The Aquino-endorsed FOI bill has been labeled as the “Malacañang version” but, in fact, it derives from the historical and cumulative efforts that began with the strengthened guarantees on transparency and the people’s right to information in the 1987 Constitution.
The present version finds its roots in various FOI bills filed post-1987 but the bill with deep collaboration from public interest organizations was first filed in the 12th Congress as House Bill 5784, sponsored by Representatives Joel Villanueva, Del De Guzman, Nereus Acosta, Loretta Ann Rosales, and Mario Aguja. A counterpart Senate Bill 2508 was filed by Senator Francis Pangilinan. The bills underwent refinements and considered inputs from various stakeholders, but failed to advance considerably in both the 12th and the 13th Congresses.
The biggest advance on the measure came in the 14th Congress as the campaign strengthened, consensus deepened, and commitment by champions in both Houses progressed. Under the leadership of Rep. Erin Tañada and then House Committee on Public Information chairman Rep. Benny Abante (with strong support from then Representatives Joel Villanueva, Del De Guzman, Risa Hontiveros, Walden Bello, and Satur Ocampo), the FOI bill hurdled third reading at the House on May 12, 2008 even before the close of the first regular session of the 14th Congress.
Senator Alan Peter Cayetano, as chairman of the Senate Committee on Public Information in the 14th Congress, then decisively shepherded the bill through the committee and all the way to passage on third reading, in partnership with Senator Juan Miguel Zubiri as majority leader, and with the full backing of Senate President Juan Ponce Enrile.
Unfortunately, the bill would not become law as the House leadership chose to kill it at its final legislative stage by refusing to ratify the bicameral conference committee report. It is the failed bicameral conference committee report in the 14th Congress that has been refiled by the champions of the bill in the House and the Senate in the current 15th Congress.
Securing President Aquino’s endorsement would be, we had hoped, the culminating episode to the FOI legislation. Early on in his term our optimism for immediate passage of the law was dampened by the administration’s mixed signals on the FOI, with the President expressing a number of concerns.
In March 2011, the President he created a study group to address his concerns. It adopted as template the proposed consolidated version drafted by Rep Erin Tañada as technical working group chairman for the House Committee on Public Information.
Based on our understanding, the study group worked to address the following key issues:
The President’s concern that the latitude to afford free and frank deliberation of decisions with his closest advisers is not protected; and
The bureaucracy’s concern that the penalties imposed by the proposed legislation are unduly harsh. In addition, the Study Group also looked at ways to further improve the bill, from the executive’s perspective.
We note that the Study Group has produced at least three amended versions. The first version it released embodied amendments that FOI advocates found unacceptable, in particular the wide expansion of exceptions, the removal of criminal liability, and the introduction of an Information Commission under the Office of the President (and hence, not independent), in place of the Office of the Ombudsman as an appellate body.
In consultation with and through the efforts of Rep. Erin Tañada, there have been adjustments in the Study Group amendments that reflected a better balancing between the President’s concerns and the protection of the people’s right to information.
In particular, while the insertion of the words “national security” in the exceptions was non-negotiable for the Study Group, it adopted the advocates’ suggestion that the safeguard provisions be strengthened.
In addition to reaffirming that the burden of proving an exception rests on government, the amendments provided that the exceptions are to be strictly construed, and that the exceptions are not used to cover-up crime, wrongdoing, graft, or corruption.
It confined the deliberative process privilege to the chief executive instead of making it available to all officials as it initially drafted, and provided limitations on its invocation. It removed all other new exceptions introduced.
It made the Information Commission independent by removing it from the Office of the President and by introducing independence mechanisms, and ultimately withdrew its proposal for an Information Commission altogether. It retained certain acts as criminal, while imposing high administrative penalties for those categorized as administrative offenses.
Finally, the Study Group on its own introduced a number of improvements to the bill, most significant of which is the inclusion of the Statements of Assets, Liabilities, and Net Worth(SALN) in the list of important documents that should be released to the public, without need of request.