FOI law will tighten, not ease, restrictions

RESTRICTIVE: Supporters of the Freedom of Information bill better make up their minds if they want the measure passed quickly in the last two minutes of the 15th Congress although it is still loaded with restrictive insertions of Malacañang.

It might even be better for media to continue working under present benign conditions than under an FOI law that gives legal basis for the denial of access to government information under arbitrary cover of executive privilege or national security.

At present, denial of access is justified by official discretion and jurisprudence that are open to judicial challenge. But with the proposed FOI Law, such denial will have a law explicitly ORDERING it.

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DEADLY VIRUS: The bill is loaded. As suggested in my Postscript of Dec. 6, 2012, people demanding the approval of the FOI bill should read it first.

They better do it fast, because there are only seven session days left before the Congress adjourns to give its members running in the May elections more time to campaign.

The Malacañang exceptions on executive privilege and national security that have been inserted are the deadly virus that will delay deliberations and possibly kill the measure.

Smelling the foul odor of deception, Bayan Muna Reps. Teodoro Casiño and Neri Colmenares, as well as Kabataan Rep. Raymond Palatino, said Monday they were withdrawing as co-sponsors of the watered-down FOI bill.

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TIGHTEN THE LID: Deputy presidential spokesperson Abigail Valte said that the Palace exceptions were needed to ensure that the government runs smoothly in the midst of requests for information and transparency.

Malacañang seems to regard requests for information on sensitive matters as hampering the smooth functioning of government?

“Executive privilege is also a recognized exception under jurisprudence,” Valte said. “While it is true that wala hong batas na nagsasabi explicitly, kasi wala pa nga hong batas tayo ngayon tungkol doon, recognized exception po ‘yan sa jurisprudence not only in the country but also in other countries that have FOI in their jurisdictions.”

So now Malacañang wants a law passed specifically to tighten the lid on government information?

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PEOPLE’S RIGHT: Section 2 of the bill says: “The State recognizes the right of the people to information on matters of public concern, and adopts and implements a policy of full public disclosure of all its transactions involving public interest, subject to the procedures and limitations provided by this Act.”

It adds that when the law’s applicability is in question, there shall be a presumption in favor of access. Exceptions are to be strictly construed.

Laudable intentions. But after recognizing the people’s right to public information, the bill drops the bombshell, courtesy of Malacañang.

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EXCEPTIONS: Under the exceptions listed in Section 6, access may be denied if the information:

• Is authorized to be kept secret under guidelines set by Executive Order, if it directly relates to national security or defense and its revelation may cause grave damage to national security or defense; or pertains to foreign affairs when its revelation will weaken the negotiating position of the government or seriously jeopardize bilateral relations.

• Consists of records of advice given and opinions expressed during decision-making or policy formulation, invoked by the President to be privileged by reason of the sensitivity of the subject or of the impairment of his deliberation resulting from any disclosure. Once policy is formulated and decisions are made, data may be disclosed unless made in executive session.

• Pertains to internal or external defense, law enforcement, and border control, when disclosure would compromise a military or law enforcement operation, or with the detection or suppression of criminal activity, the implementation of immigration controls and border security, or deprive a person of his right to a fair trial, or lead to the identifying of a confidential source of information, or disclose techniques and procedures for law enforcement or prosecution, or risk circumvention of the law or endanger the life or safety of any individual.

• Consists of drafts of orders, resolutions, decisions, memoranda or audit reports by any executive, administrative, regulatory, constitutional, judicial or quasi-judicial body.

• Is obtained by any committee of either chamber of Congress in executive session.

• Is personal and whose disclosure constitutes invasion of privacy, unless it is part of a public record, or the person is or was an official of a government agency and the information relates to his public functions.

• Pertains to trade secrets and commercial or financial information or obtained in confidence or covered by privileged communication, and/or filed with a government agency, if its revelation would prejudice his interests in trade, industrial, financial or commercial competition.

• Is classified as privileged communications in legal proceedings by law or by the Rules of Court.

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EXECUTIVE SESSION: But what is an “executive session”? The bill does not explain it clearly enough. Can any government panel or committee clamp secrecy on its proceedings by the expedience of closing the door for an alleged executive session?

Who verifies if indeed the information sought was discussed in executive session? Or even if taken up behind closed doors, if the same matter was discussed elsewhere, can access still be denied?

It may be better to have the SUBJECT MATTER and NOT THE VENUE determine if public information should be hidden under the “executive session” cover.

The bill vests on the “head… of the government agency in control of the information, or any responsible… officer(s) designated by him” the responsibility of determining if the grounds for exceptions apply.

Accessibility hangs on the say-so of that government official?

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RESEARCH: Past POSTSCRIPTs can be accessed at manilamail.com. Follow us via Twitter.com/@FDPascual. Send feedback to [email protected]