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Duterte signs historic EO on Freedom of Information

President Rodrigo R. Duterte signs the Freedom of Information (FOI) Executive Order in Davao on July 23. The document is a commitment of the President to the Filipino people to bring transparency in government transactions. The EO covers all agencies under the executive branch. Simeon Celi/Presidential Photographers Division
MANILA, Philippines — A landmark order that would require all government offices under the executive branch to disclose details of their transactions has been signed by President Rodrigo Duterte in a move that officials said would promote transparency and strengthen public participation in governance.
 
The executive order (EO) implementing the freedom of information (FOI) in the executive branch was signed by Duterte in his hometown in Davao City last Saturday, two days before he delivers his first state of the nation address (SONA) and three weeks after he assumed office.
 
“This is already a record-breaking speed of cornerstone or a milestone or landmark executive order being signed,” Communications Secretary Martin Andanar said in a press conference in Davao City Sunday.
 
Andanar claimed that the timing of the signing of the EO had nothing to do with Duterte’s first SONA.
 
“On the first day of President Rody Duterte on June 30, we already pushed for an executive order on the freedom of information. There was substantive pushing and pulling and additions to this executive order for a more transparent executive branch,” Andanar said.
 
“It just so happened that the executive order was finalized Saturday night,” he added.
 
The order was supposed to be signed as early as two weeks ago but officials claimed it was “overtaken by events” like the issuance of the ruling on the South China Sea row by a Hague-based arbitral tribunal. The court ruled in favor of the Philippines and declared that China’s expansive territorial claim has no legal basis.
 
Andanar said there have been moves to push for an FOI law in Congress in the last 29 years but they were unsuccessful. Bills seeking to implement the FOI in all government branches have been filed since the 12th Congress but they were bypassed due to concerns by some lawmakers that they might be used for black propaganda.
 
The historic EO was still unnumbered as of Sunday, Andanar said copies of the order with a number and the presidential seal would be available on Monday. The order was drafted by the offices of the presidential communications chief, the executive secretary, and the chief presidential legal counsel after a series of consultations with transparency advocates.  

Congress, judiciary not covered

The EO will cover all government offices under the executive branch including the national government and all its offices, departments, bureaus, offices and instrumentalities. It will also be implemented in state-run firms, universities and colleges.
 
The order will not cover Congress and the judiciary because of the doctrine of the separation of powers. Andanar said it would be up to the legislature to decide whether to enact an FOI law that would cover all government branches.
 
“Congress is an independent branch of government and the president believes in the independence of each independent branch of government,” Andanar said answering a question on whether Duterte would ask Congress to pass an FOI law.
 
Local government units, however, are encouraged to observe and be guided by the order.
 
The order defined “information” as the following:
  • records
  • documents
  • papers
  • reports
  • letters
  • contracts
  • minutes and transcripts of official meetings
  • maps
  • books
  • photographs
  • data
  • research materials
  • sound and video recording
  • magnetic or other tapes
  • electronic data
  • computer stored data or other like or similar data or materials
  • recorded stored archived or whatever format
“Every Filipino shall have access to information, official records public records and documents and papers pertaining to official acts, transactions and decision as well as government research data used as basis for public development,” the order read.

Exceptions

Requests for information, however, will be denied if they fall under exceptions provided in the constitution, laws or jurisprudence. The Justice department and the solicitor general's office were directed to come up with an inventory of exceptions and submit them to Duterte within 30 calendar days from the effectivity date of the order.
 
The inventory of exceptions will be updated periodically to reflect changes in existing laws and jurisprudence. Andanar said among the information that would not be released are those that “put the government in danger in terms of national security.”
 
Officials who refuse to release information that do not fall within the exceptions may face administrative charges, he added.  
 
The order also reminded officials to file and to make available their statements of assets liabilities and net worth.
 
The head of the government office, which has custody or control of the information being sought or his duly designated official will determine whether the exceptions are applicable to the request.
 
Heads of  offices or their duly designated representatives were ordered to “exercise reasonable diligence” to ensure that the exceptions or denials of requests would not be used to cover up a crime or any wrongdoing like graft or corruption.
 
“There shall be a legal presumption of favor of access to information, public records and official records. No request for info shall be denied unless it clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions,” the order read.
 
While officials were directed to provide public access to information, they were also instructed to observe and protect the right to privacy of individuals.
 
Government offices in the executive branch were directed to ensure that personal information would only be released if relevant to the request and if the EO or by laws and regulations allow such disclosure.
 
They were also tasked to make "reasonable security arrangements" against leaks or premature disclosure of personal information that might subject one to harassment, vilification and other wrongful acts. 

15-day response period

Those who wish to request for information shall write a letter to the government agency concerned. The letter should state the name and contact information of the one making the request.  
 
Requesting parties should also present a valid proof of identification or authorization, describe the information being sought and state the reason for doing so.
 
Government officials receiving the request are required to provide free "reasonable assistance" to all requesting parties.
 
Government offices shall respond to all requests that complied with all requirements within 15 working days starting from the date the request was received. The response refers to the decision of the office to grant or deny access to the information requested.
 
However, the period to respond may be extended whenever the information requested "requires extensive search" of the government's office records or the examination of voluminous records. The response period may also be prolonged when unexpected or "fortuitous events" happen. Government offices will be required to notify the requesting party of the extension.
 
"In no case shall the extension go beyond 20 working days unless exceptional circumstances warrant a longer period," the order read.
 
Failure to notify the requesting party of the action taken on the request within the 15-day period will be viewed as a denial of the request.

Not for free

The requested documents will not come for free. While government offices will not charge any fee for accepting requests for access to information, they may ask the requesting party to shoulder the costs incurred in reproducing the information sought.
 
“In no case shall the applicable fees be so onerous as to defeat the purpose of this order,” the order read.
 
Denial of any request for information may be appealed to the person or office next higher in authority. The one who made the request should submit a written appeal within 15 calendar days from the notice of denial or from the lapse of the response period.
 
The next higher authority shall decide on the appeal within 30 working days from the filing of the written appeal. Once all administrative appeal remedies have been exhausted, the requesting party may file a case before the court.
 
All agencies were asked to come up with their respective procedures on freedom of information within 120 days from the effectivity of the EO. The government will also prepare a People's FOI Manual that will include the location and contact details of offices where the public can submit requests and the schedule of applicable fees.
 
The 1987 Constitution states that Filipinos have the right to information on matters of public concern. It also called for a policy of full public disclosure of all state transactions involving public interest. The absence of an FOI law, however, has prevented the public from fully enjoying these constitutional guarantees.
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