By Jaemark Tordecilla
Philippine Center for Investigative Journalism

Last of Two Parts

(Continuation from Part 1 – Access to information under PNoy : Some open spaces, many close

WHEN THE 15th Congress opened last June, there seemed to be renewed energy toward passing the Freedom of Information (FOI) Act, which had floundered in the legislature’s previous incarnation, just when transparency advocates had thought it was about to be ratified.

In the House of Representatives, Quezon representative Lorenzo ‘Erin’ Tañada III, a staunch FOI advocate and a member of the Liberal Party, convened a technical working group to jumpstart the process.  At the other end of the metropolis, the Senate committee on public information, chaired by Senator Gregorio Honasan, held a hearing to discuss the bill.

But the momentum to pass the measure has since fizzled and the Aquino administration’s flip-flop on the bill appears to be the main cause of the lack of legislative activity on it.

That flip-flop, in turn, apparently comes from wariness, if not fear, from within Malacañang that an FOI law would imperil the privacy of government officials and perhaps even put national security at risk.

This is even as Palace officials reiterate that the Aquino administration remains committed to transparency and good governance.

“Transparency doesn’t even require an FOI bill,” says Manuel L. Quezon III, Undersecretary of Presidential Communications Development and Strategic Planning. “Generally, (transparency means) are you willing to accommodate the questions that are brought by reporters or researchers, are you more forthcoming with your budget data, are you more liberal in terms of what sort are non-controversial items that can be immediately put online.”

As the Liberal Party standard bearer in the 2010 elections, then Senator Benigno Simeon ‘Noynoy’ Aquino III had promised that the FOI bill would be among his administration’s legislative priorities.  He had also said that having a “force of law” was necessary for transparency in government to really take place.

‘Unreasonable requests’

 

Five months after Aquino took his oath as president, Secretary Herminio Coloma of the Presidential Communications Operations Office released a statement saying that the Malacañang had reservations about making the measure a priority, because government operations may be hampered by unreasonable requests for information.

By last February, despite appeals of FOI advocates, the bill was nowhere on the list of priority measures submitted by the Palace for the Legislative-Executive Development Advisory Council (LEDAC).

 

Today lawyer Nepomuceno Malaluan, spokesman of the Right to Know, Right Now! Coalition of over 160 civil society groups, says, “While Congress has made initial advances at the committee level, we have seen that there has been a very visible slowing down of the legislative process after the Malacañang held back from including FOI among its list of priorities.”

Rough sailing

Senator Antonio Trillanes IV himself counts the bill among his legislative priorities, but concedes that it might face rough sailing even in the Senate without the Palace’s certification.

“This bill, no matter how important this is, will have to take a backseat and we will take the cue from the president,” he says. “(But) I’m going to give the president the leeway he needs in order to govern this country.  If he feels, let’s say, national security or poverty alleviation will be the priority over transparency then I’m willing to give him that.  “

Presidential Spokesman Edwin Lacierda, meanwhile, has justified the exclusion by saying that Malacañang needed more time to study the FOI measure. Lacierda says that an “inter-agency committee” would be organized to look into the Palace’s concerns.

But the Palace hasn’t said anything much about the matter after that, leaving FOI advocates seriously worried.  “We know that every day that the process does not move diminishes the opportunity to have the bill passed,” says Malaluan

“Our experience in the last Congress is that as you approach the third year of the three-year term of Congress, it becomes more difficult to get the bill passed,” he said.

To be sure, there are laudable efforts by the administration to improve transparency and openness when it comes to public information. Secretary Jesse Robredo of the Department of the Interior and Local Government (DILG) oversees one of the most ambitious efforts of the Aquino administration to improve transparency in government: requiring full disclosure of all local government units (LGUs) of financial information.

12 documents

“For the LGUs,” says Robredo, “we (require the disclosure) of 12 documents, including the use of the economic development fund, procurement and budget statements, and even a document showing all the obligations of the LGUs as far as borrowings and amortizations is concerned. Last year, it was an initial effort; I think compliance was between 25 to 30 percent.”

Robredo says this kind of openness and transparency provides benefits to the citizens, both directly and indirectly.

“Let’s say, for instance, I publish a notice of bidding – this will serve as a benchmark to suppliers if they are interested in engaging with the LGU,” he says. “If I’m a supplier, I now know the benchmark of the cost in order supply material or equipment. Now the other constituents will be watchdogs; if it is overpriced, then they will certainly know that it is overpriced. So what happens now is that you will have people with varied interest in the information provided, but this varied interest would ultimately (serve) the interest of the public.”

In 2010, the DILG issued a memorandum circular to encourage local governments to disclose these financial documents. This year, however, there is a provision in the General Appropriations Act that would actually require the local units to disclose the documents, and Robredo says that his department is willing to pursue legal sanctions against those who would refuse to comply.

Law would help

“I certainly think that the threat of legal action will significantly improve compliance,” he says. “In time, probably, there is no need for it. But inasmuch as this is the first step from the kind of system we had before, wherein at any given point in their term, any local official can get away with not disclosing how he or she had spent (public) money. So it might be good if, at least, it will be backed up by legal sanctions if they do not comply.”

In fact, having an FOI law in such a situation would be ideal. Because the proposed FOI act contains a provision of penalty for non-compliance, it would strengthen campaigns, such as the DILG’s, to improve transparency in government agencies. It would also define processes that would prevent government agencies from putting up arbitrary barriers involving the disclosure of public documents.

“There are a number of substantive and procedural gaps that can only be addressed by legislation,” says Malaluan. “One procedural gap is an absence of a uniform procedure for accessing in formation, so [requests] are handled differently across government agencies.”

Cause of delay

Because of a lack of legislation, the government gets to determine what can be covered and not covered by the Constitution’s mandate of the right to information. “There’s a big amount of discretion that will be remedied by having a clear list of exceptions under this bill,” Malaluan says.

These exceptions are among the concerns being raised by the Palace preventing it from certifying the FOI bill as urgent. Says Quezon: “In every administration, there is always the intelligence community, it is always the national security community, and the defense community, and of course, the diplomatic arms of the government that are the most concerned, being very specific and particular in terms of disclosure, of what can be disclosed and when.”

 

This, according to Quezon, has been the cause of the delay in formulating the official Malacañang stand on the bill.

“These are the things that get a little slow, because the lawyers are being involved and they have to hammer it out,” he says. “This is both for the protection of the public, in terms of it legitimate rights, as well as of the state, in terms of, you don’t want to imperil your national security order, military and police operations, on the basis of haphazard disclosures.”

Overstated worries

 

But Trillanes, a former military man, says such concerns might be overstated.

“I believe the (armed forces) in general would welcome this bill because in the end it will be to their benefit,” says the senator, who was among the leaders in the 2003 Oakwood mutiny that stemmed from allegations of military corruption.

“Once you get rid of the culture of corruption in the bureaucracy,” he says, “now we can be more efficient on our use of our public funds, and that will result to having more benefit for the welfare of the soldiers, better equipment, and that can help them in accomplishing their mission. But of course if you’re talking about operational security, how they would conduct their military operations, it will be part of the exceptions in the Freedom of Information Bill.”

 

“Many of the concerns have been addressed already in the bill,” Malaluan says. “For some of the concerns that we feel might have been overlooked in the past legislative process, we have expressed our openness to revisit some of these issues, we have submitted our petition papers, we have supported the study made by Rep. Tañada who was the technical working group committee chairman in the House of the Representatives addressing some of the concerns.”

 

Malaluan says that he and his fellow FOI advocates have remained open to a dialogue with the Palace. Undersecretary Quezon, for his part, says that Malacañang also wants to continue the conversation on the bill.

 

“The President directed at the start of this year that we engage in substantive discussions with freedom of information advocates and with those who have been proposing legislation in Congress,” he says.

 

In an interview with PCIJ, Quezon recalls with relish a meeting two months ago between the Communications Group and the FOI advocates. “As early as February,” he recounts, “we met with the freedom of information coalition people and we had a frank and open discussion, and I think a very good one. This led in turn to other discussions within the government so that we could hammer out our positions and areas of concerns that we had engaged in, in terms of the dialogue. “

 

Sunny picture?
To the Palace then, things are still looking sunny with the FOI bill. “It’s been moving quite well,” says Quezon. “There have been several meetings on this core. And the question will then become ‘What sort of engagement will the President have?’”

In Quezon’s book, the Palace precisely wants to reconnect with the advocates soon. “There has to be a final agreement,” he says. “We’ll be going back, for example, to the proponents of the Freedom of Information act having gotten our positions together and we’ll be engaging in a little more dialogue.

What the Palace needs is more time for more discussions, he says. “The objective here,” Quezon says, “is that once a general agreement is reached, it will enable speedier and smoother passage once all the parties have basically reached an understanding.”

 

The undersecretary, however, declines to say when Malacañang would be able to come out with a clear-cut position on the FOI bill that would address its concerns. He does note, though, that the process has “moved substantially forward.”

Unfortunately, with time slowly running out once again on the FOI bill, advocates say “moving substantially forward” just won’t cut it.

“We are really quite anxious and apprehensive that any further delay of the legislative process might jeopardize our ability to have this bill finally passed into law in the 15th Congress,” says Malaluan. “We believe that at this point the Aquino administration must really state where it stands on the bill so that the citizens will not be left hoping and hanging, giving them the benefit of the doubt for so long.  We believe that it’s about time that the Aquino administration already declares where it stands exactly on the passage of the Freedom of Information Act.”

Robredo says his principal is still committed to the passage of the FOI bill.

“I’m quite certain that, as a matter of principle, he would like transparency and accountability to be promoted,” he says. “I think it should be prioritized, I think this administration is prioritizing it. We just need to fine-tune it, so that once we say this is it, then we are ready.” – With reporting by Ed Lingao, Stephanie Directo, Krystal Jimena, and Essen Miguel, PCIJ, May 2011

SIDEBAR

The other side

TIME and getting thrown into the other side of the fence can change one’s perspectives somewhat.

Less than a year ago, Manuel L. Quezon III was a columnist and television analyst. Although he had worked earlier as a consultant for the presidential museum, there was no doubt where his heart lay when it came to the Freedom of Information Act.

In his column and blog, he cited quotes from an FOI advocate he had interviewed and fired broadsides against the leadership of the 14^th Congress for resorting to “little stunts” to scuttle the FOI bill.

These included, Quezon wrote in a Jun. 5, 2010 blog post, the switching off of microphones to deny FOI authors voice and volume at the session hall, “mysterious text message urging congressmen not to show up at the House to prevent a quorum… a verified memorandum from the Secretary-General of the House urging committee staff to pack the galleries in anticipation of a mobilization by supporters of the FOI,” and “the publication of the House agenda placing the FOI at the bottom of its order of business, instead of first in line as befits a priority measure.”

“As it turned out,” wrote Quezon, now undersecretary of Presidential Communications Development and Strategic Planning, “the grim expectations of the supporters of the FOI were fulfilled when the session was gaveled to a close when the quorum was questioned.” This took place on the last session day of the 14^th Congress, which was partial to Aquino’s predecessor, Gloria Macapagal Arroyo.

The FOI advocate, Quezon added, “suggested that the House leadership had second thoughts because of the Law of Unintended Consequences… where a seemingly harmless but fashionable legislative proposal ended up scuttled because its implications started to sink in.” In other words, according to Quezon, “it’s scorched-earth complexed with sandbagging.”

Then, there was no denying Quezon’s vigorous push for the FOI. He had so declared in an earlier blog on May 22, 2009, and insisted on bigger and deeper guarantees of access. He said good record-keeping by government agencies should that be a requirement, and that even “concepts like Executive Privilege” should be reviewed.

Quezon wrote: “I support a Freedom of Information Act but with the understanding that it may be very much a Dead Letter even if enacted. Its effectiveness will depend on an institutional awareness of the importance of record-keeping, and the safeguarding of official records – which brings up the problem that much of what is of public interest is not being recorded at all.”

“Minutes of official meetings, and institutional diaries and so forth,” he added, “not all government agencies are created equal in this regard and even those with a tradition of record-keeping, have their records protected by new interpretations of existing laws or concepts like Executive Privilege. This can only make getting to the bottom of current events even more difficult than it already is.”

Like Quezon, Communications Secretary Ricky Carandang had spoken and written fairly much in favor of the FOI before he became part of the Aquino Cabinet in July 2010.

Then a broadcaster and blogger, Carandang in one tweet even lamented the defeat of the FOI bill in the 14^th Congress. He wrote: “RIP Freedom of Information Bill. Died 4 June 2010.” – Jaemark Tordecilla, PCIJ, May 2011