What is Freedom of Information or FOI?

The Freedom of Information (FOI) Program is the government’s response to call for transparency and full public disclosure of information. FOI is a government mechanism which allows Filipino citizens to request any information about government transactions and operations, provided that it shall not put into jeopardy privacy and matters of national security.

The FOI mechanism for the Executive branch is enabled by the Executive Order (EO), No. 2, series of 2016. EO 2 is an important enabling mechanism to promote transparency in the government's administrative process. Through FOI, citizens are empowered to make a formal request to get information held by the government, barring certain sensitive and important data related to national security. FOI complements continuing proactive information disclosure efforts where agencies are duty-bound to publish information in the spirit of openness and transparency.

The Presidential Communications Operations Office (PCOO) oversees the implementation and operationalization of the FOI Program pursuant to Memorandum Order No. 10, s. 2016 issued by the Office of the Executive Secretary. PCOO serves as the coordinator of all government agencies to ensure that the FOI Program is properly implemented.

For more information visit the The FOI-PMO's FOI Portal an innovation that eases request for information.

Limitations of an Executive Order

Executive Order No. 2 is an important first step in enforcing the right to information. However, it is significantly limited because it is only an executive order and not a comprehensive law covering all parts of the state. As such, it does not apply to the legislative or judicial branches.

In addition, when compared to international standards, the Order includes the following weaknesses:

Section 2 limits the Order to cover national executive government offices only. Local governments are only “encouraged to observe and be guided” by its provisions. This leaves significant space for them to arbitrarily decide whether to accept or reject requests for information at the non-national level.

Section 18 limits the Order only to override or repeal existing regulations, rules, and orders, not laws. Any existing legislation which restricts the right to information remains in force.

Sections 3 and 9 limit the Order to Filipino citizens only. Section 3 limits the right of access to “every Filipino”. This is enforced in Section 9 which requires “valid proof of identification or authorisation”. As a basic human right, the right to information should be open to all people. Requirements to show identification are likely to disproportionately impact poor and/or displaced people, who may not have access to identification.

Section 4 does not define which information is exempt. The Order includes a number of concerning issues relating to exemptions: 1) exempted information is to be decided by the Department of Justice and the Office of the Solicitor General in 15 days from the date of effect, without public consultation; 2) the list of information can be changed without proper process; 3) information that is limited by any existing laws will be exempt; 4) exemptions are absolute, without consideration of harm or public interest; 5) the Data Privacy Act 2012 may limit access to personal information in many cases.

The presumption of release is limited. While the order states that all information is presumed to be public, when information falls under the exemption list, there is a very limited provision to release information that only applies if the denial “is intended primarily and purposely to cover up a crime, wrongdoing, graft or corruption”. Therefore, for example, if the denial is to protect privacy or commercial confidentiality and hides corruption or toxic pollution releases, it will not apply.

Section 10 requires applicants to show reasons for the request. Section 10 requires that applicants show proof of identification and provide “the reason for, or purpose of, the request for information.” This is somewhat limited in the following sentence about denials but still violates the right to freedom of information as well as the Philippine Constitution which does not include this requirement.

Section 13 does not include an independent oversight body. While there is a mandatory internal appeal, and then appeals to a court, there is no provision for an independent oversight body such as an ombudsman to review the decision or to review the implementation of the rule.

 

The Need for a Bill

With all the limitations mentioned,  the FOI-PMO Team has been working on a proposed bill that would further broaden the scope of FOI in our Government. 

In December 2019, Congressman Alfred Vargas filed House Bill No. 05776 also known as  the Freedom of Information Act of 2019. HB No. 05776 has adopted the features proposed by the FOI-PMO.

Features of Proposed Bill

 No Wrong Door Policy

This feature of the bill provides a mechanism where an information requested to an initial agency can be referred and transferred to a correct agency.    

Records Management 

The Records Management provision is present in the current FOI Bill/s pending before the legislation. The difference is that, in the draft Bill, the FOI/RTI/Information Commission is tasked, together, to establish a Code of Practice on Records Management.

The creation of a separate Code of Practice would address the demand to amend/repeal a process more easily than going through the rigors of passing a law. 

Creation of the Freedom of Information / Right to Information Commission

This draft proposes the creation of an oversight body which can be called Freedom of Information Commission, Right to Information Commission, or Information Commission. Some countries and states which have a set-up like this includes the United Kingdom (UK), Scotland, France, and Canada. The creation of a Commission is advantageous especially in addressing violations of the right of access to information.

The establishment of a Commission will help in the redress in cases of violation of this right by virtue of an appeal remedy. The Commission may also perform technical assistance and guidance to government agencies in the implementation of the right of access to information. Since it is the gatekeeper of government information, it will have a clear understanding of what information may not be released because of the exceptions under the law. But most importantly, this Commission shall function as an independent body that shall oversee the nationwide exercise of the right of access to information.

Central Appeals and Review Committee

There will be a Central Appeals and Review Committee (CARC) to be created for each covered government agency.  This feature will enable the government agencies to resolve the dispute at first hand regarding requests for information before resorting to the Ombudsman or to the regular courts of law.

Functions of the Office of the Ombudsman 

This is a unique feature of the Bill as it gives power to the Ombudsman to investigate and review decisions coming from the CARC for any acts mentioned under the Bill.

The best practice of New Zealand is adopted as regards this portion of the Bill. The Official Information Act of 1982 is the current FOI/RTI law of New Zealand.

FOI-PMO as Interim Commission

The FOI-PMO will serve as an interim commission to ensure continuity of the FOI Program and continue to provide capacity development.

Coverage 

The Bill will include all government agencies, not just the Executive Branch. Also, private individuals or entities dealing, contracting, or transacting, of whatever nature, with the government or government agency that utilizes public funds.

Extraction Method and Public Interest Test

The extraction method is applied in the UK Information Commissioner’s Office wherein a request for a government information or document will not be denied on the ground that some portions are not to be disclosed. FOI request may be granted by disclosing only the pertinent portion of a government document.

Also, requests for government information or document, although covered by the exceptions, may be granted if the disclosure involves public interest.

Classification and Declassification of government information and documents

The implementation of FOI will be effective, efficient and convenient if government information or documents are classified in accordance to whether these are disclosable or not. However, a feature is provided that if a classified government document has already reached fifty (50) years, it shall be declassified.

Call to Action

Call to Action
Take a stand today and tell our lawmakers to prioritize the passage of the House Bill No. 05776 or the Freedom of Information Act. Let’s make our government more transparent and accountable to its citizens; and let’s be more informed and engaged in our democracy through Freedom of Information.

Ang PILIPINO, may ALAM at may PAKIALAM! 
#FOILawNaman

For more information, updates and announcements on the proposed bill, please visit our official FB Page