Duterte signs FOI order

Highlights

• Covered offices: all national government executive agencies, GOCCs, state universities and colleges; LGUs ‘encouraged to observe and be guided’ accordingly

• Covered information: official or public records, documents, transcripts, papers, photos, film, sound and video recording, electronic data on official acts, transactions, decisions, research data

• Exemptions: an inventory is being drawn up, based on the Constitution and laws, most likely to include information involving aspects of national security, public safety, diplomacy, individual privacy, intellectual property and business proprietary rights, privileged communication (lawyer-client, doctor-patient, for example)

• No FOI request can be denied to cover up a crime, graft and corruption; formal request needed; reason for request cannot be contrary to law, rules or regulations

• Banned: leaks of personal information that may unduly expose a person to vilification, harassment or other wrongful acts

• Filing a request for information is free, but fees may be charged for copies of requested materials

• Requests must be granted or denied within 15 working days; appeals must be filed within 15 calendar days and settled within 30 working days; an appeal can be elevated to judicial courts

MANILA, Philippines – Making good on his promise of transparency, President Duterte signed the other night a landmark order on freedom of information or FOI that would require all government offices under the executive branch to disclose details of their transactions.

The order was signed after several congresses failed to pass an FOI law, which advocates say is a requirement for good governance.

A list of information exempted from FOI is being drawn up, in accordance with laws and the Constitution.

Disclosure of the statement of assets, liabilities and net worth (SALN) merits special mention in the yet unnumbered executive order.

Under Section 5, all public officials are reminded of their obligation to file and make available for scrutiny their SALNs in accordance with existing laws, rules and regulations and the spirit and letter of the order.

Except for the judiciary, the SALNs of executive officials and legislators are made available after filing every year. Aside from lifestyle checks, SALNs, among other documents, are used to guard against graft and corruption among officials in government.

Under Section 6, “there shall be a legal presumption in favor of access to information, public records and official records. No request for information shall be denied unless it clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions.”

The list of exceptions is not yet final but it so far includes national security matters and personal information of executive officials to protect privacy.

The Department of Justice and the Office of the Solicitor General were directed to prepare an inventory of exceptions and submit this to the Office of the President within 30 days from effectivity of the order titled “Operationalizing in the Executive Branch the People’s Constitutional Right to Information and the State Policies of Full Public Disclosure and Transparency in the Public Service.”

The EO will cover all government offices under the executive branch including departments, bureaus 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.

Presidential Communications Office Secretary Martin Andanar said it would be up to the legislature to decide whether to enact an FOI law that would cover all government branches.

“The President believes in the independence of each… branch of government,” Andanar said when asked if Duterte would ask Congress to pass an FOI law. “We do not have timeframe for Congress.”

Local government units are encouraged to observe and be guided by the order.

The order defined “information” as “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.

Officials who refuse to release information that do not fall within the exceptions may face administrative charges, he added.

Based on the EO, government officials receiving the request are required to provide free “reasonable assistance” to all requesting parties and shall respond to all requests that complied with all requirements within 15 working days.

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 depending on various circumstances.

“In no case shall the extension go beyond 20 working days unless exceptional circumstances warrant a longer period,” the order read, adding that failure to notify the requesting party of the action taken within the 15-day period would be viewed as a denial of the request.

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.

While officials were directed to provide public access to information, they were also instructed to observe and protect the right of privacy of individuals.

Government offices in the executive branch were also ordered to ensure that personal information would only be released if they were relevant to the request and if such disclosure was allowed by the EO or by laws and regulations.

They were also tasked to make “reasonable security arrangements” against leaks or premature disclosure of personal information that might subject an executive official to harassment, vilification and other wrongful acts.

People’s government

The EO signed by Duterte on Saturday night in his hometown Davao City was a milestone, according to Andanar, and was expected to strengthen public participation in governance aside from promoting greater transparency in government.

Andanar said the speed by which the EO was issued was also “record-breaking” since the Duterte administration assumed office just three weeks ago.

Andanar said there was no conflict between the EO on FOI and Duterte’s continuous refusal to grant media interviews.

“The President has over 30 Cabinet members working (under the) executive department and he has alter egos to answer questions the media has for the President,” Andanar said.

“The most important fact here is the freedom of information is not only limited to the media but is inclusive to the rest of hundred million Filipinos who would want to extract and know vital information in running the government,” Andanar added.

Andanar likewise claimed the timing of the signing of the EO had nothing to do with Duterte’s first State of the Nation Address today because from day one, “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 in a press conference in Davao City yesterday.

“It just so happened that the executive order was finalized Saturday night,” he added.

The order was promised 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 had no legal basis.

Andanar said there had been moves to push for an FOI law in Congress in the last 29 years but they were unsuccessful. Laws 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.

Andanar said copies of the “historic” EO with a number and the presidential seal would be available today. 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.

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. – With Edith Regalado, Giovanni Nilles