as chairman. That presents some learning for us in the 16th

congress if it does not pass now. That’s what I’m saying, it’s a matter of time, really,

he’ll run out of time, because this is a guarantee of citizens and citizens will continue to

value it. We need to know what they’re doing.

Sen. Antonio Trillanes III

Personal Interview

January 21, 2013

1. You filed a bill early during the 15 congress?

We are the technically the principal author of the bill.

2. After the first bill that you filed, did you file a subsequent bill?

No, we’re still in the 15th

congress. I don’t need to.

3. Ano po yung salient provisions ng bill ninyo?

It details the kind of information that should be open to the public and the procedures of

how to access that information or documents. At the same time, it provided for a penal

provision that details the punishments for the violators of the law, should it be enacted

into law.

4. Napasa na po sa 3rd

reading… after that po, what happens?

We’ll have to wait for the version of the HoR. Right now it was already passed by the

committee but it has yet to be sponsored on the floor. Once it gets sponsored on the floor,

it will now be interpolated on by the different congressmen. And after that, should the

period of interpolation be closed, they can now move to the period of amendments,

committee amendments, individual amendments, then they can pass it on 2nd

reading, and

after three session days, they can pass it on to 3rd

reading. Then we would have to

reconcile the senate and the house versions, which is why we will have a bicameral

conference committee meeting. Then, they will go back to both houses for the approval

of the body. After that, it’s now an enrolled bill, they will submit it to the president for

his signature. If the president vetoes the bill, it gets archived or it gets reversed through ¾

vote of both houses of congress. That’s the process.

5. This is the farthest foi has gone in the senate. Bakit mas madali sa Senate?

That is a sign that the president is lukewarm towards the bill. Because the way we are set

up, and the actual dynamics on the ground, supposed to be congress and the executive

and the judiciary are all independent constitutional bodies who are supposed to check

each other, but on reality, what happens on the ground is reflected on the policy of the

president. If it’s not moving there, it means the president is not interested. That’s the

reason why it got passed in the senate and not in the house.

In the senate, why are they interested in pushing for this? Because the prime movers for

this happens to be members of the opposition, particularly the senate president, the

majority leader, and even the sponsor of the bill, senator honasan. So if they get to pass

this bill, they will now have the tools to get information that they may use against the

seating administration. So that’s why they’re interested. And that’s now the fear of the

Aquino administration, that they would provide the rope in which they would be hanged.

6. Is there enough time?

Yes, if the president would back it up. Otherwise, it won’t stand a chance. Those are the

realities.

7. Why is it important?

My principal advocacy is anti-corruption and part of that is transparency. And this FOI

bill is the best policy to promote transparency with government. It’s just consistent with

my advocacies.

8. In case it doesn’t get passed, what’s the future of the bill?

We can try it again in the next congress, but it may have a chance at the latter part of the

16th

congress, because by then, the Aquino administration would be going out, and he

may use that, leave that as a legacy which cannot be used against him because he’s on the

way out. So that’s how I see this thing happening. The new policy now would be

implemented during the next administration, which is definitely not Aquino because he’s

only good for one term.

9. How would the bill benefit ordinary citizens?

They would get to know what’s going on inside the bureaucracy. Some procurements

major, or big ticket projects, they can now scrutinize it. Being voters, being citizens of

the republic, they have that right now to demand certain information and make the

seating administration more responsible and accountable for their actions.

Personal Interview

Red Batario

February 12, 2013

1. Our thesis po kasi is on the history of the FOI...

Before wala pa talagang more concerted advocacy for FOI that time. There were just a

frew groups who were saying na this should be passed. In fact wala pa talaga yung

coalition. In fact there was no coalition before to work for the passage of the bill. Until

noong 12th congress nag coalize na yung iba't ibang organization. These are composed of

media organizations, civil society groups, individuals, etc. When they got together they

formed Access to Information Network (ATIN). Yan yung precursor ng Right to Know,

Right Now. The Right to Know, Right Now which was formed in the 14th congress,

latter part of the 13th congress and towards the 14th congress was the larger

configuration of different groups which includes the ATIN. Nung nagform yung ATIN,

that includes us the Center for Community Journalism and Development, the Philippine

Center for Investigative Journalism, Center for Media Freedom and Responsiblity,

Transparency and Accountability Network at marami pang mga civil society

organizations, exactly to work for the passage of the bill. So ginagawa ng coalition is to

conduct mga forums to raise public awareness about the FOI, especially in the provinces.

Kasi parang nakikita natin dun yung weakness, there's not much awareness especially in

the provinces. Dito sa Metro Manila medyo mataas pa yung understanding and

knowledge on the FOI and what are its implications. Pero pag lumabas ka, parang

mahina. So that's part of the work we did sa coalition.

But the main thrust also was to work with congress. So we worked with legislators at the

senate and at the lower house to have them crack the bill. Unfortunately in the 12th

congress parang hindi pa talaga masyadong hinog in terms of, uh, even the progressive

ones in congress ay hindi pa nila parang priority yung FOI. So it didn't take off during the

12th congress. So we were saying, "o sige, baka sa 13th congress meron," so ganun pa

rin, all these groups were still working and we even linked up with international

organizations, mga public interest groups abroad to be able to drum up support for the

passage of the bill. So karamihan ng ginawa din namin noon moblizations, marching on

the streets, going to congress, holding pickets, holding rallies, at the same time coupled

with a media campaign. So stories coming out in the media in the different TV stations,

sa mga dyaryo and parang may speaker's bureau, guesting in mga radio programs and TV

shows, as part of the campaign. But I think the basic difficulty that we faced is resistance

really from congress. In fact in the 13th and 14th and 15th, it was the senate that was

more open to the idea of passing the FOI law. But in the lower house talagang grabe yung

resistance and how they dribbled the bill from one to the next, especially nitong last

which was very very disappointing because during the time of Gloria Arroyo, I think it

was very clear where the administration stands and where the congress stands but in this

administration nilaro-laro pa eh. Okay we're for it but we will wait for congress, things

like that. But then the leadership of the lower house had shown that they are not really for

the FOI.

So yun yung mga challenges that we faced in the campaign to have this bill passed into

law. Marami na ring naicontribute yung coalition dyan, especially nga yung RKRN na

malaki na talaga siya na coalition, in fact there are almost 200 na yata na organizations

that are part of the movement, who all contributed to crafting that bill. So marami na rin

yang pinagdaanan, in fact when Malacanang said, itong administration ni PNoy said, we

want to study it, sabi namin sige well and good and we would welcome your suggestions.

In fact parang nagstep back pa kami na a few steps backward to accomodate the request

ng Malacanang na ito wag masyado etc etc just to have that bill passed. But there are

some non negotiables, like penalties, mga exceptions. Kasi before sa other proposed bills,

parang napakalawak naman nung mga exceptions parang wala ka na ring Freedom of

Information law. So we are saying that there should exceptions that are non negtionable.

They also cite issues on national security but sometimes parang masyadong blanket. So

we were saying na okay lang naman na pag usapan natin but at the same time pinasok

naman nila yung rider ng right of reply. So medyo dun kami nataranta. Hindi naman natin

ni-negotiate ito. Papasa niyo nga yan pero nakarider naman yung ROR. At the end, we

dared them sige pasa niyo yan, and let's see as long as you pass the FOI. Pero hindi

naman nila pinasa. Which means takot sila sa FOI talaga, not knowing the full

implications of the FOI. Kasi tinitignan nila na gagamitin lang ng media, which is not

true. FOI is for all citizens.

So yun yung pinagdaanan. Along the way medyo may nawawalang mga kasama,

napapagod sa mga kampanya, may nadadagdag din naman na mga organizations and

individuals in campaigning for the passage of the bill. If you ask me I'm optimistic that

this 16th congress will pass the bill eventually. Right now, no. Tingin ko parang it might

be too early to say. Although I'm not saying I'm closing all the doors and that we will stop

the fight. What I'm just saying is that I'm not a mistake that we've reached that level of

maturity to understand the level of democratice structures necessarily emmanate from the

people. So parang hindi ganun ang understanding ng congress. Eh siguro pag napalitan

yung mukha ng congress baka magbago. Pero kasi ngayon elite controlled pa rin ang

congress natin. Necessarily, hindi natin ma-eexpect yan na i0share yung power. Because

when you say freedom of information, access to information, that's sharing power which

is very difficult who have had power for centuries in this country.

2. Bakit po sa 12th

congress lang nagkaroon ng coalition?

Kasi before that meron na ring ano yan, pero what I'm saying is mas naging, sa 12th

congress parang mas nag-gel yung mga groups. Before kasi parang mga individual

actions yung pag campaign for the passage of the bill. But it was in the 12th, I think it

was even in the 11th, na nagkaroon ng talagang mas concerted na action. Although before

nagmemeet naman pero sometimes informally. Halimbawa kami with NUJP, for

instance, we will have a forum on freedom of information, but hindi kasama yung ibang

groups. Until later on na nagkaroon ng decision na dapat mas aggresive na rin yung

pagpush ng campaign and at the same time mas marami na dapat na mga groups at

alliances.

3. Ano po yung mga trends and patterns na napansin niyo sa history ng FOI in

terms of positive and negative support?

Sa positive, nakita natin there's a seeming change in the thinking in the senate. Na parang

mas mature yung pagtanaw nila. Although you're dealing with lesser people so it's easier

that way. And if you are able to work with champions within the legislatures, especially

the senate. Parang it's easier to influence the others. At that time Enrile I think was trying

to shore up his image. Hindi naman siya nakialam masyado. And then when he said he's

going to support it wala siyang ginawa na to block it. At the same time hindi naman siya

masyadong nagsusupport but he didn't block it. So sina Cayetano and then later on si

Honasan was able to move it forward. It was really in the lower house, especially in the

14th congress where we thought we would be able to wrap it up but unable to because of

lack of quorum. But there were champions who were trying to move it forward. Again,

sina Erin Tanada yan and before that several party list groups. But what is very telling in

the campaign the passage of the bill is that in congress the politicians who are supporting

it are those who belong to the smaller parties or the partylists. Very few yung galing sa

mga big political parties like LP or the PDP Laban, etc etc, which tells you something.

Yung mainstream pa rin ay talagang resistant to having a bill or having a law that would

allow people to have access to information. Sa local level ganun din eh. If you go to the

local provinces, municipalities ganun din eh. Parang takot yung mga officials na buksan

yung kanyang... when in fact the constitution guarantees. Wala ka nga lang law that says

okay this is what you will do.

4. What was it about the 14th congress that pushed the bill to where it got?

Well intense yung campaign. But I think napaglaruan din eh. Okay sige, we'll allow you

to get this far but in the end you will not see the light of day, you will not have this

passed. So parang binigyan lang ng lip service ng iba sa congress. And even the

champions of the FOI believed that they will be able to pass it. Because at the very last

minute, nandun na eh. Ipepresent nalang for plenary tapos biglang nagdeclare ng lack of

quorum because of this person, si Antonino who was pushing for the right of reply. So in

the next congress, yun na yung nakapasok nun. And what is ironic there is that in a

speech of President Aquino, parang inendorse pa niya yung ROR rather than the FOI

where it was his campaign promise to push for the passage of the FOI bill.`It was for

transparency and accountability and his fight against corruption.

5. Do presidents have an effect in law making?

They do have a large effect on the legislative process, when they certify a bill as urgent,

especially a president as popular as Aquino. Siguro kung with GMA yan baka magkaroon

pa ng problema, but with Aquino if he certifies the bill as urgent like what happened to

the RH Bill. So in three days it was passed. How long has the RH bill been in congress?

Mas matagal pa yan sa FOI. Pero a president can have a vastly huge influence on the

actions of congress, kahit di niya sabihing oi ipasa niyo yan. But if he certifies it as

urgent, especially if the president enjoys quite popular support, pasado yan sigurado.

6. How has PNoy backed his claims regarding the FOI?

Well he's always saying that he's for the bill and even people in Malacanang say so.

However they keep on saying also that they are leaving it up to congress to debate

knowing the composition of congress. So parang washing their hands off but at the same

time you cannot fault them. But if you say okay I will certify this as urgent because I

believe in it, then that's another story.

7. The 14th congress almost passed the FOI bill. Does it have anything to do

with Gloria Macapagal Arroyo, given the kind of government she was

running then?

Maybe partly. But it is again debunked by what happened in the 15th congress. So it's

really people in congress themselves, the congressmen, representatives. These are people

who are still part of the old political elite. Yung kanilang systems ay ganun pa rin. I think

it's not because of GMA's influence at the time, maybe partly true because there are

things she wants to hide, but generally I think it's really congress.

8. Is there enough public clamor for the bill right now?

Alam mo that's a very good question because that's the thing that's missing. People don't

seem to be able to relate to FOI because they are not able to relate information with their

daily lives. And I think that's the challenge for all of us. Especially among us who are

involved in the campaign. Sa tingin ko, personally, there's a lack really of heightening

awareness about the FOI. How can it get more popular? Bakit yung sa cybercrime?

Sandali lang pero andami na. Social media, twitter, FB, lahat, so much reactions. Ang

laki ng impact kaagad and so widespread. Bakit yung FOI ang tagal tagal na pero yung

tao parang... Personally, I think it's because people can't relate to something that's so

difficult to understand. So I think the challenge for us, especially now, in the 16th

congress, to be able to build constituencies. For people to be able to understand it better.

Ano ba ang ibig sabihin ng FOI sa buhay namin? In fact ang dami ngang debate sa

paggawa ng slogan eh. Yung ipasa na yung FOI. Ano ba yun? Parang ang hirap to look

for a slogan that will carry the campaign. So yun yung isang challenge dyan. So I think

yung isa naming failure is to generate public support. Kahit maraming civil society

partners, people don't talk about it.

9. So how will you generate public support?

I don't have any idea yet how. But we do have individually, yung mga organizations

namin, like us for instance, we always carry the discussion of the FOI whenever we have

trainings and workshops outside in the provinces. That's where we also generate reactions

and information about how people think about it. As I said, parang kailangan ipopularize

yung language ng FOI. Ano ba yung translation nito sa Tagalog? Wala eh. Kalayaan...

10. Paano niyo po pinapaliwanag sa mga tao?

Nililink namin. Kasi pareho nga dun sa killings ng mga journalists. Pag pinatay mo ang

isang journalist anong ibig sabihin niyan? Hindi lang may pinatay na tao o may pinatay

na mamamahayag. Ang pinapatay mo dyan yung roots ng demokrasya, yung flow ng

information. Parang ganun din sa FOI. Kung wala kang information, kasi yan yung

powerful na institution, pwede niyang gawin ang kahit anong gusto niyang gawin ng

hindi mo alam. Malay mo niluluto ka na sa sarili mong mantika. You have to try to break

the concept down into chewable pieces. Napakachallenging kasi ang lawak naman ng

Pilipinas so you need resources for that. In some areas, halimbawa yung mga major cities

in the provinces, I would say nagkakaroon din ng mobilizations tuwing may actions yung

coalition. But that's about it. If you go to the rural areas, wala eh. We started some sort of

an activity sa probinsya na parang write your congressmen na ipasa na natin tong FOI.

But people, Filipinos in particular, aren't so keen in writing. Magaling lang tayo

magreklamo but when we're asked to write, people don't. You have to present it to them,

give them the facility to be able to do that. I hope pagdating sa 16th congress kung meron

kaming energy, is to really be able to dwell. Because unless you have public support, like

what happened sa Cybercrime, walang mangyayari. Because the congressment don't feel

it. Walang pressure sa kanila. And the president does not feel it. O parang you're just a

small group. Kahit sabihin mo pang you're 200 organizations, it's still a small group. But

if you're talking about people from all over the Philippines saying now we need that, then

that's different. So yun yung isang malaking challenge and I think it should be the main

focus of the campaign rather than tututok naman kami sa congress and we've had so

many lessons already working with congressmen. Baka yun yung maging strategy for the

next congress.

11. What was in the 12th congress that organizations decided to form a coalition

together?

Wala naman. Pero I think the person who can give you a better grasp on the history of the

campaign ay si Nepo. Mas matagal siyang nasa campaign rather than us eh. Kasi nung

ininvite niya kami magjoin almost 12th congress na yun eh. Ano palang yun, Access to

Information Network. So siya and then TAN, Transparency and Accountability Network,

nauna rin sa amin eh, sina Vincent Lazatin. Maybe you can talk to him also. Sila yung

mas matagal na kaysa sa amin dun sa campaign. So I think they would have more

knowledge and understanding what went on before.

Personal Interview

Ed Lingao

February 22, 2013

1. Sir, why wasn’t the media covering the FOI bill in its early days?

I think before, walang coalition or network that was fighting for it. There were other

things that appeared on the plate of everybody else during that time. For example, in

1992, you're talking about the first presidential elections since EDSA. That's one. The

other thing is, that was the time we were having peace talks with ram. So maraming ibang

nasa plato ng mga reporter and ng mga csos. Maaring hindi pa siya nasa list of priorities

ng maraming tao. And it's easier now that you have a network. Madaling maghugot

hugot. I guess, during that time, wala pa talaga sa list of priorities ng maraming tao.

2. Kailan po kayo or ang PCIJ naging involved sa FOI?

I'm not sure kung kailan yung right Right to Know, Right Now nagcoalesce eh. I'm not

sure about that, I have to check with Malou on that because I've only been in PCIJ in

2009, so it predates me. Actually ako, just when I joined PCIJ.

During the Gloria years, not that it's an excuse, again, there were other things on the plate

of everybody else. That would include attempts to stifle press freedom directly. FOI kasi

is bit of a more indirect answer to press freedom eh. It's loosening controls on

government information. But in the time of Gloria, it was the other way around. There

were repeated attempts to crack down on the media itself on expression, not on the access

to information, but on expression. That's a step further eh. So during that time, I would

imagine the emphasis was to protect the barricades. I guess inclusions on the freedom of

expression. Alam mo yun, kasi if this is freedom of expression, the other one is freedom

of information. This is the freedom to bring out. This is the freedom to take out. They're

complementary, but one is the polar opposite of the other.

3. Ironically sir, yung pinakamalayong narrating po ng FOI was during the

14th congress. How do we make sense of that?

That is true. It's difficult to make sense of that. We've asked ourselves that several times.

How is it that it's the GMA congess that almost passed the FOI? I don't think anybody's

really come up with a satisfactory answer to that yet eh. GMA never committed to the

FOI, not like Pnoy. Pnoy committed to the FOI while he was still a candidate, and the he

recommitted himself as a president though not is a direct way. He had his

communications group engage us. I was never really satisfied with the answers that have

come out on that issue.

4. What were the answers that have come up?

Isa, baka iba yung composition ng congress. The other is that, GMA was already on the

way out. That was a time when, you might call it a lame duck thing, when the president

no longer had the same hold that she used to have over congress. That makes more sense

than the others, which could be why it did not advance as much in the previous congress,

in the 13th congress.14th congress kasi, pagoodbye na yan, eh. And GMA then was the

one of the most hated presidents during that time.

So, I would imagine that it would've been easier for legislators to be convinced that it was

the most populist thing to do, the most popular thing to do, to move on the FOI now that

the president is on her way out, and that she's very unpopular, as against now, that you

have a very popular president, one who has waffled, neither here nor there, sometimes

mukhang oo, pero sometimes mukhang hindi. Hindi mo matantya kung ano ka ba talaga.

That could signal the congress, and at the time when he's still very popular, the signals

can be taken either which way. And if you ask Ben Evardone, sabi ni Ben Evardone, I've

been waiting for a signal from the president. That's very clear. It has not come. And Ben

Evardone is on the pecking order of the LP in the campaign. If he's that close to the

president, what does that tell you? And what does that tell the rest of congress?

5. What can you say about PNoy’s claim that he's supporting the bill?

I suppose, as a matter of principle, he does support an FOIA. But you know, support is

relative eh. In the same way that everybody, every president would claim that he supports

democracy, but even that democracy could have several degrees. So, si Pnoy had quite a

lot of concerns about the FOI from the very start. In a way he's much like his mother.

Cory had general ideas about democracy which were acceptable naman, but she also had

very personal feelings about the press in the sense that she took things very personally.

Yeah you're free and I believe in freedom of expression, I believe in the freedom of the

press, pero you're hitting me eh. Although she never cracked down on the press, but she

would sometimes lash out at the press, and that would send reverberations down the line,

although not on a legal way. You might say that it's a very unpolitical or a very politically

unsophisticated way of dealing with the press, because the more sophisticated politician

would or a more savvy politician would know how to massage the press eh. Would know

how to deal with the press, and you could see that in a lot of senators. For example, kahit

inis na inis na sila, magaling sila magmasahe, they know how to get back to the good

graces of the press . Not that politicians should do that, pero you can see where Cory and

Pnoy are coming from. Sila yung tipong pag g alit sila, pag inis sila, they show it. That

could be good or bad at the same time, kasi nga whatever they say, hay ever comes out

from them has implications on the political level as well.

6. What are the factors that affect the passage of an FOIA?

You might want to narrow it down kasi ang daming factors niyan eh. Factors from the

president, or factors in congress, or in general. Pwede mong himayin ng ganun. Factor

one would be presidential support. A clear, unequivocal voice from Olympus could

clearly push it through. Everybody in congress says they're waiting for a word from the

president, and the president isn't saying anything. So if the president says, finally, that

you guys should work on that, then there shouldn't be any more excuse from the minions.

Clear, unequivocal support from the president. Number two is, assuming you get number

one, number two is a very cooperative congress. Assuming that you get number one and

assuming that the congress is still pandering to Malacanang because the president it still

very popular.

Assuming that you don't get number one, number two would be a congress that is

proactive and progressive, which appear not to have yet. Although you could see that

there are champions of the FOI in congress, pero iilan lang sila eh. In the end you go back

to the fence sittersd which is most of them. You have the very noisy ones who are

against, you have the very noisy ones who are for, and you have a big gray area of fence

sitters who would usually want to err on the conservative side of things, which is that if

we don't have to, we shouldn't.' If we don't have to release documents or information,

then huwag na lang. Let's be conservative about it. And you could imagine that almost

everybody would be on that side of the fence.

When you talk to Teddy Baguilat, the congressman who's very proactive for the FOI, si

Teddy would say na sa congress, usap usapan yan, na kung kailangan talaga, if is ano, di

susunod tayo. Pero kung di naman kailangan, ba’t pa tayo maglalabas? Ano, uungkatin

nila lahat ng detalye mula sa mga ninuno natin? A lot of them are dynasties eh. Ibang

galing sa congress, 3rd generation, 4th generation, or 2nd generation. So ang worry nila,

baka uungkatin yung mga pinaggagagawa ng mga tatay natin, lolo natin. Para saan yan?

Bakit parang gugulo lang ang buhay natin eh. That could be number four. The feeling na

hindi pa ba sapat ito that we have a very democratic government? Isn't that enough? That

is also malacanang's argument for the longest time. The DBM has been publishing data.

Several executive departments have been uploading data on the Internet which is good.

So therefore, you would have the argument that we don't need an FOI, we’re transparent

right now, which is also good but is also misleading kasi then you also have the argument

that no, you'll only last for six years. If you don’t have the structure, the mechanism, or

the legal framework that will continue the transparency after you step down, then you go

back to square one. So what, we're going to be dependent on the president who feels

today that I want to be transparent? Very personalized naman ang presidency mo.

7. What's the difference between the Senate and the HoR? Why did the Senate

pass it more quickly?

First of all, we have fewer senators. And those senators are, generally speaking, of a more

sophisticated mindset. Iba kasi. If you look at the senate, the senators are elected on a

national scale. The congressmen are elected in a very local scale. So usually, when you

are elected on a local scale, you tend to think in terms of kingdoms, little fiefdoms. A

district's actually a little kingdom where you throw in your patronage, throw in your pork

barrel and you select who which among your minions to propagate and to promote, so on

and so forth. You have more to hide in your little kingdom than you would if your

constituency was nationwide. Masmasaling magtago pag congressman. Mas mahirap

magtago pag senador. O yun, also yun nga, because you're elected on a national level,

mas sophisticated ang political thinking mo, so you tend to think in terms of what the

media wants. Pag senador ka eh, what would the media want? I know this doesn't sound

so good ah, but you tend to pander more on the media eh. Unlike the congressmen, they

tend to pander more to patronage politics. What would I need in my fiefdom for me ,to be

able to run for re-election? So iba yung realities nila. In other words, mas swabe yung

mga senador. Mas marunong sila maglaro. I’m not saying they're better.

8. Is there enough public clamor for FOI?

There's substantial public clamor. I don't know lang if you could say that there's enough

in the sense that you would want to see. Kasi alam mo, ang hirap kasi ibebenta ang FOI

sa publiko na ang main concern ay presyo ng langis, presyo ng bigas. Di mo naman

makakain ang FOI eh. Buti sana kung freedom of load or freedom of rice. Freedom of

information, ang hirap ibenta eh. Ang hirap ipaliwanag.

9. So how do you explain it to the public?

Not easy, but you as the voter or you as constituent should have the freedom to ask where

the money of your barangay is going. Bakit yung health center mo ay walang budget?

Bakit yung konsehal mo ay parang yumayaman ata at ang lakila laki ng Makati at QC

pero bakit parang naambunan lang kayo? That is how you try to deal with popularizing

the issue of FOI that it’s not just a media issue, although we would appear to be the

biggest beneficiaries, but it is your issue as a voter, as a constituent, because in the end, it

is your money. You as a taxpayer should have the freedom to ask where your money

goes. But it's still very hard. Likewise, hirap ipaliwanag yung ROR, bakit hindi maganda

yung ROR. Tama naman may karapatan dapat silang mag reply eh. Ang hirap

iargumento, and then you talk about press freedom, the right against prior restraint and all

that, the right for you to have an editorial policy of your own, from incursions by political

forces to dictate on what should be your headline. Parang hah? Ano yan? Diba dapat

patas lang naman dapat?

10. How would FOI fare in the 16th congress?

It depends on the president. I know was FOI was able to make progress despite the

former president, despite Gloria. But realities were different then eh. Realities are

different now. If the president continues to waffle on the FOI, concern is that you might

still not get an FOI even under a more democratic president. Because nga of that feeling

na democratic ka na eh, it's not needed. And si GMA kasi was not one to talk about the

FOI bill naman eh, she was not one to go into the intricacies of why she wanted or not

wanted. It was not on her radar eh. But if Pnoy says that he has concerns for the FOI

because of this and that, then the congress gets ideas. Presidente mo ganyan eh. Kung si

bossing pala may problema dun, eh bakit tayo aandar. So mas maigi pa yung kung ayaw

niya talaga, wag na lang siya umimik. Di yung eh kasi naman yung media eh kinakalkal

patients yung love life ko. If the president says that, then that sends signals to congress.

Eh siya naman, kahit hindi siya tinatanong, pinaguusapan niya yung love life niya.

11. Bakit nung 12th congress lang po na-form yung coalition?

I’m afraid I cannot answer that question.

12. How have you pushed for the FOI?

We're trying to personalize it. Ito pera mo, dapat alam mo, dapat makialam ka. What

they've been trying to do since late last year, the Right to Know Right Now coalition,

they've been trying to devolve the issue down to the local levels. The Right to Know

Right Now coalition is composed of urban poor groups, civil society individuals. Last

year, the coalition has been organizing fora, for example, women's groups in QC, in

Marikina, where the issue is explained. Kayo as women's groups you could ask about

information about the budget for health clinics, nailabas ba, nagagastos ba yung pera sa

tamang gamot. You should be able to ask that, you should be able to ask for documents

or data. We've been trying to do it that way. Sectoral issues that people can relate to.

Putting a face on transparency and government.

13. What else can the government do?

Nakarecess na eh, congress will resume in June for three days just for the purpose of

formally adjourning. There's no more hope for the 15th congress, 16th congress lang

talaga. Again you start from scratch, of course, perhaps you might have a new group of

legislators here and there, but were still taking off from where we left off which is an

administration that continues to waffle on their stance with FOI and a congress that

would take its cue from that administration. Throw in the complication that this would be

the second half of his term which in this case he'll begin to be a lame duck president by

2014. So yung influence niya would begin to wane. That can be good or bad. It's really

hard to say. It depends on which way the wind blows eh. If the president continues to be

very popular in the last few years, if he gets the wild idea of supporting the FOI then that

would be good. Pero if you leave it to a conservative congress kasi then you would never

go anywhere. You go back to that eh. You're talking about a chamber of fence sitters

who'd rather err on the side of conservatism especially when it comes to divulging

information about them. The best proof of that is the SALN. The senators have all

released their SALNs, the executive has released their SALN, walang problema dun.

Congress, you could not get them to release their SALNs. Not as a group, and not

individually. Individually, yeah, you could get a smattering of SALNs, pero generally

wala. Hindi na lahat kayo majority administration coalition? Akala ko transparent kayo?

Hindi pa rin eh. Look at it this way, we almost got it during Gloria's time despite Gloria,

so if you have a proactive congress in the 16th congress, you could, there's a chance and

it will be nice to get a push from Malacanang. But if the signals from Malacañang are on

the negative side, then pare-parehong walang chance. Ang daming ifs eh.

Personal Interview

Vincent Lazatin

March 5, 2013

1. Since when have you or your organization been active in the campaign for an

FOI?

Since pretty much the beginning of the organization so that was 2001. When we formed

the organization in early 2001, there was a national consultation for an anti-corruption

agenda. And I think one of the things that was identified in the eight point agenda was the

need for freedom of information legislation.

2. Since 2001, what factors have you noticed that either hinder or contribute to

the passage of an FOI or its development?

Well, hindrance is really lack of commitment and political will from our political leaders

to pass the legislation. In 2001... 4... 7... so 14, 13, 12. In the 12th congress is when we

started our involvement. We really didn't get much headway in the legislation. I think one

of the reasons perhaps is that there was just a small group of us pushing for it. And that

was also true for the 13th congress in 2004. Although by the 13th congress I think we

were trying to increase our number. It wasn't until the 14th congress where we made a

conscious effort to create a real campaign around FOI. And so from 2001 til about 2007,

it was just what we called the Access to Information Network. Maybe about less than 10

organizations that were involved with the Access to Information Network. So then in

2007 or post 2007 we decided that if we really wanted to try to generate more public

support we had to create a larger coalition. So it was sometime in the 14th congress when

we launched the Right to Know, Right Now campaign. And that's when we really

increased the number of advocates for freedom of information. And a conscious effort

was made to reach out to all different kinds of sectors. Whereas before the access to

information network was primarily public interest groups and media groups, by the time

we sat to expand the campaign for the Right to Know, Right Now coalition we were

reaching out to public sector, to labor, to human rights, social development, business. So

we really widened the campaign to other sectors and groups.

3. Why was it during the 14th congress that the coalition realized it needed to

get bigger?

Yeah I guess it was after going through the 12th and 13th congress unsuccessfully

without getting a significant movement in the legislation, by the 14th congress we felt

that maybe it's time to broaden the base. And also by that time, 2007, I think there were

really very heightened concerns and I think this was what was crucial because from 2001

to approximately 2005, people weren't really focusing on freedom of information as a

real, sort of good governance piece of legislation. Post Garci in 2005 when the political

situation turned bad, the Arroyo administration was put in survival mode and it terms of

corruption things started getting worse, then I think more and more groups started to

realize the importance of the freedom of information. So by the time 2007 came around,

the 14th congress, a lot more groups were talking about freedom of information.

4. Aside from forming a bigger coalition, what else were the changes in terms of

activities from the Access to Information Network to the Right to Know,

Right Now coalition?

Well for the first time, with a wider coalition, we had mass demonstrations. We couldn't

mount mass demonstrations with a handful of organizations. So we did a couple of

mobilizations to try to put pressure on the legislators to pass freedom of information.

That sort of held on since the formation of the Right to Know, Right Now coalition.

5. Why do you think the bill got to its farthest during the 14th congress?

I think a couple of things happened there and I'll contrast it with the current 15th

congress. I think that in the 14th congress the legislators were taken by surprise. I don't

think they were prepared for the legislation to go as far as it did. And so they were sort of

off guard, for those who were posing it. And then in the end, as you know, they just killed

it with call for quorum. In the 15th congress I think the volume had been raised

significantly enough. The legislators were aware of it and even the new president also

was aware of it. So that I think there was a conscious effort to make sure that it didn't

progress.

6. What can you say about the president's support or lack of support for the

bill?

I think the president has, by his actions, shown that he is not in favor of the bill. I mean I

think that's clear to us. Because if he were, then he would have passed it. Now he has said

through his spokesperson that they're not prioritizing it because they don't see the public

clamour for it. I don't recall any public clamour for Cybercrime Law and yet Cybercrime

was enacted. So I don't think public clamour is really a real issue. I think at the level of

the president, he has discomfort with sharing information especially with media. I think

his fears are one, that media is corrupt and therefore will just abuse the information. To

some extent I agree with him on that. And I think two, he fears that the information may

be abused by his political rivals or opponents. I don't agree with that. I don't think that he

should be fearful of that. If he is on the daang matuwid, no matter what information

people would dig up and try to throw at you, if there's nothing wrong, there's nothing

wrong, right? And that will die a natural death. During the time of GMA, scandals were

coming up every week and granted we didn't have access to information legislation but

the media was able to dig up the information anyway. And yet all the we threw against

GMA, nothing was enough to unseat her. So I don't see why the president, the current

president Aquino, would be fearful about that. On his fears on media, while I agree with

him that media is corrupt, I don't agree with holding FOI a hostage until media addresses

its issues. So going back to I think that's where the president stands. Now that the 15th

congress, just going back to my comparison with the 14th congress, I think the awareness

was high and therefore a lot of the opponents were on guard, as compared to the 14th

congress where they were really taken by surprise. And that's why I think in the 14th

congress it got as far as it did. And plus we did have very good champions both in the

House and in the Senate. In the 14th congress we had Senator Allan Peter Cayetano. His

predecessor earlier in the 14th congress was Senator Revilla who actually did nothing for

the bill. But when there was a change in leadership I think it was from Villar to Enrile

there was a shuffle in the committees and the committee on Mass Media and Public

Information went to Peter Cayetano. In the lower house we had Representative Benny

Abante who was initially sort of playing along with us. I don't think he was at the

beginning an advocate. What was crucial in the 14th congress was that he let

Congressman Erin Tanada take chairmanship of the TWG. And under the stewardship of

Tanada, things really moved. In the 15th congress we basically had a committee

chairman in the House in the name of Ben Evardone who from the very get go was not

for freedom of information no matter what public statements he has made.

7. What's the difference between working with the Senate and the House of

Representatives?

Well first is that they're just a sheer number. In the Senate you're working with a lot less

people. And there is in the 15th and the 14th congress, there's very little resistance in the

Senate. The most we got were some questions from the likes of Senator Arroyo, Senator

Santiago, but those concerns were overcome. In the House it's a completely different

dynamic. You got so many more people to deal with. And that makes it all the more

difficult. Because we don't have real parties in this country, you can't even work with the

parties. It's really working with individuals.

8. Why do you think there's less resistance in the Senate?

I'm not sure. One is because there's so few of them resistors can be easily identified.

When you're sitting among 23 others and you resist it, it's easy to be noticed. But I don't

know. I really can't think of any other reason but that.

9. What can you say about the issue with the current version of the bill being

"watered down?”

I think the coalition has made a stand that it doesn't believe that the bill has been watered

down. The latest draft, I forget which HB number we're talking about, I think is

something that is acceptable to the FOI advocates. We've bent a little on some areas and

these are the areas which I think are not the non negotiables.

10. What do you think, if there is any, is lacking in the campaign for the FOI?

I think what we perhaps failed to do as a campaign is to make it an everyday issue for

people. A lot of people think that freedom of information is a very high level policy issue

and that it doesn't affect the day to day lives of people. And so I think as a campaign what

we have failed to do is show... (cellphone feedback 15:13-15:30)

11. What future can you see for the bill?

The future I see is legislation in one way or another. I have a sneaky suspicion that

perhaps President Aquino will support it in the final years of his administration. Because

it's hard to be a president on a platform of good governance and daang matuwid without

having the freedom of information. So perhaps towards the end of his term we might see

him supporting the bill.

12. Why not now?

Well I think it's because of some of the fears he has that I expressed earlier. Freedom of

information, the advocacy's been around for over a decade. The president made a few

words during the campaign that we needed legislation and yet here we are with no

legislation. 10 years ago nobody was talking about Cybercrime Prevention. The president

never mentioned anything about Cybercrime Prevention in his campaign. And yet he

signed a law on cybercrime. He's made a couple of public statements about media, about

how media's abusive, he's made a reference to right of reply. So if you read into his

public statements you'll see where he lies on that. I think there's a bit of a condescending

tone, that he thinks people could not be trusted with information. And while I give his

administration credit for being the most transparent administration we've seen in decades,

there comes with that a bit of arrogance. Him saying well don't worry about transparency

because we'll release information when we want it. We're doing well so don't question us.

And I think that's the wrong attitude, for a couple of reasons. One is the president only

really has control over the executive branch. The freedom of information would cover all

three branches. Second is, by taking that stand, he's not doing anything for the

institutionalization of the access to information. Because the very next president could

very well rescind whatever EOs the president has issued in terms of disclosure and

transparency. I don't know if he's playing stupid but I'm sure he realized that.

13. What do you think about the attempts to insert a right of reply section in the

FOI?

I think the right of reply is a completely different issue and has nothing to do with the

freedom of information. And again the legislators that are trying to push that are showing

their hand in terms of their fears. And to be honest while there is a large constituency for

the freedom of infomation I don't see any constituency outside the halls of Congress

pushing for the right of reply. The constituency for the right of reply besides well within

the well of Congress, I mean it's only the congressmen and the public officials who care

for the right of reply. (feedback 19:30-19:39) But they are two separate issues and should

not be taken up simultaneously.

14. How do you think the campaign for the passage of the bill will improve?

You mean in the 16th congress? I think we made a different attack in the 16th congress.

We've learned a lot working in the 12th, 13th, 14th and 15th congress. Some of that,

those lessons, we can use in the 16th congress. Since it's a matter of strategy, I don't

know if Nepo disclosed it, but I don't think we want to reveal it just yet.

(cellphone feedback 20:35-20:57)

Well it's in the constitution.

15. The actual bill was filed in 1992 and it took a while before anyone acted on it.

Why do you think this is so?

(cellphone feedback 21:18-21:23)

So I'm not really sure why nobody picked it up. I don't know maybe there wasn't enough

public interest groups. I don't know. I'm not sure.