Sen. Miriam Defensor Santiago's Interpellation on Committee Report No. 2, Senate Bill No. 1733, or the "People's Freedom of Information Act of 2013"

A. On Section 3 (Definition of Terms)

1. Do the categories of information listed under the Definition of Terms adequately and accurately cover the categories of information found under the Constitution Bill of Rights Article 3, Section 7? The constitutional right to information covers three categories of information which are "matters of public concern," namely: (1) official records; (2) documents and papers pertaining to official acts, transactions and decisions; and (3) government research data used in formulating policies. [Chavez vs. Public Estates Authority, 384 SCRA 152(2002)].

Comments:

An understanding of the categories, as well as different types of information, is essential in distinguishing between the mandatory duty to disclose and the duty to permit access to information. As explained by the Supreme Court in the recent case of IDEALS v. PSALM, unlike the disclosure of information which is mandatory under the Constitution, the other aspect of the people's right to know requires a demand or request for one to gain."[1] The duty to disclose covers only transactions involving public interest, while the duty to allow access has a broader scope of information which embraces not only transactions involving public interest, but any matter contained in official communications and public documents of the government agency.

2. Are the definitions under Section 3, particularly those of official record and public records consistent with the use of such terms under other laws and executive issuances? 3. Is the definition of "information" consistent with the Data Privacy Act and other laws?

Comments:

There appears as well to be some confusion between what is information and the manner by which it is stored, which is given particular significance in Section 5 on Access to Information. That section specifically refers to record under the control of a government agency, regardless of physical form or format. No distinction is also made between information and records kept in governmental or proprietary capacity.

B. On Section 4 (Coverage)

1. Are the terms used to identify the covered government entities accurate and consistent with other laws, specifically Executive Order No. 292 or the Revised Administrative Code (see Introductory Provisions, Section 2 on General Terms)?

2. In the second paragraph of Sec. 4, it appears that private entities that act as public service contractors are covered by this law. However, the Constitutional principles on the right to information found in Article 2, Section 28 and Article 3, Section 7 refer to access to information under the control and custody of the government. Similarly, freedom of information laws in other jurisdictions also refer to information under the control of the state.

Comments:

The inclusion of private entities under the provision on Coverage may run contrary to these principles. Should not the service provided by private entities that act as public contractors be considered as part of the collection and retention by the government of relevant information? In that way, the public may exercise the right of information against the government. Note further, that with regard for example to mining transactions, the Supreme Court previously noted that Section 94 (f) of R.A. No. 7942 (Philippine Mining Act) requires the Department of Environment and Natural Resources to maintain the confidentiality of confidential information supplied by contractors who are parties to mineral agreements or financial and technical assistance agreements.

C. On Section 7 (Exceptions)

1. One of the exceptions under this proposed law appears to be presidential communications. The Chief Executive enjoys the presidential communications privilege which permits him to withhold information from Congress, the courts, and ultimately the public.

Under this bill, it appears that Congress is limiting the presidential communication privilege through section 7(B). If so, does this violate the separation of powers?

It may be argued that section 7(B) is removing or limiting the presidential communications privilege; it states that "[o]nce policy has been formulated and decisions made, minutes and research data may be made available for disclosure". Under the presidential communications privilege, the President cannot be compelled to reveal facts or deliberative material even after a decision has been made.

Comments:

Traditionally, the President enjoys the presidential communications privilege while other executive officials have the deliberative process privilege. The presidential communications privilege covers communications of the president and those advisors in operational proximity to him on matters that form the core of presidential authority. It protects from disclosure both facts and deliberative material (advice, opinions, recommendations, etc.), and continues even after a decision has been made. On the other hand, the deliberative process privilege covers communications of other executive officials. It protects from disclosure only deliberative material (not facts) and ceases after a decision has been made.[2] The presidential communications privilege is a form of executive privilege and is rooted in the separation of powers. As held in United States v Nixon:[3]

Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings. x x x A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution. (emphasis supplied)

Since the presidential communications privilege is rooted in the separation of powers, it is arguable that Congress cannot remove or limit it without violating the Constitution.

2. Is the intent of Sec. 7 (B) to remove the deliberative process privilege?

Comments:

The rationale for the deliberative process privilege is to prevent premature disclosure of decisions and to preserve the quality of decision-making. Executive officials might be less candid with their opinions if these would become public.[4]

The deliberative process privilege has its origins in common law and is normally under the power of Congress. However, the Supreme Court has recognized the existence of the privilege or something substantially similar to it that is rooted in the Constitution. Thus, in Chavez v. National Housing Authority,[5] it was held that: Sec. 28, Art. II compels the State and its agencies to fully disclose "all of its transactions involving public interest." Thus, the government agencies, without need of demand from anyone, must bring into public view all the steps and negotiations leading to the consummation of the transaction and the contents of the perfected contract. Such information must pertain to "definite propositions of the government", meaning official recommendations or final positions reached on the different matters subject of negotiation. The government agency, however, need not disclose "intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the exploratory stage." (emphasis supplied)

Would it not be wiser to maintain the privilege in order to prevent premature disclosure of decisions and to preserve the quality of decision-making?

4. On Section 7(d) - This provision exempts "drafts" of orders, resolutions, decision and audit reports from the coverage of the law. Is there a comprehensive listing of the pertinent laws, issuances or regulations to be affected by 7(d)?

Comments:

For example, with regard to drafts of orders, resolutions, decisions and deliberations of the Supreme Court, in its Resolution dated 14 February 2012, the Supreme Court enumerated privileged documents and communications as follows:

• Court deliberations or the deliberations of the Members in court sessions on cases and matters pending before the Court;

• Court records which are "predecisional" and "deliberative" in nature, in particular, documents and other communications which are part of or related to the deliberative process, i.e., notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations, and similar papers;

• Records of cases that are still pending for decision are privileged materials that cannot be disclosed, except only for pleadings, orders and resolutions that have been made available by the court to the general public.

5. On Section 7(e) - This provision exempts information obtained by Congress in an executive session. Does it refer to all kinds of information, without qualification? Is this provision based on legislative privilege?

6. With the passage of this law, will the instances of privileged information found in other laws or jurisprudence still be valid?

Comments:

There are other exceptions recognized in other laws or by the Supreme Court in decided cases which have not been included in this bill such as:

• Information shared or otherwise provided by a foreign government;

• Section 270 of the National Internal Revenue Code punishes any officer or employee of the Bureau of Internal Revenue who divulges to any person, except as allowed by law, information regarding the business, income, or estate of any taxpayer, the secrets, operation, style of work, or apparatus of any manufacturer or producer, or confidential information regarding the business of any taxpayer, knowledge of which was acquired by him in the discharge of his official duties;

• Section 14 of R.A. No. 8800 (Safeguard Measures Act) prohibits the release to the public of confidential information submitted in evidence to the Tariff Commission;

• Section 3 (n) of R.A. No. 8504 (Philippine AIDS Prevention and Control Act) classifies as confidential the medical records of HIV patients;

• Section 6 (j) of R.A. No. 8043 (Inter-Country Adoption Act) classifies as confidential the records of the adopted child, adopting parents, and natural parents; Section 94 (f) of R.A. No. 7942 (Philippine Mining Act) requires the Department of Environment and Natural Resources to maintain the confidentiality of confidential information supplied by contractors who are parties to mineral agreements or financial and technical assistance agreements.

D. On Section 8 (Mandatory Disclosure of Information)

1. Section 8 requires the mandatory disclosure of the SALN. Does the committee believe the requirements under the Code of Ethics of Public Officials and Employees (Republic Act No. 6713) are insufficient? Here are the relevant provisions of RA 6713:

"Section 8.

...

 "(C) Accessibility of documents. - (1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours.

(2) Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law.

(3) Any person requesting a copy of a statement shall be required to pay a reasonable fee to cover the cost of reproduction and mailing of such statement, as well as the cost of certification.

(4) Any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement. After such period, the statement may be destroyed unless needed in an ongoing investigation.

"(D) Prohibited acts. - It shall be unlawful for any person to obtain or use any statement filed under this Act for:

(a) any purpose contrary to morals or public policy; or

(b) any commercial purpose other than by news and communications media for dissemination to the general public."

2. Section 8(b)(7), (8), (9), (10) - Section 8 paragraph (b) deals with the mandatory disclosure of transactions imbued with public interest. In particular, subparagraphs (7) to (10) deal with procurements. Did these provisions take the requirements on procurement under Republic Act No. 9184 or the Government Procurement Reform Act into consideration?

3. With regard to Section 8(b)(15), the Supreme Court previously noted that Section 94 (f) of R.A. No. 7942 (Philippine Mining Act) requires the Department of Environment and Natural Resources to maintain the confidentiality of confidential information supplied by contractors who are parties to mineral agreements or financial and technical assistance agreements.

E. On Section 10 (Protection of Privacy)

What is the effect of the FOI Act on the Data Privacy Act? Were the provisions of the Data Privacy Act taken into consideration in the drafting of the bill?

Comments:

Access to information as provided for by the FOI Act must not be construed as a waiver of the constitutionally guaranteed right to privacy of individuals. With the FOI Act seeking to use the Internet and information and communications technology (ICT) as a means of promoting freedom of information, the provisions of the Data Privacy Act of 2012 must continue to be operative.

Making explicit reference to the Data Privacy Act of 2012 strengthens the provisions of the FOI Act, particularly Sections 7, 12, 17, 18, and 19; for instance, the provisions of Section 7 (f) should also be reconciled with pertinent provisions relating to civil records and the manner by which copies or access to content has been permitted under current legislation and rules.

F. On Section 12 (Procedure of Access) and Section 13 (Access and Processing Fees)

Is the procedure of access (i) intended to apply across agencies, (ii) regardless of nature of demand or request - demand to disclose, request for access, or request for copy, and (iii) regardless of nature of information sought to be examined or copied?

Comments:

This question is relevant because (a) there may be access procedures already in place with regard to certain forms of information, and (b) decided cases offer some guidance on the manner by which the right is to be protected or recognized by government. For example, with regard to request pertaining to official information relevant to on-going negotiations, the Supreme Court said "[t]he right only affords access to records, documents and papers, which means the opportunity to inspect and copy them. One who exercises the right must copy the records, documents and papers at his expense. The exercise of the right is also subject to reasonable regulations to protect the integrity of the public records and to minimize disruption to government operations, like rules specifying when and how to conduct the inspection and copying."[6]

With regard to public bidding process involving disposition of property, for example, prior to contract consummation, the agency must without need of demand disclose to the public the size, location, technical description and nature of the property being disposed, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and similar information. This must be made available at the start of the disposition process. Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition.[7]

G. On Section 17 (Keeping of Records)

1. On Section 17(a), considering the presumption in favor of access, are the information and records created and retained under this Section subject to disclosure or access? Is this authority in favor of the requesting party to compel not only disclosure or provision of access, but the creation of information or records (written transcript of minutes, where only audio recording available, for example) by the government agency?

Comments:

Note that in the case of Chavez v. Public Estates Authority, the Supreme Court said that "[t]he information that petitioner may access on the renegotiation of the JVA includes evaluation reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and other documents attached to such reports or minutes, all relating to the JVA. However, the right to information does not compel PEA to prepare lists, abstracts, summaries and the like relating to the renegotiation of the JVA."[8] (Emphasis supplied)

2. With regard to paragraph (e), will the charter of the UP Law Center be amended accordingly and is the reference to the Law Center not specific to the Office of the National Administrative Register ("ONAR")? If reference is to the UP Law Center, is there study on the capacity of the UP Law Center to further undertake the responsibilities under paragraph (e).

H. On Section 18 (Publication in the Official Gazette)

Is publication in the online version of the Official Gazette sufficient for purposes of publication (and in lieu of publication in newspaper of general circulation)? Note as well that Section 18(a) refers not to all legislative acts and resolutions but only those that are "important."

I. On Section 19 (Capacity-Building, promotion of best practices of appropriate information technology)

It appears that the proposed law relies heavily on internet communication technology in order to actualize the dissemination of accurate information. However, digital information can come in various formats. Are there provisions in this Act that will ensure that the information that will be presented to the public will be accurate, decipherable and "user friendly"?

Comments:

The principles of FOI will be defeated if the file formats used in the implementation of this Act shall be those that prevent or hinder analysis and understanding by the public. Some formats hinder analysis and understanding by the public. For example, budget spreadsheets scanned as pictures and uploaded as PDF files at best hinder and at worst disallow the public from the analysis of the numeric values of the spreadsheet. Digital information can also be manipulated; thus, their authenticity must be verifiable.

Government websites must also provide mechanisms to accept feedback from citizens. By allowing citizens to put their comments on the website, the public is made aware of whether the agency is complying with the intent and provisions of FOI.

J. On Section 20 (Use of Plain Language)

What is meant by the phrase, "plain language"?

Comments:

Surprisingly, there are many definitions of "plain language." Literacy and communications scholars supposedly have defined plain language as:

• clear, succinct, and designed to ensure that the reader understands as quickly and completely as possible;

• Clear and effective communication;

• The idiomatic and grammatical use of language that most effectively presents ideas to the reader.

Is this what the committee means by plain language?

_______________________

[1] Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation (PSALM), 682 SCRA 602(2012).

[2] See Neri v. Senate, G. R. No. 180643, 25 March 2008; Akbayan v. .Aquino, G.R. No. 170516, 16 July 2008; Michael N. Kennedy, Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process Privilege, Northwestern University Law Review, Vol. 99 No. 4 (2005), available at http://www.law.northwestern.edu/lawreview/v99/n4/1769/lr99n4kennedy.pdf

[3] 418 U.S. 638; see also Almonte v. Vasquez, G.R. No. 95367, 23 May 1995 and Senate v. Ermita, G.R. No. 169777, 20 April 2006

[4] Michael N. Kennedy, Escaping the Fishbowl: A Proposal to Fortify the Deliberative Process Privilege, Northwestern University Law Review, Vol. 99 No. 4 (2005), available at http://www.law.northwestern.edu/lawreview/v99/n4/1769/lr99n4kennedy.pdf.

[5] G.R. No. 164527, 15 August 2007.

[6] Chavez vs. Public Estates Authority, 384 SCRA 152(2002).

[7] Initiatives for Dialogue and Empowerment through Alternative Legal Services, Inc. (IDEALS, INC.) v. Power Sector Assets and Liabilities Management Corporation (PSALM), 682 SCRA 602(2012).

[8] Chavez vs. Public Estates Authority, 384 SCRA 152(2002).