Right to access information: Not all the time!

Privacy is something we all value. It is the right to be left alone, and our inherent freedom from interference or intrusion. It is enshrined in the 1987 Constitution that privacy is one of the vital rights sustained by the State as part of an individual’s rights. Article III of the Constitution particularly provides that the privacy of communication and correspondence shall be inviolable except upon lawful order of the court or when public safety or order requires otherwise as prescribed by law. Equally, we treat all personal information privately. When something is private to a person, it usually means that something is inherently sensitive to them. As such, information privacy is the right we have to control how our personal information is collected and used.

Access to personal information is a fundamental human right, subject only to exceptions in keeping with a democratic society and proportionate to the interest that justifies them.

Last 2016, Executive Order (EO) 021 was enacted in consonance with Section 28, Article II and Section 7 Article III of the 1987 Constitution to operationalize in the Executive Branch the People’s Constitutional Right to Information and the State policies to full public disclosure and transparency in the public service and providing guidelines therefore. The EO states that every Filipino shall have access to information, official records, public 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. However, such access to information shall be denied when the information falls under any of the exceptions enshrined in the Constitution, existing law or jurisprudence.

By the mandate of the said EO, the Department of Justice (DOJ) and the Office of the Solicitor General (OSG) updated the Inventory of Exceptions. With this BIR-issued Revenue Memorandum Circular 105-2021 last Oct. 4, 2021 to circularize Memorandum Circular 89 dated Sept. 13, 2021 issued by the Office of the President, entitled “Updating the Inventory of Exceptions to the Right to Access of Information Under Executive Order (EO) 02, Series of 2016.” As to date, the following have been added to the said Inventory of Exceptions:

1. Information covered by Executive privilege, which covers Presidential conversations, correspondence, and discussions in closed door Cabinet meetings and Matters covered by deliberative process privilege.

2. Privileged information relating to national security, defense or international relations, such as information, record, or document that must be kept secret in the interest of national defense or security; Diplomatic negotiations and other information required to be kept secret in the conduct of foreign affairs; and patent applications.

3. Information concerning law enforcement and protection of public and personal safety such as investigation records compiled for law enforcement purposes or information which if written would: (a) interfere with enforcement proceedings; (b) deprive a person of a right to a fair trial or an impartial adjudication; (c) disclose the identity of a confidential source; or (d) unjustifiably disclose investigative techniques and procedures.

This would also include: (a) Informer’s privilege or the privilege of the government not to disclose the identity of a person or persons who furnish information of violations of law; (b) When disclosure of information would put the life and safety of an individual in imminent danger; (c) Any information given by informants leading to the recovery of carnapped vehicles and apprehension of the persons charged with carnapping; and (d) All proceedings involving application for admission into the Witness Protection Program.

4. Information deemed confidential for the protection of the privacy of persons and certain individuals such as minors, victims of crimes, or the accused. These include Information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy, personal information, or records, including sensitive personal information.

Sensitive personal information as defined under the Data Privacy Act of 2012 refers to personal information: (1) About an individual’s race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations; (2) About an individual’s health, education, genetic or sexual life of a person, or to any proceeding for any offense committed or alleged to have been committed by such person; (3) Issued by government agencies peculiar to an individual; and (4) Specifically established by an executive order or an act of Congress to be kept classified. However, personal information may be disclosed to the extent that the requested information is shown to be a matter of public concern or interest, shall not meddle with or disturb the private life or family relations of the individual and is not prohibited by any law or regulation.

5. Information deemed confidential also include source of any news report or information appearing in newspapers, magazines or periodicals of general circulation obtained in confidence; and records of proceedings and processes deemed confidential by law for the privacy and/or protection of certain individuals.

Information, documents or records known by reason of official capacity and are deemed as confidential, including those submitted or disclosed by entities to government agencies, tribunals, boards, or officers, in relation to the performance of their functions, or to inquiries or investigation conducted by them in the exercise of their administrative, regulatory or quasi-judicial powers.

6. Information of which a premature disclosure would: (a) In the case of those who regulate currencies, securities, commodities, or financial institutions, be likely to lead to significant financial speculation or significantly endanger

the stability of any financial institution; or (b) Be likely or significantly frustrate implementation of a proposed official action, except where it is required by law to make such disclosure.

7. Records of proceedings or information from proceedings which, pursuant to law or relevant rules and regulations, are treated as confidential or privileged.

8. Matters considered confidential under banking and finance laws. and their amendatory laws.

9. Other exceptions to the right to information under laws, jurisprudence, rules and regulations, such as:   Those deemed confidential pursuant to treaties, executive agreements, other international agreements, or international proceedings.

Testimony from a government official, unless pursuant to a court or legal order.

When the purpose for the request of Statement of Assets, Liabilities and Net Worth is any of the following: (1) Any purpose contrary to morals or public policy; or (2) Any commercial purpose other than by news and communications media for dissemination to the general public.

Lists, abstracts, summaries of information requested when such are not part of the duties of the government office requested.

Those information and proceedings deemed confidential under rules and regulations issued by relevant government agencies or as decided by the courts.

Requested information pertains to comments and disclosures on pending cases in judicial proceedings; and

Attorney-client privilege existing between government lawyers and their client.

Freedom of Information is a right preserved in our fundamental law. It is the right of the people to have information on matters of public concern. However, when such right would impede a greater good, the said right must give way to achieve a better result.

Shirley Cada is a supervisor from the tax group of KPMG R.G. Manabat & Co. (RGM&Co.), the Philippine member firm of KPMG International.

This article is for general information purposes only and should not be considered as professional advice to a specific issue or entity. The views and opinions expressed herein are those of the author and do not necessarily represent KPMG International or KPMG RGM&Co.

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