Thursday, August 13, 2009

Freedom of Information: Good Theory, Bad Practice

Journalists are among those usually denied access to public information despite the Constitutional guarantee. Information is either confidential or no longer available, leaving them and more so the people clueless on how their country is being run. (Photo by Claire Delfin)

MANILA, Philippines (Philippine Human Rights Reporting Project / August 13, 2009) - In the Philippines, free access to information is guaranteed by the Constitution – but not yet codified by law: The result is the right to information is very much protected in principle – but not in fact. Despite judicial affirmation of such a right, the lack of a clear and defining law has helped to ensure denial of access to official information remains widespread across the country.

The trend has moreover widened under the administration of President Gloria Macapagal-Arroyo according to Attorney Nepomuceno Malaluan, co-convenor of the Access to Information Network (ATIN).

“While the long-standing problems cut across all previous regimes, this current administration has displayed an alarming swing towards institutional secrecy,” Malaluan says.

For instance, party-list group Akbayan was met with flat denials to access the text of the proposed agreement during the recent negotiation of the controversial Japan-Philippines Economic Partnership Agreement, a bilateral trade and investment treaty between Japan and the Philippines.

The same also happened to the Transparency and Accountability Network (TAN), which was refused access to the report of retired Supreme Court Chief Justice Hilario Davide Jr. on electoral reforms. The report was seen as significant for TAN, which advocates for electoral reforms.

MalacaƱang Palace likewise sought to restrict access to the report of the Independent Commission to Address Media and Activist Killings, but eventually gave in after persistent calls from cause-oriented groups.

Denials of access to various government loan agreements and government contracts has been a consistent practice despite a specific provision in the Bill of Rights that requires information on foreign loans obtained or guaranteed by the government to be made available to the public.

Journalists, too

Journalists are not exempted from routine refusals to block access to information despite the country being perceived as enjoying a relatively free press.

“Every journalist who’s had to look for information from public agencies has a horror story to tell -- or at least a frustrating and infuriating tale which usually includes being given the run around and being told outright that certain public records are ‘confidential,’ or that the particular agency just does not release the information being sought,” writes journalism professor Luis Teodoro in his article on access to information - The Key is in the Exemptions.

In most cases, he says, journalists have to settle with non-traditional and informal approaches in getting the required information.

Ed Lingao of the Philippine Center for Investigative Journalism (PCIJ) agrees and adds: “Parang utang na loob mo pang mabigyan ng impormasyon (It’s like you owe them a debt of gratitude if you’re given the information).”

In the last 10 years, PCIJ has documented 14 major instances when they were met with “flimsy excuses” from 12 national agencies in their effort to secure public information relating to its investigative reporting.

In its article entitled “Multiple requests for access to info meet with flat denials,” PCIJ says these requested data and documents included civil work contracts, contractors of government projects, loan agreements, and the assets and liabilities and net worth (SALNs) of justices of the Supreme Court, generals of the Armed Forces and the political appointees of MalacaƱang and other executive agencies.

Requests for information were made in writing three to five times, and were followed up by as much as 18 to 21 phone calls to the agencies concerned. PCIJ also had to deal with 6 to 9 various officials in the same agencies, and had to wait for 56 days to six months to get any response on its requests.

The situation for those journalists in the provinces is worse. Typically they are referred by local agencies to the national office to obtain public documents.

Things got worse for journalists on February 24, 2006 when President Arroyo issued Presidential Proclamation 1017 which placed the country under a state of emergency amid an alleged plot by “military adventurists.” The order sought to limit the functions of the press to report issues that the government deemed to be precarious to national security.

It went on with a statement from then chairman of the National Telecommunications Commission, Ronald Solis that the government could shut down any television or a radio station during a state of emergency.

President Arroyo lifted the proclamation a week later after reported pressure from economic advisers who maintained the country’s business reputation was suffering.

Red Batario, executive director of the Center for Community Journalism and Development, says information kept secret is a legacy of Marcos martial rule that has lingered on.

Harder for ordinary folks

Ordinary members of the public meanwhile have an even harder time securing their rights to public information than journalists.

“The poor are still chained to the shackles of ignorance. Aside from organized citizens groups and people’s organizations, a large majority of poor Filipinos are unable to claim their rights simply because they don’t know how, and what these are, to begin with,” writes Batario in his article “Our Right to Know.”

Batario adds that information, when democratized and made widely available, allows citizens to actively participate on issues that have serious repercussions for governance.

“The ouster of Joseph Estrada midway through his presidency illustrates the potent power of the information when citizens, shocked by the proceedings of the impeachment trial covered extensively by the press, took the streets to call for his resignation.”

But Batario also lauds certain practices in some places in the Philippines. The Ulat sa Banwaan (Report to the People) of Albay province and Batad in Iloilo are few examples of how active citizen participation has opened up information flows and helped to ensure greater transparency in local government processes.

Information Law

But as these models come in extremely short supply, a Freedom of Information Act becomes necessary, says ATIN.

It adds it is only through an informed press and citizenry that Filipinos can effectively and reasonably participate at all levels of social, political and economic decision-making.

The proposed law was passed in the House of Representatives last year, but it has languished in the Senate.

Among others, House Bill 3732 provides clear, uniform, and speedy procedure for public access to information. It also provides mechanics for the compulsory duty of government agencies to disclose information on government transactions.

The bill enumerates a narrow list of clearly defined and reasonable exceptions. While the general rule is that all information in the hands of government must be accessible to the public, it adds that there are times when it is in the public interest to keep some information confidential – for example ongoing criminal operations.

But the bill also allows an opportunity and right for citizens to override an exception whenever there is greater public interest in the disclosure of information.

It provides clear criminal liabilities for violation of the right to information, and at the same time, adequate and accessible remedies when cases of this nature arise.

And more importantly, the bill spells out numerous mechanisms for the active promotion of openness in government, which is seen as a vital safeguard against rampant corruption that has weighed down the country’s economic performance.

“Secrecy in government has given public officials a wide room for maneuver and greater cover for corruption,” says ATIN’s Malaluan. It is widely reported and accepted that more than 20 per cent of the country’s annual budget is lost to corruption and mismanagement, thanks to an annual budget process that is so lacking in transparency and oversight.

Nevertheless, ATIN remains optimistic that the bill can still be passed before the 14th Congress ends next year. The Senate may be lacklustre and sluggish but it does not, so far, harbour any strong opposition against the bill.

And that is a good sign for advocates to push the bill’s passage much forward. After all, there is no better time -- than now -- to claim that most basic of rights, the right to information.(By Claire Delfin. The author is a television news reporter of GMA Network, Inc. and is a regular contributor of special reports on women, children, education, health, human rights, and the environment to the network’s news website GMANews.TV.)


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