Tag Archives: foia

A call for a ‘media-friendly’ freedom of information act

N.B. – This was published in The Lobbyist (August 2) where I write a column (Subtext).

Unless the Aquino administration adopts the “Bayan Muna version,” I cannot find any reason to support current government initiatives to pass a freedom of information act (FOIA).

As it is, the proposed consolidated version of the FOIA pending in the House of Representatives is so watered down that access to information becomes practically absent. My major concern here is the proposed creation of an Information Commission whose powers and functions include, among others, the imposition of “temporary or permanent ban on the disclosure of information, upon finding that the disclosure will be detrimental to national security and public interest.” (Sec. 20[d], emphasis mine)

It is bad enough that public interest is not in the definition of terms. What makes matters worse is the broad definition of national security. According to the draft bill, national security “refers to a state or condition wherein the national interests of the country, the well-being of its people and institutions and its sovereignty and territorial integrity are protected and enhanced.” (Sec. 2[f])

If the administration adopts this version of the FOIA, it is possible to deprive people of information by just simply invoking this broad definition of national security. It becomes possible, after all, to invoke the nebulous phrase “people’s well-being” not only in denying access to information at a particular time, but also in permanently banning it.

For journalists trying to get information from government offices, they may also find it hard to comply with media organizations’ tight deadlines with this provision: “The government agency shall comply with such request as soon as practicable, and in any case within fifteen (15) working days from the receipt thereof. The period may be extended whenever the information requested requires a search of the government agency’s field or satellite offices, examination of voluminous records, the occurrence of fortuitous events or other analogous cases.” (Sec. 22[3])

As far as the “Bayan Muna version” is concerned (i.e., House Bill No. [HBN] 133 introduced by Bayan Muna Reps. Teodoro Casiño and Neri Javier Colmenares), it is clear that “(a)ll government agencies shall expeditiously grant information requests from journalists.” (Sec. 8, HBN 133) Aside from that, compliance for requests from the general public is also more expeditious compared to the proposed consolidated version: “Each government body, upon any request for information, shall afford access to the appropriate source of official information being requested within five (5) working days after its receipt. In no case shall this period be extended unless there is a need to sort, search or collect the specific official information being requested from voluminous sources of information, in which case, the person making the request shall be duly notified of the extension and reasons therefore. In no case shall the extension be more than seven (7) working days counted from the expiration of the fifth working day.” (Sec. 9)

What also makes HBN 133 both progressive and media-friendly is the existence of a “sunshine clause” which is conspicuously absent in the proposed consolidated version. Please read Sec. 5(k) of HBN 133 to know what is meant by a sunshine clause: “All classified information contained in all government agency records that (1) are more than 25 years old, and (2) have been determined to have historical value shall be automatically declassified whether or not the records have been reviewed. Subsequently, all classified information in such records shall be automatically declassified no longer than 25 years from the date of its original classification.”

This particular provision clearly helps not only journalists but also other interested researchers in getting relevant information to analyze issues that continue to haunt us today like the dark days of Martial Law (1972-1986).

In 1995, then US President Bill Clinton through an executive order authorized the release of previously classified national security documents “more than 25 years old [and deemed] to have permanent historical value.” As a result declassification of confidential documents in the US, I wrote in a position paper I submitted to the Philippine Senate in 2009 that “The Baltimore Sun 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.’”

Here in the Philippines, one can only imagine what a persistent journalist or researcher could uncover if a Freedom of Information Act were to include a sunshine clause as proposed by Casiño and Colmenares. Perhaps it would be possible to finally know, for example, who ordered the 1983 assassination of former Sen. Benigno Aquino, Jr., the incumbent President’s father.

It is in this context that the Aquino administration should adopt the “Bayan Muna version.” As it is right now, the proposed consolidated version of the FOIA is nothing but a case study in irony: Because of its weaknesses, the law that supposedly promotes and upholds access to information is the one that could be used to restrict it.