No doubt the difficult and protracted process of FOI legislation owed in large part to the institutional resistance to a measure that will contribute significantly to democratizing and making accountable governmental power. Such institutional resistance is best exemplified by the brazen manner by which the House leadership of the 14th Congress killed the FOI bill.
In this context we again welcome the endorsement by the President and acknowledge the efforts done by reformers in the Executive like Sec. Butch Abad and Usec. Manolo Quezon.
In its latest form, the FOI bill if passed will mean substantial gains to all citizens.
First, it will impose a uniform and speedy procedure for people’s access to information, thereby removing the wide room for administrative avoidance of disclosing information under current laws.
Second, it frees the broadest amount of non-sensitive information to easy and effective access for the everyday needs of citizens in availing of government services.
Third, for information that may be regarded as sensitive, and for which government presently invokes wide discretion in withholding, the bill now lays down clear limits on exceptions. In addition to defining the limits of exceptions, the bill reaffirms existing and adds new safeguards against abuse of exceptions. The government has the burden of proving an exception, which must be strictly construed, and may not be used to cover-up crime, wrongdoing, graft, or corruption.
Fourth, it identifies a list of documents of high public interest that are required to be disclosed without need of request, including SALNs that have otherwise been very difficult to access.
Fifth, it introduces basic standards on government’s record keeping and introduces various mechanisms to facilitate easy access of information.
Sixth, it introduces a number of better remedies to denial of access and violation of our right to information, including the imposition of substantial administrative and criminal liability.
All these will allow all citizens, not just the media, to effectively exercise their right to information:
To be sure, there will be continuing challenges that will have to be fought if the bill in its present form is passed. One of these will be the continuing struggle against the abuse of the broadening of the national security exception under the Malacañang amendments.
On this matter we argue that even in the present version we have achieved significant gains.
For one, we have already mentioned the safeguards that apply to all exceptions.
For another, we have secured the repeal of Memorandum Circular 78, a 14 August 1964 guideline currently still in use that provides for the classification of sensitive documents into top secret, secret, confidential, and restricted.
MC 78 is overbroad and grants authority to classify to almost all government officials. Under the memorandum, heads of departments have the authority to classify information as top secret or secret, which authority may be delegated. For confidential and restricted matter, any officer is authorized to make such classifications. The classes of information that may be classified under MC 78 is practically unlimited. Top secret matter may include “major governmental projects”; confidential matter need not involve matters of national security, and may include “such matters as would cause administrative embarrassment”; and restricted matter can include matters as vaguely defined as “requiring special protection”.
What is left is the task of obtaining a reasonable definition and scope of national security when the President issues the executive order providing the guidelines for classification as provided in Section 6 (a) of the bill.
The alternative offered by some of our allies is to force a clear definition of national security during the legislative process. We fear, however, that forcing a definition at this stage will only hold the entire bill hostage to a difficult debate, or invite a Presidential veto should the definition not be acceptable to the executive.
In sum, we accept the executive’s proposed amendments to the bill. However, we encourage Congress to still consider non-contentious refinements and improvements.
The important thing, however, is to facilitate the immediate passage of the long-overdue FOI law.
In this regard we appreciate the firm commitment of Senator Honasan to submit a committee report to the plenary at the soonest, a commitment he made even prior to the President’s endorsement. We challenge the House leadership to now commit to the same.