The state of Freedom of Information in the Philippines

Freedom of Information or the right of a citizen to access his government’s information — every record and document produced by his government — is probably one of the most contentious piece of legislation seeking approval in the Philippine Congress. Rivaled only by the Anti- Dynasty Bill. Several administrations and years have passed and despite promises given to FOI advocates; the FOI Bill has not been passed.  In June 2016 and during his first month in office President Duterte  – fulfilling a campaign promise – signed an executive order instructing government agents to give citizens access to government documents and upon request provide that information. It was an FOI Executive Order. Predictably, This has been touted as one of the achievements of the Duterte Government. Signing an order is one thing and implementing it another.

I.  WHAT IS THE STATE OF FOI NOW THAT THE EO HAS BEEN SIGNED?

FIRST, The FOI only covers one of three branches of government – the executive side. The FOI Bill needs to be passed so that the two remaining branches of government will comply. It should be noted that the opening up of government documents: government information is a major step towards the opening of government information.

SECOND, The government has been busy preparing FOI manuals for each department and developing a list exclusions. These FOI manuals are procedures and regulations instructing the different departments how to process and cost information request. These manuals also gives the redress system – which officer and office to bring the request and if needed to escalate to if the request is not processed. The manual should also contain and state how long should it take to process a request.

THIRD, The government has also been working with The Right to Know. Right Now! Coalition, a network of organizations that have been strongly advocating for the passage of a Freedom of Information Act The Right to Know Right Now! Coalition has been conducting critical talks with government, lobbying for the FOI bill and conducting an education campaign to show the importance of FOI to citizens. The Departments that are at present working with R2KN include but not limited to the following: Department of Education, Department of Public Works and Highways, and the Department of Environment and Natural Resources .

II, FOI CHALLENGES THAT NEEDS TO BE OVERCOME

FIRST, FOI is about information and government is a universe of information. In order for this information to be of used it has to be organized and classified in a consistent and uniform way.

Otherwise it would be difficult to impossible to process any request.

In recent months the PCIJ has been making FOI requests to a select government offices and encountered delays and inability to process requests. This could just reflect the present state of disarray in government information. (For further details of PCIJ’s test of the FOI please see the articles preceding this analysis under the Appendix).

SECOND, There seems to be no organized and uniform collection of government information. Each government body has adopted or developed their own classification system. Ideally, the lead agency here could be the National Library and/or the National Archive – institutions educated and equipped to manage information. Unfortunately, This is not the case, but the FOI though provides the opportunity for information managers and gatekeepers from the National Library to step up and organize this universe of information. Otherwise, the FOI would be forever plagued by information mismanagement. There is no software solution to this problem, instead the information needs to uniformly and consistently organized through out the government.

THIRD, FOI needs managers and personnel. The managing of government information is a full time job. The team managing FOI request and processing should know where the information is and how to access it. You need to get information before you can give information. In order to do this there should be an information management system will organize an ever increasing universe of institutional information. Safeguarding and digitizing information will only be part of it. The other part will helping citizens get these information in librarian parlance a reference service. This will call for a team of civil servants more equipped with handling information – librarians and information specialist and not public relations people although when processing request/reference a pleasing and patience demeanor is key. Such a team would be needed in all government offices.

FOURTH, FOI needs to be institutionalized. Although highly unlikely, presidential decree could be overturned so there is a need to secure it within the government and this could only be done by passing the FOI bill. Passage of the bill will open the information in the other branches of government (the Judiciary and the Legislative)  and down to the local government. Hopefully, the bill will also include the development of a team or even an institution that will manage this universe of information.

TO SUM IT ALL UP,  On the positive the FOI is now an executive order.However, It is still a work in progress that will require organization and classification of information. Sensitive issues like on the exclusions should be resolved. There is also a dire need to develop managers who will handle the information and manage an FOI requests to each department, bureau and government bodies. The institutionalization of FOI through the passage of the law is still important not only to provide stability in managing FOI and also the expansion of FOI to information housed in the Legislative, Judiciary and Local Government. .

APPENDIX – PCIJ Articles about FOI in the first months of the Duterte Presidency

1. FOI request on drug war data: NP, DILG, DoJ won’t open up. By The Philippine Center for Investigative Journalism . Link: http://pcij.org/stories/foi-request-on-drug-war-data-pnp-dilg-doj-wont-open-up/

LAST JULY 23, President Rodrigo R. Duterte enacted Executive Order No. 2, “Operationalizing 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 therefor.”

Two weeks later, PCIJ and the Free Legal Assistance Group (FLAG), the largest and oldest human rights lawyers organization in the Philippines, filed access-to-information requests separately with the Philippine National Police (PNP), Department of the Interior and Local Government (DILG), and Department of Justice (DOJ), citing as basis Duterte’s E.O. No. 2.

 

The requests for data regarding the government’s war against drugs were submitted on Aug. 8 and 9; the recipient state agencies were supposed to act on them within 15 working days, according to law.

 

But 40 working days since the request was filed, both PCIJ and FLAG have yet to get definite and satisfactory answers from the agencies. Save from a paltry PowerPoint presentation from the PNP, neither has also received a reply from the follow-up letters they sent on Aug. 30, which marked the passing of the 15-working-day period when government offices must respond to requests.

In less than two months, PCIJ alone has sent six letters and made at least 26 calls and six visits to the DOJ, DILG, and PNP.

The PCIJ-FLAG request letters sought the following documents and information separately from the PNP, DILG, and DOJ:

•”The number of persons killed by identified persons in relation to the ‘war on drugs’ since June 30, 2016 up to the present, including their names/identities (both as to perpetrator and victim, and with a specification of public office if applicable), when and where they were killed, the surrounding circumstances, the law enforcement or public order elements and units involved, and whether or not any administrative cases have been filed or any preventive suspensions imposed, particularly in relation to local government officials suspected of perpetrating the killings, including copies of or access to any relevant documents in relation to this item;

• The number of persons killed by so-called vigilantes or still unidentified persons in relation to the ‘war on drugs’ since June 30, 2016 up to the present, including their names/identities, when and where they were killed, the surrounding circumstances, and whether or not any criminal cases have been filed against the alleged perpetrators of the killings, including copies of or access to any relevant documents in relation to this item;

•Any written guidelines, protocols or instructions from the President on how the PNP is to carry out its role in relation to the conduct of the ‘war on drugs’, including but not limited to identification, surveillance, apprehension, or processing for prosecution of alleged offenders, with copies of or access to any relevant documents in relation to this item;

•Any written guidelines, protocols or instructions from your office to the Philippine National Police on how to carry out the ‘war on drugs’ including, but not limited to, any revisions, amendments, or clarifications (written or otherwise) to the existing Rules of Engagement of the Philippine National Police (PNP);

•A copy of the existing Rules of Engagement of the Philippine National Police;

•The number of persons who have surrendered to the PNP in relation to the ‘war on drugs’ since June 30, 2016 up to the present, including their names/identities, when, where and to whom they surrendered, the surrounding circumstances, and subsequent action/s taken;

•Any written protocol, guidelines, and/or rules and regulations, if any, on what to do with persons who surrender and how to process them, together with any forms or documents that they are asked or required to sign;

•Any list, enumeration, or document that is denominated, characterized, labeled, identified, referred to, or used as an ‘Order of Battle’ involving known drug offenders and any protocols, instructions, or guidelines on the manner by which this list, enumeration or document is verified, updated and/or authenticated.

•The written guidelines, rules (including rules of engagement), regulations, and/or instructions for the implementation of the following:

a. Oplan DOUBLE BARREL

b. Oplan RODY (Rid the Streets of Drunkards and Youths); and

c. Oplan TOKHANG (Toktok-Hangyo).”

Below is an account of the calls and visits PCIJ made to check on the status of its request for information.

Aug. 18, 2016

DOJ

Vilma Velasco, receiving staff at the Office of the Secretary, says the request is still with the secretary. No update is available today.

DILG

The request was forwarded to the office of Undersecretary Catalino Cuy, who has yet to give instructions about it. Administrative assistant Carlo Almine advises PCIJ to follow up the next week.

 

PNP

The request with PNP is still pending. But the letter has been forwarded to three offices so far: first to the Chief of Directorial Services, then to the Directorate for Operations, and then the Law Enforcement Division.

Aug. 23, 2016

DOJ

Velasco says there is still no feedback on the request. She says the office is taking time to act on requests because undersecretaries have yet to be appointed.

DILG

The request is still pending action, according to Almine. He says he will tell Atty. Eudisan Gultiano, a staffer of Undersecretary Cuy, that PCIJ is following up the matter.

Almine also says the Secretary’s office forwarded the request dated Aug. 9 to Cuy’s office on Aug. 12. Cuy’s office, he says, has been busy with meetings and recently with the Senate hearing on drug killings. This is the reason why the office has no feedback yet on the request.

On the same day, Aug. 23, PCIJ receives a letter from DILG Secretary Ismael Sueno, indicating that DILG is collating information from the PNP. DILG says it will forward the information to PCIJ as soon as it gets it.

PCIJ calls Almine to verify the letter. Almine says PCIJ will now have to do its follow-up with the Secretary’s office.

PNP

PCIJ makes six phone calls to PNP’s Law Enforcement Division, but no one answers. PCIJ tries to call another division of the PNP – Directorate for Investigation and Detective Management – to check if it has any idea as to the absence of people in the Law Enforcement Division. The one who answers the call to PNP DIDM says they are probably focused on the Senate hearing involving PNP Chief Ronald ‘Bato’ de la Rosa at the Committee on Justice and Human Rights.

Aug. 25, 2016

DOJ

The request has been forwarded to DOJ’s Planning and Management Service for action, as of Aug. 24. Person in charge is OIC Director Ryan Thomas.

DILG

DILG is still waiting feedback from PNP.

PNP

A Law Enforcement Division staff member who identifies herself only as  ‘Jacqueline’ says that PC Inspector Rico Ramos, the one in charge of processing the request, is out of town. Jacqueline gives PCIJ Ramos’s mobile number.

PCIJ calls Ramos, who says the office’s reply had been prepared before he left for PNP MIMAROPA to help out in the monitoring of “Oplan Double Barrel” accomplishments.

PCIJ calls Jacqueline and shares Ramos’s response. Jacqueline says the reply is awaiting signature of the executive director of PNP’s Directorate for Operations.

Aug. 26, 2016

DOJ

There is still no clear update from the Department of Justice. The Office of the Secretary had just forwarded PCIJ’s request to the Planning and Management Service on Aug. 24, which then forwarded it to the Administrative Order 35 Task Force on Aug. 25.

AO35 Task Force staffer Eli Tornea says that as of today, Aug. 26, the office has not yet taken action on the request because fiscal Hazel Valdez, the task force head, has not seen it. Valdez was out yesterday when the request was forwarded to her office; she is also in a meeting outside of the office today. Tornea says she will email Valdez today about PCIJ’s query.

DILG

DILG is still waiting for documents from the PNP before it could respond to PCIJ’s request.

On Aug. 23, DILG responded to PCIJ’s request in writing, saying it is collating information from the PNP and that it will forward it to PCIJ as soon as DILG gets the data. Lisette Raquiza, a staff of the Appellate Division of the DILG’s Legal and Legislative Liaison Service, confirms that DILG’s Aug. 23 letter came from the Appellate Division. She advises PCIJ to call next week. There are no new updates, as of today.

Sept. 1, 2016

PCIJ sends follow-up letters separately to DOJ, DILG, and PNP. Fifteen working days have passed since the request was filed.

DOJ

AO35 Secretariat had sent the request back to OIC Director Ryan Thomas who forwarded our request to AO35. According to Fiscal Hazel Valdez, the matter does fall under AO35’s mandate, noting the definition of “extralegal killings” that AO35 covers.

Director Ryan Thomas of the Planning and Management Service says he sent a memo yesterday to Justice Secretary Vitaliano Aguirre II’s office, seeking policy guidance on the request. He says he asked for guidance because of issues that may be encountered in processing our request.

Apart from the time needed to collect information, Thomas says there might be inconsistencies with the data that DOJ, PNP, and DILG would be able to produce. He says this is because DOJ prosecution does not particularly classify cases as “drug-related.” He says if a case involves murder, then it will be referred to as murder.

Thomas says that if DOJ proceeds with granting PCIJ’s request, it will ask its prosecutors to collate data and coordinate with PNP. He says they will need to get a list of names from PNP so they can crosscheck which of their cases are drug-related.

DILG

Raquiza says they are still waiting for documents from the PNP. They contacted PNP last week.

PNP

PSI Domingo Morillo of the PNP’s Double Barrel Secretariat requests PCIJ to resend the original letter via fax so that they can have a copy of the request, instead of just an action order.

Sept. 6, 2016

DOJ

Jolas Brutas, head executive secretary at DOJ, is out of the office. He is in charge of the request now, according to Ryan Thomas.

DILG

As in previous follow-ups, Raquiza responds by saying they are still waiting feedback from PNP.

PNP

PCIJ calls Morillo for a follow-up. Morillo says they already sent the response to FLAG.

FLAG received a two-page PowerPoint presentation that day, which contained regional aggregate statistics of houses visited, persons arrested, personally surrendered, and killed during drug operations under “Project: Double Barrel.”

PCIJ asks Morillo to email the response PNP sent to FLAG to one of PCIJ’s staffers.

Sept. 8, 2016

DILG

Gina Wenceslao, Officer in Charge of the Appellate Division of DILG’s Legal Legislative and Liaison Service, says they are still waiting for information from the PNP’s legal office.

DOJ

The request is still waiting feedback from Jolas Brutas, head executive secretary at DOJ.

PNP

PCIJ calls PNP to follow up on the resending of the response it sent to FLAG. The Double Barrel Secretariat sends it via email to one of PCIJ’s staffers. It is the two-page PowerPoint presentation, which contains regional statistics from Project: Double Barrel. Sparse information is in it, barely covering what should have been the contents of the list of documents that PCIJ and FLAG indicated in their request more than a month ago.

Sept. 9, 2016

PNP

The Double Barrel Secretariat sends a “corrected copy” of the PowerPoint presentation. This time, it is a four-page file that contains regional aggregate “Project: Double Barrel” statistics, a pie chart on drug personalities, and summary data on kills, arrests, and “surrenderees.”

The officials contacted in the three agencies have repeatedly assured that they will keep PCIJ informed about the status of the requests. Nearly a month hence, they have not contacted PCIJ or reported substantive action.

Prying open the records of the PNP and other executive agencies on the drug war has become a clearly vexatious experience, even for the Senate of the Philippines.

At a hearing on the drug war by the Senate Committee on Justice and Human Rights last Sept. 13, several senators had asked PNP chief Director General Ronald ‘Bato’ de la Rosa about their standing request to get copies of the police spot reports on the killing of suspected drug users and p[ushers.

De la Rosa had earlier submitted copies of an initial set of these reports to the Senate in late August but soon after recalled the documents. His reason: President Rodrigo R. Duterte had asked the PNP to retrieve the documents so he could first read and review them. It is not clear as yet if de la Rosa has complied with the Senate’s request for copies of the spot reports. — PCIJ, October 2016

2. DOJ received no FOI request? Check your facts, Mr Aguirre!. By The Philippine Center for Investigative Journalism.Link: http://pcij.org/stories/doj-received-no-foi-request-check-your-facts-mr-aguirre/