Passage of Freedom of Information Law (PH0062)

What is the problem the commitment addresses?

Section 7 of the 1987 Philippine Constitution emphasizes the right of the people to information on matters of public concern. However, 30 years since the first Freedom of Information (FOI) Bill was filed, the Philippine Congress has yet to pass a legislation that promotes access to information.

Lack of transparency and accountability which may contribute to corruption and inefficient public service delivery are a few of the major problems this commitment will address. Low (or lack of) participation from citizens due to lack of knowledge or information on how the government operates may also be addressed. Direct participation also constitutes a big challenge on account of large and growing population, thus, this commitment will also address insufficient mechanisms to promote and enhance citizen participation.

As of this writing, here are the developments:
● On July 2016, President Duterte signed Executive Order No. 2, s. 2016 (EO 2) entitled “Operationalizing in the Executive Branch the People’s Constitutional Right to Information and the State Policies of Full Public Disclosure and Transparency in the Public Service and Providing Guidelines Therefor”.
● On October 2018, the PCOO and the Department of Interior and Local Government (DILG) issued a Joint Memorandum Circular reiterating EO 2 to the local government units. As of date, twenty (20) LGUs have successfully passed their ordinances: Province of Ilocos Norte; Province of Benguet; Province of Surigao Del Norte; Province of Bohol; Province of Masbate; Province of La Union; Province of Occidental, Mindoro;Municipality of Pakil, Laguna; Municipality of Torrijos, Marinduque; Municipality of San Nicolas, Ilocos Norte; Municipality of Infanta, Quezon; Municipality of Sablayan, Occidental Mindoro; Municipality of San Roque, Northern Samar; Municipality of Consolocion, Cebu; Pasig City; Laoag City, Ilocos Norte; Tuguegarao City; Antipolo City, Rizal; Legazpi City, Albay; and, Quezon City.
● Both chambers of Congress in the Philippines have their separate versions of the Freedom of Information Bill.
● In the second quarter of 2019, the FOI-PMO of the PCOO conducted stakeholder consultations with civil society organizations and non-government organizations regarding the draft Admin Version of the FOI Bill.
● On 15 July 2019, the FOI-PMO endorsed the Admin Version of the FOI Bill to the 18th Congress.
● On 21 August 2019, Cabinet Secretary Karlo Alexei Nograles declared the FOI Bill as one of the priority bills, as identified by the Participatory Governance Cluster

What is the commitment?

To have Congress pass a legislation on access to information which will mandate the disclosure of government information—from all three branches to the general public. In the interim, to sustain and further expand the reach of the EO 2, the PCOO will strengthen its efforts on implementing access to information at the local level. The passage of a Freedom of Information Law is crucial for Filipino citizens to exercise their right to access government-held information. It empowers citizen participation in demanding for transparency and accountability from the government. The Law will mandate all branches of the government to disclose all documents as well as the procedures for accessing these documents.

See Action Plan for milestone activities

6. Freedom of Information Law and Local Freedom of Information Program

"To have Congress pass a legislation on access to information which will mandate the disclosure of government information-from all three branches to the general public. In the interim, to sustain and expand the reach of the EO2, the PCOO will strengthen its efforts on implementing access to information at the local level."

Main Objective

"The passage of a Freedom of Information Law is crucial for Filipino citizens to exercise their right to access government-held information. It empowers citizen participation in demanding for transparency and accountability from the government. The Law will mandate all branches of the government to disclose all documents as well as the procedures for accessing these documents."

Milestones

1. Draft an administration version of the FOI Bill and lobby to FOI Champions in the senate and the House of Representatives.
2. Certification of the FOI as an urgent legislative measure by the Office of the President of the inclusion of the FOI as part of the President’s Legislative Agenda.
3. Conduct four (4) public consultation activities to gather feedback on the FOI Bill.
4. Lobby the issuance of fifty (50) local FOI ordinances through a local FOI Acceleration Program.
5. Conduct ten (10) capacity-building/consultation activities for local government units (LGUs) and local government champions.
6. Conduct four (4) sector-specific capacity-building/engagement activities: The Feminist Agenda in FOI; FOI for the LGBT Community; FOI for PWDs; FOI for Ips.
7. Support the organizing of network of CSO advocates for FOI.

Editorial Note: For the complete text of this commitment, along with the updated version submitted in the revised action plan, please see the Philippine action plan at https://www.opengovpartnership.org/documents/philippines-action-plan-2019-2022/.

Commitment analysis

This commitment aims to have the Philippine Congress pass legislation on freedom of information (FOI). The proposed bill is expected to mandate the disclosure of government information to the public from across all branches of government. The FOI bill will be informed by government experience implementing Executive Order (EO) No. 2, s. 2016. The Presidential Communications Operations Office (PCOO) will have the FOI bill certified as an urgent legislative measure by the president’s office and lobby for local FOI ordinances through the FOI Acceleration Program.

The FOI bill was first included in the Philippines’ third NAP but is still pending in Congress. Although CSO advocacy for the FOI bill dates back to the 1990s in the time of then-president Fidel V. Ramos, previous proposals never went beyond committee hearings (second reading) in the House of Representatives and plenary discussions (third reading) in the Senate. ^[71] According to CSO advocates from the Right to Know, Right Now! Coalition, opposition from legislators has been mainly due to concerns regarding privacy and personal information protection. ^[72] During the term of former president Benigno Aquino III, stronger civil society lobbying also failed to achieve sufficient support on the floor due to lack of political commitment. ^[73] In the 16^th Congress, the bill remained pending because of legislators’ demands for a right-of-reply provision, which would require the media to offer equal space or airtime to those who wanted to reply to critical reports. ^[74]

Unlike Commitment 5 in Philippines’ previous action plan, this iteration explicitly includes lobbying FOI champions in the House and Senate under Milestone 1. Furthermore, Milestone 2 calls for the president to establish the FOI Bill as an “urgent legislative measure.” These activities may help to address the legislature's hesitancy to pass the bill. Favorably, President Duterte has two years left to fulfill his campaign promise of a FOI Bill, and a FOI EO has established the infrastructure and awareness needed to make the FOI Bill more feasible. ^[75] Regardless, this commitment still faces some political opposition as well as being overshadowed by the COVID-19 pandemic.

During the third and fourth action plans, the PH-OGP, particularly through the PCOO, lobbied for a FOI law while simultaneously spearheading the practice of FOI by virtue of EO No. 2 s.2016, which established a mechanism for citizens to file public information requests. While not flawless, the EO allows stakeholders to experience a FOI program and its requirements for effective implementation. Ideally, advocates can now leverage these FOI structures to demonstrate to Congress the benefits and importance of a national FOI law. Currently, the EO is limited and excludes the legislative and judicial branches, and local government units due to their local autonomy. ^[76] Moreover, the EO provides no penalty beyond administrative sanction and can be superseded by a future administration. ^[77]

The FOI EO mandates executive branch agencies to develop FOI manuals, designate information officers, and launch an FOI portal (foi.gov.ph). Outside of the executive branch, the PCOO introduced FOI mechanisms to the Commission on Audit, the Office of the Ombudsman, the Civil Service Commission and the judiciary branch through the Supreme Court’s access to court information policy. The PCOO achieved a 100% compliance rate for FOI manuals among national government agencies, 90% among state universities and colleges as well as government-owned or controlled corporations, and 42% among water districts, owing largely to having included this as a requirement for the performance-based bonus for the mentioned agencies. ^[78]

To date, 28 local government units (LGUs) have implemented FOI ordinances. By June 2020, the PCOO reported that FOI requests had increased by 40%, with a total of 31,827 FOI requests filed to the 487 government agencies integrated in the FOI portal. Of those, 45% were processed and 32% denied, while the remaining were still being verified or processed. The Philippine Statistics Authority, the Department of Health, the Department of Education, the Department of Social Welfare and Development, the Department of Labor and Employment, the Department of Transportation, and the Department of Public Works and Highways received the highest number of requests. ^[79]

Civil society emphasizes the EO and manuals are insufficient to realize FOI. Even with the EO and Republic Act 6713 (the Statement of Assets, Liability and Net Worth (SALN) Law), civil society faces increasing difficulties to obtain information on the assets, liability, and net worth of public officials, including the president, senators, and members of congress. The Philippine Center for Investigative Journalism, for instance, finds it more difficult to access SALN documents of public officials. ^[80] Information officers usually cite privacy concerns, invoking RA 10173 (the 2012 Data Privacy Law) to deny information requests by civil society groups. ^[81] As a result, while the PCOO has started to get the FOI bill developed and passed, civil society has yet to form a consensus on which version of the FOI bill to support.

The PCOO submitted the current FOI bill to Congress with three key features. The first mandates that when information requests are lodged with the wrong agency, the receiving agency must refer them rather than reject. The second feature creates an independent commission to oversee FOI implementation and handle appeals. At present, the main powers of the PCOO are monitoring and capacity building, without any provisions for appeals or agency denials. The third feature is to maintain a transparent record-management system. ^[82]

This commitment is relevant to OGP values in terms of access to information and civic participation. If the bill is successfully passed, citizens would have a stronger legal framework to demand proactive information disclosure from the government. Furthermore, the commitment mandates that the legislation process include a public consultation period, which could create opportunities for both civil society groups and citizens to influence how the bill is built and then enforced.

This commitment has transformative potential impact to increase Filipinos’ access to government-held information. Implementation would vastly broaden and strengthen access to information in the Philippines. Currently, only 28 LGUs have FOI ordinances in a country with 1,488 municipalities and 42,046 barangays. ^[83] This commitment would extend these laws across agencies and levels of government. A FOI bill would also permanently enshrine the right to information into law, able to withstand changes in administration. Moreover, information officers would have less ground to deny requests and FOI requests lodged with the wrong agency would still be answered. Furthermore, the FOI Bill would create an independent agency with the ability to process appeals and maintain a transparent record system. Finally, this commitment incorporates several opportunities for public consultation and capacity building, with specific outreach to women, the LGBTQ community, persons with disabilities, and indigenous people. The commitment’s focus on vastly broadening and deepening institutionalization of the FOI regime across government, as well as public consultations, promises to significantly improve citizens’ access to information.

Next Steps

The FOI bill should be seen as important, strategic legislation by both government and nongovernment stakeholders. With 2022 being an election year, 2020 is likely to be the most timely opportunity to push for the bill to be passed, especially considering that the FOI bill was one of President Duterte’s campaign promises. While COVID-19 has forced the government to focus on crisis management, it revealed the critical importance of timely access to information to LGUs and politicians. Finally, PCOO has found that only 6% of FOI requests related to public officials’ personal information. Therefore, implementation of the FOI EO demonstrates that legislators’ privacy fears are disproportionate. These unique circumstances may facilitate the passage of the FOI bill unachieved in previous action plans.