Position paper on the proposed Freedom of Information Act

N.B. – This is an advance copy of a position paper I wrote for the public hearing scheduled today (February 18), 1:30 p.m. of the Senate Committee on Public Information and Mass Media chaired by Sen. Alan Peter Cayetano regarding seven bills and one resolution on the proposed Freedom of Information Act.

Allow me to apologize to the members of this committee for two reasons. First, I am forced to be absent in today’s public hearing as the faxed letter of invitation dated February 16 reached my office only yesterday morning (February 17) and I cannot cancel my two Wednesday classes at UP. Second, the rushed nature of the request prevented me from making a detailed annotation of the seven bills and one resolution to be deliberated upon today.

As a result, my analysis of the proposed Freedom of Information Act shall focus on the pertinent bill approved on third reading at the House of Representatives and already transmitted to the Senate on May 12, 2008.

The proposed Freedom of Information Act – as may be gleaned from the contents of House Bill No. 3732; Senate Resolution No. 11; and Senate Bill Nos. 16, 109, 576, 592, 1578 and 2571 – aims to strengthen the right of the people to have access to information, a right that is explicitly guaranteed in the 1987 Constitution.

Having access to information therefore is important for a person to exercise his or her other basic freedoms, particularly of speech and of expression. Through this proposed measure, a person is guaranteed that he or she will not be deprived of information deemed important in his or her decision-making.

There is cogent reason for the people to support the proposed Freedom of Information Act though journalists should be wary of the implications of certain provisions. The media can also benefit more from the proposed measure if it includes the release of previously classified documents with historical and social value after a certain period of time.

Given that information gives power to those who have access to it, the proposed Freedom of Information Act could be empowering to marginalized sectors of society that are normally deprived not only of basic services but also of adequate information regarding their plight. The provisions in the proposed Freedom of Information Act (based on the contents of HB 3732 and other related Senate bills) give clear guidelines in requesting needed information.

In the context of journalism, however, there is a need to analyze the implications of Sections 9(e) and 11 of HB 3732 which state that a “government agency shall comply with [the person’s] request within ten (10) calendar days” within which days also a government agency shall inform the person if his or her request is denied, whether “in whole or in part.” Since deadlines are an everyday reality for print, broadcast and online journalists, government compliance with or denial of information requests within a 10-day time frame is both unrealistic and unacceptable.

Even if journalists can be passionately persistent and remarkably creative in information gathering, government agencies should ensure expeditious granting of their requests. In order to discourage a journalist from circumventing the law in his or her quest to get the elusive information, the government should be transparent in providing necessary information and efficient in acting on such requests.

It is therefore hoped that a special provision be included for the government agencies’ expeditious granting or denial of information requests from journalists, subject to the same “procedure of access” as stated in Section 9(a) of HB 3732.

In pushing for this provision, it must be stressed that special treatment is not being requested for journalists. Expeditious granting or denial of information requests from journalists should be seen in the context of government’s commitment to provide an atmosphere conducive to the exercise of press freedom. The government’s cooperation with media organizations would surely help fulfill the latter’s sworn duty to provide relevant and up-to-date information to the people.

What also proves to be missing in the proposed Freedom of Information Act is the declassification of certain confidential documents after a certain number of years. It may be recalled that then US President Bill Clinton signed Executive Order No. 12958 in April 1995 which authorized the release of previously classified national security documents “more than 25 years old and [and deemed] to have permanent historical value under title 44, United States Code (Sec. 1.6c of EO 12958).”

As a result of the inclusion of certain previously classified national security documents under the US Freedom of Information Act, the people were better informed of what the US government has done through the years. The Baltimore Sun, for example, requested and got hold of two previously classified Central Intelligence Agency (CIA) manuals titled “KUBARK Counterintelligence Interrogation – July 1963” and “Human Resource Exploitation Training Manual – 1983.”

The latter gave details on torture methods used against suspected subversives in Latin America in the 1980s, effectively refuting past denials of the CIA. By requesting the classified information, details like these were published in a January 1997 article by The Baltimore Sun: “Torture methods taught in the 1983 manual include stripping suspects naked and keeping them blindfolded. Interrogation rooms should be windowless, dark and soundproof, with no toilet.”

If such a provision were included in the proposed FIA in the Philippines, the media and the public can greatly benefit from the full disclosure of certain confidential documents that have historical and social value, particularly those that are related to burning issues of the day, all of which clearly have historical contexts. Declassified national security documents could provide more details, for example, of what life was during Martial Law from 1972 to 1986.

In this context, it would do well for the proposed FIA to provide for the full disclosure of classified documents more than 25 years old if they are deemed to have permanent historical and social value.

Through these revisions to the proposed FIA, the government may uphold freedom of the press and implement “full public disclosure of all…transactions involving public interest (Art. II, Sec. 28 of 1987 Constitution).”

4 thoughts on “Position paper on the proposed Freedom of Information Act”

  1. What would the implications of a Philippine FOIA have on a case such as ‘Hello Garci’? This, of course, is granting that under such an FOIA there would be a provision similar to the Presidential Records Act or the Watergate Act, where all the President’s communications would be recorded.

    Reply: There is no consistent, systematic and organized archiving of government records at present, given the overlapping functions of the NSCB, NSO, PIA, National Library and other related agencies, among other issues. That would partly explain why the purpose of a “freedom of information” law could be defeated by the quality of information one could get from government. As regards the “Hello, Garci” controversy, one does not need an FOIA to get the necessary information as, from what I gather, important documents like the results of an independent investigation are not marked confidential. It’s just that the government refuses to disclose the findings since it’s supposed to be “internal.”

  2. The rights of the people had been diluted by the State itself when it uses its military against its people. No less than the Chief Justice of the Supreme Court sees the need for protection of people’s rights when it introduced the writ of habeas data where a person can petition the high court on state information regarding a person, the state purpose and use of such information and the opportunity to correct or destroy wrong information affecting one’s rights.

    Does the FOIA address any destructive information that the state might have collected that will adversely effect on person’s life or liberty?

    Reply: As proposed, the FOIA does not classify between positive and destructive information. It mainly seeks to put in writing the procedure for requesting information from government agencies. To be honest, we do not need this particular law if government would just simply practice transparency. In terms of implementation, I am afraid that this might even be used as a way to delay or even avoid providing information to the people, particularly journalists.

    By the way, I sincerely hope that you would refrain from using someone else’s identity in posting your comments. Judging from your sound analyses, I think you are intelligent enough to know that what you’re doing is identity theft which is both unethical and illegal.

    You are more than welcome to post comments in the future, but I hope that you would use your real name next time. Thank you.

  3. Sir Danny,

    It is not difficult to return the favor especially for the liberty of posting. I have to thank you for your patience and kindness.

    In regard to proposed FOIA, there can be forseen obstacles on the implementation (1) delays or denial that the request is too broad, (2) delays or denial that no information met specific request, information outside specific will not be disclosed, (3) if there is no previous information, the state will not confirm or deny information, (4) various exceptions to information disclosure can easily be used (5) as last resort, executive privilege information can always be invoked like in ZTE/NBN deal, (6) weak oversight by a body (ombudsman) which is in the practice of less disclosure and placed no priority interest on disclosure, (7) no deterrence for obstruction of information, (8) judicial recourse is a lenthy process.

    Reply: You’re right, and this partly explains why some concerned journalists and media groups are not that excited about this particular bill. You’re well aware that laws in this country of sorrows are interpreted according to the interests of the powers-that-be. Isn’t it unthinkable, for example (and pardon the digression), that Philippine jurisdiction over a US soldier convicted of rape in our country could be interpreted in such a way that the US would still get jurisdiction over him? The “broadness” of a particular request could either be the fault of the one making the request or a misinterpretation of the government agency. My suggestion to include a specific provision on declassification of information with historical value after a certain period of time could be useful in providing relevant information to the people, but it all boils down to how the entire law will be implemented. All the best!

  4. Sir Danny,

    General laws can easily bog down by implementation just as policy statements can be lost in meaning by a single provision. Like Section 10 of VFA on detention agreed by US, is superior to the whole article 5 paying lip service to Philippine jurisdiction over US personnel on crime. The arguments of Dr. Nemenzo in September 2008 became prophetic in Smith’s case, if you click on the link on my name.

    It is very interesting to see how the proposed FOIA will materialize when it will become a law. No matter the results, journalists have to try the experience so it can be modified to serve its purpose.

    Thanks.

    Reply: Interesting point. As stated, I share the “non-excitement” of some concerned journalists over the FOIA though I hope that it will not be abused by the powers-that-be and instead maximized by the media in the dissemination of relevant information. I for one am very interested to request confidential data on Martial Law atrocities especially in the early years starting 1972.

    For some strange coicidence, I wrote about the VFA in my column article this week for Pinoy Weekly. Do check it out if you have time.

    Thank you for sharing the link to Dr. Nemenzo’s article.

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