The Power of Access - Foi

7/25/2019 The Power of Access - Foi

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THE POWER OF ACCESS. The law requiring officials to disclose their assets and financial circumstances has helped

government file cases against 2 presidents and a Supreme Court Chief Justice

MANILA, Philippines - In February 2014, the Philippine government finallyrecovered around $30

million from multi-million dollar accountsthat the late dictator Ferdinand Marcos stashed away in

Swiss banks.What allowed the government to gain control of the money were forfeiture cases which proved that

amounts contained in the accounts exceeded the total legal income of Marcos and his wife Imelda

while they were in office. Evidence used to prove the governments case included the financial

disclosure statements filed by the Marcoses while in office.

It took the government almost 3 decades to recover the money. Neither Marcos, nor his wife Imelda,

were ever convicted of any wrongdoing.

No laggard?

TheAnti-Graft and Corrupt Practices Act, the law that required the Marcoses to file those disclosure

statements dates back to the 1960s. In 1989, years after the Marcoses were booted out of office, the

Philippine Congress enacted a newlaw which allowed the public to access and photocopy the assets

and liabilities statements.

Since then, the law has been used to prove a plunder case against another president (Joseph

Estrada), impeach then remove achief justice (Renato Corona),file cases againstcorrupt

generalsand lately, support thefiling of charges against sitting senators.

That the Philippines enacted such a law almost 3 decades ago is significant because as of 2006, a

World Bank study showed that only 31 of 101 countries that require government officials to declare

their income and/or assetsmandate that such declarations or a summary should be made available

to the public.

This implies that the Philippines is no laggard when it comes to laws allowing access to public

information.

Constitutionally-mandated right

The people's right to information on matters of public concern has been constitutionally recognized in

the country since 1973.

Section 6. 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, shall be afforded the citizen subject to such limitations as may be provided by law.
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-Bill of Rights, 1973 Constitution

After the 1986 Edsa uprising ousted the Marcos dictatorship, this right was further expanded in

the1987 Constitutionto include access to research data used as basis for policy development.

And while there is no enabling law yet on access to information, the Philippine Supreme Court has

already ruled, in more than one occasion, thatthe constitutional mandate is enforceable.

In fact, theCode of Ethics of government officialsthe same law that mandates public access to

financial disclosure statements of government officialsalso makes it the obligation of public officials

and employees to make documents accessible to the public.

The implementing rules of this law helped institute a system of promotingtransparency of

transactions and access to government information. It also sets limits of access.

More recently, the Aquino administration has been making strides in promoting transparency in

government by proactively disclosing budget and project documents.

It is no small wonder then that whilethe Senate has approved the bill on 3rd reading, members of

the House of Representativescontinue to drag their heels on the freedom of information law.

Because if those laws are already in place, why then is an access to information law still necessary?

To help answer that question, Rappler, with the support of the Friedrich Naumann Foundation,

analyzed freedom of information laws in other parts of the world. We noted these common featuresin the laws we studied:

an overall policy making information available

limits of access

prescribed process by which information may be accessed, cost of access, and processes

for appealing request refusals

in recent cases measures to ensure that access policies are enforced through oversight

bodies and penalty clauses
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TRANSPARENCY VS CORRUPTION. Giving public access to financial disclosures and budget releases could help

reduce leakage of public funds through corruption

Uneven, selective release of information

In the Philippines, while theCode of Ethicsdoes make it the obligation of government offices to

make public documents available, journalists have found time and again that requests may be

refused without any clear grounds.

Selective release is true even for requests for asset disclosure statements despite the clause in the

law that specifically requires custodians to make such documents available for duplication within 10

days after they have been received.

Three years since the impeachment trial, for example,the House that prosecuted former chief justice

Corona has yet to create rules releasing the disclosure statements of its own members.

In place of SALNs, the House only releases a summary of the wealth of House members in a matrix

that includes the total amount of real properties, personal properties, total assets, liabilities and net

worth of each lawmaker. (READ: Solons from poorest region among richest in Congress).

Rapplersrequest for the full copies of the SALNsof lawmakers, which we file every year, has been

repeatedly denied.
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This is in stark contrast with its co-equal branch, the Senate, which regularly releases the full copies

of statements to media.

TheGovernment Procurement Reform Actalso mandates transparency in the procurement

processes and equal access to information for bidders but stops short of requiring access to the

actual contracts.

Oftentimes, journalists have to go through insiders to get copies of government contracts.

Short of going to court, which can be expensive and time consuming, there is no clear process for

appealing refusals of requests for information.

Bias for access

Instead of confining access to certain types of information, FOI laws generally make access thedefault policy.

The website of theUKs Information Commissioners Officeexpounds on this in instructions to

authorities required to release information:

Remember you (authority) are required to disclose requested information unless there is good

reason not to. It is your responsibility to show why you should be allowed to refuse a request, so it is

in your interests to co-operate fully with our investigation.

In rare circumstances when a public authority persistently refuses to co-operate with us, we canissue an information notice. This is a legally binding notice, requiring an authority to give us the

information or reasons we have asked for.

The UK system simplifies access such that all a person needs to do is to:

contact the relevant authority directly;

make the request (verbal or in writing)

give his real name; and

give an address (postal or email) to which the authority can reply

Instructions on the UK Information Commissioners' website says the requester does not need to

mention the FOI or even know that whether the information is covered by the FOI.He does not even

have to explain why he wants the information.
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This is vastly different from current practice in Philippine government offices where those requesting

for information are required to justify why they should be given access.

Limits to access

Those who are lukewarm to the proposed FOI law claim that this could allow sensitive government

information to fall in the hands of bad social elements, "enemies of the state" or even "irresponsible

media."

But FOI laws also typically set limits of access or grounds for refusal of requests. Among the

countries whose laws were reviewed by Rappler, grounds for refusal usually include a list of

exemptions, which include these types of information:

security, national defense and public safety

information relating to unfinished/ongoing legal proceedings, investigations

trade and business/commercial interests

international relations / diplomacy

administrative matters such as inter or intra agency memoranda

personal privacy

This does not mean that the public is totally barred from accessing such information. In some cases,

information included in the exemptions list may still be accessed if clear public interest is invoked.

This is done in the appeals process.

The FOI laws of Norway, Sweden and Japan specifically state that exemptions may be lifted if need

for access outweighs reasons for exemptions.


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FULL TRANSPARENCY. A law on access to information would address accusations of bias in the release of

information and ensure that reforms will outlive the current administration.

Preserving information

Another important feature of FOI laws in countries Rappler studied are provisions requiring note-

taking, recording and archiving or protecting information.

This is a policy wherein information, especially verbal ones passed on during meetings, are duly

noted down and kept in a journal or register and is properly archived and protected.

In the Philippines, duty to record and from time to time publish congressional proceedings,

including how members of Congress voted, has been constitutionally mandated since as far back as

the 1935 Constitution. The only thing exempted from this mandate were proceedings on matters that

may affect national security.

In practice, however, a significant part of congressional budget proceedings, includingrecords on

amendments to the national budget, never make it to publicly available records.

And while the Aquino administration has indeed undertaken efforts to make budget information more

transparent, information that finally came out following thecontroversy over the Priority Development
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Assistance Fundand theDisbursement Acceleration Program (DAP)clearly show that much about

government financial transactions are still hidden from the public eye.

More on Rappler's coverage of the pork barrel and other discretionary funds here.

Consider this: letters and emails from politicians requesting for release of funds and responses to

such requests would have been part of accessible information if the Philippines had an FOI law

similar to that of Sweden.

Oversight, penalties

One thing that is also clearly missing in the Philippines is a body designated to oversee that access

to information is indeed enforced. There are also no penalties for officials who whimsically refuse

requests for access.

Among the 15 countries in the Rappler study, only Denmark, Norway, Netherlands and Finland have

no independent oversight bodies. The UK, USA, Sweden, Australia, Canada, Ecuador, Germany,

Thailand, Indonesia, Japan all have oversight bodies.

Most oversight bodies are mandated to:

actively oversee the compliance of the law

act as mediator / settle disputes

receive & examine appeals, complaints

in some cases, perform investigations

Oversight bodies need not be new government entities. In the case of Ecuador, Sweden and New

Zealand, existing bodies such as the Ombudsman, the Public Defender & the Chancellor of Justice

were tasked to investigate FOI-related complaints.

Because they already have prosecutorial powers, the functions given to these bodies include

prosecuting offenses.

Penal sanctions are also typical of newer FOI laws, Rapplers study shows.

The United Kingdom, which enacted its first FOI in 2000, penalizes individuals who deliberately

destroy, alter, block access, conceal public info with the intention of preventing disclosure of that info

with a maximum fine of 5,000 British pounds (over US$8,500).
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Much closer to home, the Indonesian FOI punishes officials that deliberately disregard to provide or

publish public information promptly and in the process causes harm to other persons with

imprisonment of up to 1 (one) year a fine of not more than 5,000,000.00 rupiahs (or US$428).

Think of the impact such a policy would have on information that could affect public safety and

welfare.

Proactive publication, open data, citizen audit

Perhaps the biggest argument for enacting an FOI in the Philippines is the need to institutionalize

access to government data and information online in open, machine-readable formats.

Making information immediately accessible online is crucial to transparency as it eliminates backlog

in processing requests for access. Indias quandary,having to manage over 2 million requests for

information, highlights this need.

In addition, given available crowdsourcing technologies, access to open dataparticularly data on

government financial transactionscould prevent corruption as it could empower people to monitor

resources supposedly released to their communities.
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OPEN DATA. Access to budget data will empower the public to participate in the audit of government funds

This helps hasten and widen the scope of the audit and addressaccusations of political bias in the

auditing of public funds. Remember,the report that the Commission on Audit released in

2013covered transactions from 2007 to 2009--almost half a decade too late.

As Budget Undersecretary Richard Moya said, opening up the data would "make auditing

everybody's business."

While the Aquino administration has indeed taken steps to making machine-readable informationavailable to the public through theOpen Data Portal,Rapplers own review of the contents of the

portal shows that available data still falls far short of what is known to be kept by most government

offices. In many cases, only summaries are providednot granular, verifiable data. Data is also not

updated in a timely fashion.
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Clearly, a little push is still necessary to get data guardians in government to share their data. Such a

provision in the law would also help ensure that the initiative will outlast the current administration.

Remember the claim of the Philippine National Police that what may seem like a surge in crime only

meanscrime figures are reported more truthfully now?

It would be interesting to have access to crime data and see how much of what is logged in police

blotters for every station every day actually make it tonational crime statistics.

Balancing act

As Congress continues to dilly-dally on the Philippines' first FOI, it is worth noting that in most of the

countries with right to information laws, these laws have not remained static since they were first

approved.

Changes or amendments were made as part of a balancing act between access, privacy and

national security/ protection of state secrets.

Sweden, the first country to enact a law on Freedom of Information (1776), passed a Secrecy

Ordinance in 1980. In 2009, it balanced access and secrecy throughThe Public Access to

Information and Secrecy Act.

The United States, the first country outside Europe to adopt such a law in 1966, has replaced,

revoked, vetoed, and reinstated provisions of the law so many times as the US government

responded to issues and scandals that rocked the White House.

In 2007, years after the 9/11 tragedy traumatized the country, the US Congress passedThe Open

Government Act of 2007.Clearly, it is possible to balance concerns over security with the need

for transparency.

At the end of the day, its really a question of whether we want to wait for another 3 decades to

recover money lost through corruption, as in the case of the Marcos wealth, or we want to prevent or

reduce corruption and abuse of office by making processes more transparent now. with research

by Nigel Tan, Leilani Chavez and Wayne Manuel / Rappler.com
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NEW HOPE. The house opens anew with its period of interpellation on the passage of the Bangsamoro Basic Law at

the second regular session of the 16th Congress at the House of Representatives in Quezon City on Tuesday, June 2.

Photo by Ben Nabong/Rappler

MANILA, Philippines The 16th Congress adjourned this week so its members could prepare for the

campaign period. When senators and congressmen return to session on May 22 after the nationaland local elections, how much work awaits them in the remaining 3 weeks or 9 session days of

their terms?

A lot, if we are to go by the bills endorsed by President Benigno Aquino III in his last 3 State of the

Nation Addresses (SONAs).

Congress had its last session day on Wednesday, February 3, with only two of the 49 bills endorsed

by Aquino passed. These were the Foreign Investment Act and the establishment of the Department

of Information and Communication Technology.

This doesn't mean, however, that Congress wasn't working hard. Out of their own priority lists,

the House said a total of 116 laws were passed in the last 3 years, while the Senate said a total of 59

bills are awaiting the President's signature to become laws.

Endorsed in SONAs 2013-2015

Rappler listed 49 bills endorsed by the President to Congress at the start of their sessions from 2012

to 2015. We tallied the following:

Passed by both chambers - 2

Passed by the House of Representatives but pending in the Senate - 8

Passed by the Senate, pending in the House - 2

Pending in both chambers - 14

Filed in the House, none in the Senate - 4

Filed in the Senate, none in House - 0

A number of the pending bills seek to improve governance: the amendment of the Civil Service

Code, a national transportation policy, and strengthening the regulation of water utilities.

The pending bills also include the most controversial ones under the Aquino administration: the

proposed Bangsamoro Basic Law (BBL), Freedom of Information Act (FOI) and anti-political dynasty

bill.


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Before the House adjourned for Christmas in 2015, Speaker Feliciano Belmonte Jr said there was

stillhope for these landmark measures. Senate President Franklin Drilon also expressed optimism

on these measures before the year ended.

But after several session days without quorums and with heated debates between parties, the BBL

got stuck in the period of interpellations. The FOI and the anti-dynasty bills, on the other hand, didn't

have any progress in the past weeks. (READ:Bangsamoro Basic Law is not yet dead)

Civil security policies such as the anti-enforced disappearances law and the Whistleblowers

Protection Act were also left unnoticed. The labor sectors much-clamored personal income tax

reform has been considered dead since the Senate and House leaderships gave up on it in late

2015.

Among the important ones awaiting Senate action are the establishment ofspecial education centers

(SPED)in public schools; and economic bills, such as adding P150 billion to the capital ofthe Bangko Sentral ng Pilipinas (BSP) and relaxing the restrictions onforeign investments.

Congress' priorities

Throughout its term, the 16th Congress has been able to enact 17 or 34% of its priorities. These

were mostly economic policies endorsed by the President too. These included laws that seek to level

the playing field among business stakeholders, such as thePhilippine Competition Act and the

Cabotage Law.

Education assistance was also prioritized with the enactment of theIskolar ng Bayan(state scholar)Actand the Unified Student Financial Assistance System for Tertiary Education(UniFAST)Law.

Based on House records, a total of 116 laws were signed under the 16th Congress. Some of the

notable ones are:

An Act Allowing the Full Entry of Foreign Banks

An Act to Deter Illegal, Unreported and Unregulated Fishing

Sugarcane Industry Development Act

Youth Entrepreneurship Act

Microfinance NGOs Act

Increase in the subsistence allowance for members of the police and the military

Regulation of naval architecture to ensure the competitiveness of Filipino shipbuilders

Children's safety aboard motorcycles
http://www.rappler.com/move-ph/issues/corruption/116310-2015-news-yearender-congress-foi-bangsamoro-dynastyhttp://www.rappler.com/views/imho/120931-bangsamoro-basic-law-not-deadhttp://www.rappler.com/move-ph/issues/education/51277-long-way-special-educationhttp://www.rappler.com/move-ph/issues/education/51277-long-way-special-educationhttp://www.rappler.com/business/211-governance/115117-mbc-statement-economic-provisions-constitutionhttp://www.rappler.com/business/211-governance/115117-mbc-statement-economic-provisions-constitutionhttp://www.rappler.com/move-ph/issues/corruption/116383-2015-news-yearender-congress-bills-passedhttp://www.rappler.com/move-ph/issues/corruption/116383-2015-news-yearender-congress-bills-passedhttp://www.rappler.com/nation/96869-iskolar-ng-bayan-law-upcathttp://www.rappler.com/nation/96869-iskolar-ng-bayan-law-upcathttp://www.rappler.com/nation/96869-iskolar-ng-bayan-law-upcathttp://www.rappler.com/nation/94284-senate-approves-unifast-bill-scholarshipshttp://www.rappler.com/move-ph/issues/corruption/116310-2015-news-yearender-congress-foi-bangsamoro-dynastyhttp://www.rappler.com/views/imho/120931-bangsamoro-basic-law-not-deadhttp://www.rappler.com/move-ph/issues/education/51277-long-way-special-educationhttp://www.rappler.com/move-ph/issues/education/51277-long-way-special-educationhttp://www.rappler.com/business/211-governance/115117-mbc-statement-economic-provisions-constitutionhttp://www.rappler.com/move-ph/issues/corruption/116383-2015-news-yearender-congress-bills-passedhttp://www.rappler.com/move-ph/issues/corruption/116383-2015-news-yearender-congress-bills-passedhttp://www.rappler.com/nation/96869-iskolar-ng-bayan-law-upcathttp://www.rappler.com/nation/96869-iskolar-ng-bayan-law-upcathttp://www.rappler.com/nation/94284-senate-approves-unifast-bill-scholarships


13/13

National Athletes, Coaches, and Trainers Benefits and Incentives Act

Graphic Health Warning Act

Laws on increasing bed capacities in public hospitals

The office of Senate President Franklin Drilon said there are a total of 59 bills awaiting the

President's signature. These include:

Acquisition of road right of way for government infrastructure projects (ROW)

Amendments to the Philippine Deposit Insurance Corporation Charter (PDIC)

Governing the Operations and Administration of the Overseas Workers Welfare

Administration (OWWA)

Providing for the Development and Promotion of Farm Tourism in the Philippines

Mandating the Installation of Speed Limiters and Setting Speed Limits for Public Utility Buses

Expanding the benefits and privileges of Persons with Disability (PWD)

Amending Section 109 (A) and (F) of the National Internal Revenue Code, As Amended By

Republic Act No. 9337 (VAT Exemption for Sugar Cane)

Making Election Service Non-Compulsory For Public School Teachers

Extending the life of the Human Rights Victims Claims Board, to complete its work within four

years from 12 May 2014

Amending the Period of Collection and Utilization of the Agricultural Competitiveness

Enhancement Fund (ACEF)

Rappler.com

Documents

The Power of Access - Foi