Cebu Citizens-Press Council

By Rosemarie Olaño-Versoza

(This article was first published in the Cebu Journalism and Journalists 8 magazine released in September 2013.  Versoza is a member of the Cebu Media Legal Aid, the legal adviser of the Cebu Citizens-Press Council. To date, the Philippines has yet to pass a Freedom of Information law.)   

The continuing struggle for the passage of a Freedom of Information (FOI) law in the Philippines is a battle not just for journalists, reporters or mediamen, but more so, for ordinary citizens.

Right to information on matters affecting the public and the correlative right to access official records and public documents are well enshrined in the 1987 Philippine Constitution. These rights belong to all Filipinos, not just to journalists.

The free exercise of these two intertwined rights provides the essential tools for active people participation in governance.

As the “boss,” the Filipino people need to know the programs and policies being laid down by their government for basic and social services, economic affairs and other issues affecting the nation, as well as how these are all being carried out.

Citizens need to know how and where their money is spent, and what contracts, agreements and transactions are entered into, for and in their behalf.

They need to know the rules and regulations crafted for them by their chosen legislators.

They need to know how their public officials exercise their powers and functions—whether they are behaving or misbehaving in office and whether they are efficient or inefficient in the performance of their duties and responsibilities.

Only by maintaining a free flow of communication and information between the government and the governed, between the Philippine government and the Filipino people, can there be transparency in government operations.

Arming citizens

The Supreme Court succinctly explained in the case of Chavez versus PEA and AMARI (G.R. No. 133250, July 9, 2002) that it is only when the citizens are armed with correct information that they can actively and intelligently participate in public discussions that could lead to the formulation and effective implementation of policies. Because, howsoever citizens react, comment on or criticize government, if they do not have the right information, then such reactions, comments and criticisms would have no basis. Citizens could not hold government officials accountable because whatever they said, even if made without prior government restraint, become mere conjectures and speculations.

The Constitution even mandates the state to make available whatever information that may be needed that is of public concern. For while it is the right of the citizens to demand information, the state must have a policy to disclose information and transactions, even without being demanded by the citizens and even without being sued by them.

Not truly open

In legal theory, there is no discretion in giving access to information. As long as the information involves a matter of public concern, it is supposed to be open to the public.

But while indeed the right to information and access to public records are supposedly self-executing, reality shows that this is not so.

Because there is no FOI law, the country does not have a consistent or standardized procedure in accessing public information.

Different government agencies react differently to requests for information. Many government agencies do not even recognize that providing information is part of their functions. Oftentimes, the manner by which information is accessed has become personality-based or personality-dependent.

Truth be told, ordinary citizens need the FOI law more than journalists do. For between ordinary citizens and members of media, both demanding and seeking public information, the latter has better chances of getting them directly from government offices. An ordinary citizen is usually given the runaround. Hence, ordinary citizens rely solely on media for public information.

Moreover, the manner by which government itself volunteers information is issue-dependent.

If the information appears to be “harmless,” or better yet, if the information will make the government agency or official look good, government itself will call on media for them to disseminate such information. But if the data would put the office in a different light, they will hide them for as long as they can.

No penalty

Another problem is the lack of adequate remedy to compel public disclosure.

Who among our ordinary citizens would go to the extent of filing a case in court just to compel officials to disclose government transactions and contracts?

Ordinary citizens, and even journalists, won’t bother to file cases just to compel disclosure of information involving public interest, unless if it is for the most compelling of reasons.

Take note that the cost of litigation in the Philippines is high. And even if court action is taken, years shall have already lapsed before access is judicially mandated and by then, the information sought may have become irrelevant.

Moreover, there is no definite sanction in cases of violation of the right to information.

While there is a law (Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees) directing public officials and employees to respond to letters sent by the public within 15 days from their receipt, it does not clearly state the liabilities and penalties for violators.

Ideally, and this is what the proposed FOI law seeks to achieve, it does not matter whether the requesting party is a journalist or a farmer or a student, and it does not matter to what government office the request is made. Regardless of the government office, once a request is made, and the information or document requested is identified to be of public concern, it should be released.

Fearful officials

Government’s hesitation to pass an FOI law stems from its unfounded fear that “pseudo-journalists” or ordinary citizens might use the information as additional arsenal to attack public officials.

These fears, however, are purely speculative. And even if it be true, should we allow it to frustrate our goals toward government transparency and public accountability?

Again, the Supreme Court, in the pre-Martial Law case of Subido versus Ozaeta (80 Phil 383 [1948]), addressed this issue by saying that it is not the duty of government officials “to concern themselves with the motives, reasons and objects of the person seeking access to the records” and “it is not their prerogative to see that the information which the records contain is not flaunted before the public gaze or that scandal is not made of it.”  It is up to the requesting party how he shall use the information, subject to consequences of existing laws.

For a country that continues to take pride in having one of the most vibrant and free press in the whole of Southeast Asia and, maybe, across the world, it is quite an irony that Filipinos still do not enjoy full access to government documents, records, data and transactions.

It’s been more than 25 years since our Constitution was passed guaranteeing the right to information and access to public records but, until now, we still do not have an FOI Law. Certainly, its passage is long overdue for Filipinos.