House finally has FOI bill, but with exceptions

Posted at 09/04/2014 12:26 AM

MANILA - After more than a year of languishing at the committee level, the technical working group of the House Public Information committee has finally come up with a consolidated freedom on information (FOI) bill that seeks to institutionalize more transparency in the government.

The bill will now face approval by the mother committee before being discharged to plenary.

Public Information committee chair Jorge Almonte, in a text message, said, "FOI bills already harmonized yesterday with the majority of the authors agreeing on the FOI version to be considered by the mother committee. The function of the TWG in effect ended yesterday."

A closer look at the bill, however, shows it imposes many exemptions.

(a) The information is specifically authorized to be kept secret under guidelines established by an executive order, and in fact properly classified pursuant thereto: Provided, That 1) 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 shall 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: Provided further, That the executive order shall specify the reasonable period after which the information shall be automatically declassified or subject to mandatory declassification review, and that any reasonable doubt as to classification and declassification shall be settled in favor of the right to information;

(b) The information consists of records of minutes and advice given and opinions expressed during decision-making or policy formulation, invoked by the Chief Executive to be privileged 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;

(c) The information requested pertains to internal and/or external defense, law enforcement, and border control, when the disclosure thereof would:

(i) unduly compromise or interfere with any legitimate military or law enforcement operation; or

(ii) unduly compromise or interfere with the prevention, detection or suppression of criminal activity, the effective implementation of immigration controls and border security; or

(iii) deprive a person of a right to a fair trial or an impartial adjudication; or

(iv) 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 information on a confidential basis, and, in the case of a record or information compiled by a law enforcement authority in the course of an investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source; or

(v) disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

(vi) endanger the life or physical safety of any individual;

(d) The information requested consists of drafts of the following: orders, resolutions, decisions, memoranda or audit reports by any executive, administrative, regulatory, constitutional, judicial or quasi-judicial body in the exercise of their adjudicatory and/or audit function;

(e) The information requested is obtained by any committee of either House of Congress in executive session;

(f) The information requested pertains to personal information of a natural person, whether from the public or the private sector, and its disclosure would constitute a clearly unwarranted invasion of his or her personal privacy. This may include signatures, addresses, telephone numbers, identification numbers, family members, race or ethnicity, religion, health, education, sexual orientation, and similar information, unless such information is specifically required by law to be entered into an official record and made available to the public, or the person has consented in writing to the disclosure of the information. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete such information from a record made available to the public. However, the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published.

(g) The information requested pertains to trade secrets and commercial or financial information or intellectual property obtained from a natural or juridical person other than the requesting party, whenever the revelation thereof would seriously prejudice the interests of such natural or juridical person in trade, industrial, financial or commercial competition;

(h) The information is classified as privileged communications in legal proceedings by law or by the Rules of Court, unless the person entitled to the privilege has waived it;

(i) The information requested is exempted by law or the Constitution, in addition to those provided in this section;

(j) The information is of a nature that its premature disclosure would, in the case of a government agency that regulates or deals with currencies, interest rates, securities, commodities, or financial institutions, likely lead to fraud, manipulation, or other unlawful acts or schemes involving currencies, interest rates, securities, or the commodities market or, in the case of other government agencies, likely frustrate the effective implementation of a proposed official action: Provided, that the information shall be accessible once the anticipated danger has ceased.

(k) The information has already been made accessible as provided for in Section 12.

For paragraphs (c) to (k) of this section, the determination whether any of these grounds shall apply shall be the responsibility of the head of office of the government agency in custody or control of the information, or any responsible central or field officer/s duly designated by him.

The exceptions are qualified as such:

1. The exceptions cannot be invoked to cover-up a crime, wrongdoing, graft, or corruption;

2. Whenever the information covered by an exception may be reasonably severed from a record, the record shall be released with the exempt information redacted, or the information not covered by the exception shall otherwise be communicated to the requesting party;

3. The President, the Supreme Court, the Senate, the House of Representatives, and the Constitutional Commissions may waive an exception with respect to information in the custody of offices under their respective supervision or control, when they deem that there is an overriding public interest in disclosure; and

4. The exceptions do not constitute authority to withhold information from Congress, nor authority for the executive branch of a local government unit to withhold information from the legislative body of such local government unit.

In addition, the bill also provides the full protection of the right to privacy of individuals, as follows:

(a) A government agency must ensure that personal information in its custody or under its control is disclosed only as permitted under this Act;

(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 access, collection, use, disclosure, or disposal;

(c) An employee, officer or director of a government agency who has access, whether authorized or unauthorized, to personal information in the custody of the agency, must not disclose that information except as authorized under this Act.

It also mandates the following national officials to provide to the public, through the websites of their respective offices, their Statement of Assets, Liabilities, and Net worth (SALN) on an annual basis, subject to Section 5 and Section 7 (f) of this Act:

(1) the President;
(2) the Vice- President;
(3) the Members of the Cabinet;
(4) the Members of the Senate and the House of Representatives;
(5) the Justices of the Supreme Court;
(6) the Commissioners of the Constitutional Commissions and other constitutional offices; and
(7) the officers of the Armed Forces with the rank of general or the equivalent flag rank.

All agencies of all branches of government shall publish on their websites and update on a monthly basis, a register of the following:

(1) Freedom of Information Manual in full;

(2) Rules of Procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(3) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency, including subsequent amendments;

(4) Public interest documents or records, including:

(i) Annual Budget of Government Agencies
(ii) Itemized Monthly Collections and Disbursement
(iii) Summary of Income and Expenditures
(iv) Component of the Internal Revenue Allotment (IRA) Utilization
(v) Annual Procurement Plan and Procurement List
(vi) Items for Bidding
(vii) Bid Results on Civil Works, and Goods and Services
(viii) Abstract of Bids as Calculated
(ix) Procurement contracts entered into by a government agency
(x) Construction or concession agreements or contracts entered into by a government agency with any domestic or foreign person or entity;
(xi) Private sector participation agreements or contracts in infrastructure and development projects under Republic Act No. 6957 otherwise known as the Philippine BOT Law, as amended by Republic Act No. 7718;
(xii) Public funding extended to any private entity;
(xiii) Bilateral or multilateral agreements and treaties in trade, economic partnership, investments, cooperation and similar binding commitments;
(xiv) List of persons or entities who were granted licenses, permits or agreements for the extraction and/or utilization of natural resources given by any government agency;
(xv) Statement of Assets and Liabilities of the public officers of the government agency; and
(xvi) Guarantees given by any government agency to government-owned or -controlled corporations and to private corporations, persons or entities.

Any violation shall be tantamount to gross neglect of duty and shall constitute grounds for administrative and disciplinary sanction against any public official or employee who willfully and knowingly commits the following:

(a) Refusal to promptly forward the request under Section 18 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) Claim an exception under Section 7 of this Act when the claim is manifestly devoid of factual or legal basis;

(d) Refusal to comply with the decision of his immediate supervisor, the Ombudsman, or of any court ordering the release of information;

(e) Approval of 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.

It also imposes Criminal Liability. (a) The following acts shall be subject to the penalty of imprisonment of not less than one (1) month but not more than six (6) months, with the accessory penalty of dismissal from service: (1) Falsely denying or concealing the existence of information mandated for disclosure under this Act; and (2) Destroying, or causing to be destroyed, information and/or documents being requested under this Act, for the purpose of frustrating the requesting party's access thereto. (b)Any private individual who knowingly 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. (c) The acts under paragraph (a) of this Section, if proven in an administrative proceeding, shall be subject to the penalty of dismissal, even if no criminal prosecution is instituted against him.

Any person who wishes to obtain information shall submit, free of charge, a request to the government agency concerned personally, by mail, or through electronic means.

The public official receiving the request shall provide reasonable assistance, free of charge, to enable all requesting parties and particularly those with special needs, to comply with the requirements under this Section.

The government agency shall comply with such request as soon as possible, and in any case within 15 working days from the receipt.

There is a provision for denial in good faith. "SEC 16. Denial in Good Faith Not a Ground for Liability. – A denial in good faith of a request for access to information made pursuant to the provisions of this Act shall not constitute grounds for administrative or criminal liability."

If the government agency decides to deny the request, in whole or in part, it shall, as soon as practicable, and in any case within 15 working days from the receipt of the request.

In all government agencies other than the judicial branch – (1) A denial of a request for access to information may be appealed to the Head of Agency, following the procedure required under Section 17 (a) (8) of this Act: A person denied access to information may file a verified complaint with the Office of the Ombudsman. a party whose request for information has been denied, whether or not such decision has been appealed to the Head of the Agency, the requesting party may file a verified petition for mandamus in the proper court.

The Judiciary shall be governed by such remedies as promulgated by the Supreme Court.

The FOI bill is looked upon by its advocates as an effective deterrent to corruption.