Access to information under PNoy : Some open spaces, many closed corners

By The Philippine Center for Investigative Journalism
First of Two Parts (second part is here)

DRIFT and confusion. Some pockets of transparency but most everywhere, a predilection for opaqueness and more barriers to access in place.

This is the access to information regime that lingers in the Philippines nearly a year after Benigno Simeon C. Aquino III came to power on a “Social Contract with the Filipino People,” which he said would be defined by transparency, accountability, and good governance.

But a seven-month PCIJ audit of how 27 national agencies deal with access to information requests shows spotty proof of Aquino’s recipe for good governance in the processes and practices of these agencies. While a few stand out as exemplars of transparency, the majority remain stuck in the old ways of opaque government, with some even sliding back into darker corners.

To the last set belong the Office of the President and the nation’s top integrity office, the Office of the Ombudsman. The two stick out in the PCIJ audit as the most barren fields for harvesting information and documents, particularly on the wealth of senior public officials.

The 27 agencies covered by the audit include Malacañang, the Ombudsman, the three other constitutional commissions, the Office of the Vice President, the Senate, the House of Representatives, the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), and executive agencies collecting revenues and managing big budgets and big contracts.

To audit the processes and practices the agencies employ in dealing with pleas for information, the PCIJ filed 35 requests for copies of the Statement of Assets, Liabilities and Net Worth (SALN), personal data sheets (PDS) or curriculum vitae, and for some agencies, specific documents and data sets.

A total of 45 request letters were faxed or delivered to the agencies, and in all cases assisted by a total of 149 follow-up calls to the agencies made by the PCIJ staff and interns. Throughout the audit period from September 2010 to April 2011, the PCIJ also documented how and who from the agencies responded to the requests, how many days or weeks it took them to grant the requests, and in what manner or form they did.

The audit yielded results that surprised and disappointed at the same time, such as the integrity agencies turning out to be more secretive about their SALNs, as well as some agencies more ready to share the SALNs of other officials they have in custody but not the SALNs of their own agency bosses. Too, only 20 requests were granted, making for a poor 57-percent approval rate. Several of these approvals also took place well beyond the 10 working days deadline in law for officials and agencies to act on requests for SALNs, and the 15 working days deadline in law for them to act on requests for other documents.

People’s right to know

Republic Act No. 6713 or the “Code of Conduct and Ethical Standards for Public Officials and Employees” provides a general rule on access to information. Section 5 of the Code states: “All public documents must be made accessible to, and readily made for inspection by, the public within reasonable working hours.”

Why some officials promptly open doors to requests for SALNs and other documents while many others keep their doors shut seem rooted in one factor: While President Aquino’s policy of transparency in the conduct of government affairs has largely been verbalized, it has not been operationalized. The result is an incoherent picture of access to information practices across the bureaucracy.

Documents uploaded online by the departments of Budget and Management and of the Interior and Local Government are thus far the few practical testimonies to transparency of the Aquino government.

Yet a second factor could well be the indecisiveness that Aquino and his officials have shown toward the proposed Freedom of Information (FOI) Act, which could set the standards and procedures to enable the citizen’s right to know that has been guaranteed as early as 24 years ago by the 1987 Constitution.

The charter has precisely mandated the Congress to enact the FOI bill but it has taken advocates of the law 14 years to file and refile, then file and refile again, FOI bills in the last four successive Congresses.

In the past several months, meanwhile, the secretaries of Aquino’s Communications Group have voiced the supposed “concerns” of some Cabinet members about the FOI bill that the president has not included in the list of priority legislation he submitted to Congress.

PNoy, Merci alike

Thus, while it was most disappointing, it was not much of a surprise that the PCIJ audit showed the Office of the President under Aquino and the Office of the Ombudsman under just-resigned Merceditas N. Gutierrez as having become more alike in terms of their access to information practices in recent months.

In both Malacañang and the Ombudsman, new and additional administrative barriers to access have lately been imposed. Malacañang and the Office of the Vice President also did not disclose the SALN of President Aquino and Vice President Jejomar Binay, respectively; it merely flipped and tossed the PCIJ’s request to the Office of the Ombudsman.

At the Ombudsman under Gutierrez, though, SALN requestors had been sure to go through long, circuitous processes before a request is approved. For instance, since last Feb. 2, the Ombudsman has not acted on the PCIJ’s requests for copies of the SALNs of its senior officials, including Gutierrez and her deputy ombudsmen.

The Office would also simply not give copies of Gutierrez’s SALNs, until Gutierrez herself had approved it; no copies of the resigned Ombudsman’s SALNs could be found even in the Office of the President.

Yet when it came to requests for copies of the SALNs of governors and mayors, the Ombudsman’s regional offices (Luzon, Visayas, and Mindanao) acted quickly and nearly completely. It would therefore seem like the Ombudsman is more willing to release such information so long as these do not involve its own senior officials.

Palace imposes barriers

To ferret out the SALNs of Ombudsman Gutierrez and her predecessors, PCIJ last February tried writing to Executive Secretary Paquito N. Ochoa Jr. requesting for copies of the SALN and personal data sheet (PDS) or curriculum vitae (CV) of the previous and current Ombudsmen.

Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act requires every public officer to file his/her SALN with the office of the department head. The head of department of an independent office in turn must file with the Office of the President.

More than a month later, PCIJ received a letter from Senior Deputy Executive Secretary Jose Amor M. Amorado saying that the data being requested were available for reproduction at the Malacañang Records Office.

But “to comply with laws and administrative issuances related to the disclosure of SALNs,” Amorado said the requestor would need to present a valid identification card, a certification of her affiliation with PCIJ, PCIJ’s registration documents (e.g., Securities and Exchange Commission [SEC] Registration, Bureau of Internal Revenue [BIR] Registration, and Mayor’s Permit), and an executive summary sufficiently describing the use of the SALNs requested.

Ironically, Amorado sent the response even if the Records Office does not have on file copies of the documents requested, the PCIJ found out.

This recent encounter is very much unlike PCIJ’s experience with Malacañang six months ago. As a regular update to PCIJ’s library files of the SALN and PDS of government officials and employees, PCIJ then made a request for the SALN filed upon assumption of the new administration’s Cabinet members.

On Sept. 8, 2010, two days after the request was sent, Assistant Executive Secretary Jed M. Eva called to inform PCIJ that its request is being processed and that the SALNs requested have yet to be collected. Although incomplete, PCIJ managed to get 11 of the 32 requested SALNs without any additional documentary requirement.

Apparently, however, the Office of the President has since adopted new guidelines on the release of SALNs and now imposes a slew of documentary requirements that require several documents from the requestor before information would be made available.

And so instead of taking the lead in pushing for transparency in government, the Office of the President seems to be following the footsteps of other state agencies that would rather keep documents close to their chests.

Closed commissions

Indeed, even the so-called “integrity” institutions and three other constitutional bodies – the Commission Audit (COA), the Commission on Elections (Comelec), and the Civil Service Commission (CSC) – are among the most secretive and the slowest to respond to requests for copies of the SALNs of their top officials.

Elections Commissioner Rene Sarmiento was the only one who gave the PCIJ a copy of his SALN. The requests filed with his fellow commissioners still await action.

But at least Comelec did not go the way of COA and CSC, both of which flatly denied the PCIJ’s requests. Weeks later, in response to a clarificatory letter from the PCIJ, the CSC said its Resolution No. 1100356 that was supposedly published in a newspaper last Apr. 13 prescribes guidelines for the release of the SALNs filed with the CSC.

The guidelines require requesting parties to submit IDs and endorsement from his/her employer or school dean or secretary (for students); then and only then would the personnel or archives staff of the CSC review the request. The reviewer, however, may only recommend the approval or disapproval of the request, because the final decision apparently rests still with the CSC directors. And finally, if the request is ever approved, the guidelines require requestors to pay a handsome fee of P200 per SALN.

PCIJ Tables. Access to Information, Aquino Administration, April 2011

Perhaps because the SALNs requested are not of its own officials and because the request was made before the new guidelines were adopted, CSC had previously been most prompt and helpful in giving PCIJ copies of the SALNs of the deputy ombudsmen. It could not, however, produce any for Ombudsman Gutierrez.

Interestingly, the new CSC guidelines cite rulings of the Supreme Court in two cases as rationale for the restrictions. The CSC says the high court has affirmed that government offices having custody of public documents, like SALNs, “may prescribe reasonable rules and regulations relative to the manner with which the public may examine/scrutinize/reproduce/copy the subject documents.”

In the last five years, the justices of the Supreme Court have themselves stubbornly refused to share copies of their SALNs and PDS. In 2006, the court issued a policy restricting public access to the SALNs of its justices, all other magistrates, and all court personnel. Aquino’s summons to transparency has hardly nudged the justices to reverse their self-serving policy, which remains in force to this day.

Exemplars & excuses

More open regimes are taking shape, however, in a handful of executive departments where Aquino has installed new officials. The performers in terms of access to SALNs of senior officials are the Department of Interior and Local Government (DILG) and the Department of Finance (DOF).

The National Economic and Development Authority (NEDA) and the Department of Social Welfare and Development (DSWD) are also comparably quick when requests for other documents are concerned. But then NEDA merely flipped and tossed to the Ombudsman the PCIJ’s request for SALNs.

To be sure, a corps of professional staff personnel, clear procedures and mechanisms for responding to public requests for documents, and the “tone at the top” from agency heads with solid grounding in the laws on transparency and accountability have helped transform these agencies into paragons of access to information practices.

Conversely, the absence of the these factors, as well as confused and confusing signals and compliance by Malacañang and other superior agencies, have lent the bad performers excuses to linger in secrecy and remain hostile to public requests for documents.

These include the AFP, PNP, as well as the Department of National Defense (DND), which seem stuck in the practices of old. The AFP referred the PCIJ’s request for the SALNs of the generals to the Ombudsman and the CSC; the DND to the Office of the President; and the PNP said it was still working on the request that PCIJ filed nearly three months ago.

As for Congress, until recently, the Senate and the House of Representatives were poles apart in how they managed requests for copies of SALNs. From 2007 to the present, the Senate has consistently responded promptly and fully to requests for SALNs. Since 2009, the House of the 14th Congress under Speaker Prospero C. Nograles Jr. had consistently refused to provide copies of its lawmakers’ SALNs.

Last March, however, the House finally opened up its records. But that was only after the PCIJ furnished the Ombudsman and the CSC copies of its requests, and cited a markedly different regime of openness in the Senate.

Last year, the FOI bill came just two steps shy of passing into law in the 14th Congress, largely on account of dogged legislative work by Liberal Party lawmakers like Aquino, then a senator with the opposition bloc.

The Senate had ratified the committee report but the House unto its last session day in May 2010 ignored and “dribbled” the report, saying it did not have the required quorum to ratify. The media later exposed this to be untrue as video footage showed that on that day at the House there were more lawmakers present to constitute a quorum.

On Jun. 16, 2010, asked by reporters whether he would assign priority to the FOI Act once he becomes President, Aquino had replied: “Yes. Iba pa rin ‘yung may force of law (It would be better if there is the force of law). That would be, I think, the more complete route.”

While the House of the 14th Congress mocked the FOI bill by feigning the absence of a quorum, Aquino’s statement that he would stand foursquare behind the FOI Act assured the bill’s advocates.

That statement, however, would be Aquino’s last public stand in favor of the FOI bill in the succeeding 11 months. – With reporting and research by Karol Anne M. Ilagan, Che de los Reyes, and Ojie Sarmiento of PCIJ; and with research assistance from PCIJ Interns Aencille Santos, Kim Chermaine Bañares, AJ Priela, Henor Gotis, Eric Rivera, and David Faustino, PCIJ, May 2011

Continue reading second part is here.

PCIJ Sidebar. Triggers and Barriers to Access. 1 May 2011