Position Paper on the Eight Pending Senate Bills on Freedom of Information

Position Paper on the Eight Pending Senate Bills on Freedom of Information

Danilo A. Arao
Assistant Professor, Department of Journalism
College of Mass Communication
University of the Philippines (UP) Diliman

Senate Committee on Public Information and Mass Media
September 4, 2013

The University of the Philippines College of Mass Communication (UP CMC) has already issued a statement last January 28 on the need for an “authentic” freedom of information (FOI) act. Upon close scrutiny of the eight pending Senate bills related to the FOI, there is a need to repeat UP CMC’s three recommendations:

  1. “In the context of transparency, there should be a clear “sunshine clause” in the proposed FOI law to declassify information found to have historical value after 15 years. (Fifteen years is suggested as this is the prescriptive period for the filing of cases against graft and corruption under Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act.)
  2. “In the context of accountability, there should be no provision implying that the FOI will be prospective in nature. Any attempt to prevent the FOI from being retroactive would make classified but important information under previous administrations practically inaccessible.
  3. “There should be an explicit provision allowing the expeditious granting of information to journalists and researchers. In the Senate and House of Representatives’ versions of the proposed FOI law, the maximum waiting period of 15 working days could compromise a media practitioner’s data gathering.” (For the full text of the UP CMC statement, please go to http://masscomm.upd.edu.ph/event/cmc-calls-authentic-freedom-information-act.)

According to UP CMC, these recommendations “would help promote knowledge exchange, improve media practice, and ensure the smooth flow of information to the people, to whom access to government-held information is vital so they can hold their officials to account, and for the sake of democratic participation in governance and the making of State policy.”

While SBN 64 states that an executive order establishing guidelines for the information to be kept secret “shall specify the reasonable period after which the information shall be automatically declassified or subject to mandatory declassification review”(Sec. 7a, Exceptions), an authentic FOI should have something more explicit in terms of time frame in particular and wording in general.

In the House of Representatives, House Bill No. 347 ( http://congress.gov.ph/download/basic_16/HB00347.pdf) provides for a clear sunshine clause under Section 5k (Mandatory Compliance): “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.”

It is hoped that the Senate Committee on Public Information and Mass Media could also include this provision in the consolidated version, keeping in mind the UP CMC’s recommendation that the period of declassification be pegged at 15 years instead of 25 years.

As regards the expeditious granting of information to journalists and researchers, it is highly recommended that Sec. 8 (Requests for Access to Information) of HBN 347 be incorporated into the Senate’s consolidated version of the proposed FOI: “All government agencies shall expeditiously grant information requests from journalists.”

In the context of journalism, there is clearly a need to analyze the implications of a government’s compliance as regards information request within a specified number of days. Since deadlines are an everyday reality for print, broadcast and online journalists, government compliance with or denial of information requests within a seven to 15-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.

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.

Going back to the issue of declassification of certain confidential documents after a certain number of years, it is interesting to note 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 the sunshine clause is included in the proposed FOI act 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.

Through these revisions to the proposed FOI act, 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).”

N.B. – This position paper is an updated and expanded version of what Prof. Arao submitted to the Senate in February 2009. The original version may be retrieved from https://risingsun.dannyarao.com/2009/02/18/position-paper-on-the-proposed-freedom-of-information-act/.

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