By Raïssa Robles
Here is the analysis I shared in today’s forum on the proposed Freedom of Information law organized by the Asia Society. I compared and contrasted the version of the House of Representatives with that of the Senate. It is not my aim to cast aspersions on the bills. My aim is to help improve it. It is not yet too late.
I have uploaded at the end of this piece the Senate and House versions of the FOI so you can compare them yourself.
UPDATE: Dec. 2, 2014 6:00 AM.
Congressman Barry Gutierrez has joined Cyber Plaza Miranda to defend the House version of the FOI bill. He is one of the main sponsors. His comment is at No. 5. You can ask him questions directly and tell him your reactions to the bill.
First, the good news – both the House and Senate versions will require all government websites to display content in the country’s major languages and not just in English.
Both versions require more comprehensive disclosures of government contracts and bid results. All government contracts amounting to at least P50 million will be uploaded in full on websites.
And now the bad news.
Speaking as a journalist — and I believe journalists are at the forefront of the sectors that will use the freedom of information — let me say this: the proposed bills are worse than I thought when it comes to denying the public and the media access to personal information of government employees and officials.
1.The proposed FOI will not only narrow the existing freedoms of journalists, it will also open them to being jailed for receiving leaked information.
2.If either of these proposed laws had been in effect some years back, then whistle-blower Apolinario “Jun” Lozada would have been arrested; political columnist Jarius Bondoc would have been arrested.
3.Under either of these proposed laws, a journalist can be arrested for “inducing” a government official to give information. The word “induce” is not defined.
4.We already have two existing laws relating to press freedom. Both proposed bills will actually worsen those laws. The FOI bills will restrict, if not take back ,what these laws grant.
I am referring to:
Republic Act No. 6713 or the Code of Conduct and Ethical Standards for public officials and employees; and
Republic Act No. 10173 or the Data Privacy Act of 2012
Republic Act No 6713 or the Code of Conduct and Ethical Standards for Public Officials and employees clearly states that the public cannot be denied access to the Statements of Assets, Liabilities and net Worth (SALNs) of all government personnel. Section 8 states that
“(1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours.
1.Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law.
The House version drastically amends Section 8 of RA 6713 by making it more restrictive. Instead of making available “any and all statements…at reasonable hours,” the House version of the FOI will make SALNs available at all times by having them posted online.
That sounds OK, right? However, the public and the media will be denied access to certain “personal information” in the SALNs that are deemed to “constitute an unwarranted invasion of his or her personal privacy.”
Such information, according to Section 7 of the House version, will be “redacted” or scrubbed from the SALNs released to the public, including the media.
What kind of information can be denied journalists and the public, which RA 6713 currently guarantees?
Section 7 of the House version gives quite a long list of the kinds of information that can be erased from SALNs released to the public. These may include “signatures, addresses, telephone numbers, identification numbers, family members, race or ethnicity, religion, health, education, sexual orientation and similar information.”
The innocuous sounding phrase “similar information” is a catch-all phrase that could include personal real properties, names of corporations owned by the government official and the spouse, and types of vehicles owned.
Now at first I thought that SALNs would not fall under this clause of “unwarranted invasion of…personal privacy.” I thought SALNs were excluded by the addition of the phrase that there is no invasion of privacy if the law requires such information to be publicly available.
But my hopes were dashed with the addition of a sentence saying, in order to prevent an unwarranted invasion of personal privacy, “an agency may redact such information from a record made available to the public.”
To redact means to to scrub away – to blacken out sections of a document. Yet the existing law, RA 6713 allows anyone to examine the complete SALN without erasures, for as long as inspection is done at reasonable hours.
Why do I not want RA 6713 to be watered down?
During the impeachment trial of former Chief Justice Renato Corona, it was those very details that enabled me to find out that Corona had obtained an P11 million cash advance from a long dead corporation called Basa Guidote Enterprises.
In other graft cases, officials have been known to hide their loot in corporations where their under-age children are listed as incorporators.
The devil is really in the details and if you remove those details, officials who are corrupt can more easily masquerade as angels of public service.
Another thing: the mandatory online publication of SALNs does not include governors, mayors and councilors. Why? Why are they exempted? Aren’t they all public elected officials? Using our money and wielding powers we, the public, gave to them?
Thus, I must repeat – the current law on SALNs as governed by RA 6713 should not be watered down.
I am also disturbed by the fact that both the Senate and the House version do not state that personal real properties of government officials need to be publicly disclosed. Using the House version, such disclosure can easily be prevented by classifying it as “similar information.”
To this day, property records in the Philippines are quite opaque even to journalists, even if in 1948 an editor won a Supreme Court ruling that established media’s right to access real property records.
Yes, you might be surprised to know this: there is a Supreme Court ruling that says the media — specifically newspapers — have the right to access real property records.
It came about this way. In the landmark case between Manila Post editor Abelardo Subido and Justice Secretary Roman Ozaeta, the Supreme Court ruled that the Register of Deeds of Manila had no right to bar Subido from examining records of lands alleged to have been sold to non-Filipinos.
Notice here that we are not talking of land records of silting politicians but land records of private individuals.
Explaining its verdict, the court said:
“Newspapers have a better-established right of access to records of titles by reason of their relations to the public than abstractors or insurers of title. Whether by design or otherwise, newspapers perform a mission which does not enter into the calculation of the business of abstracting titles conducted purely for private gain. Newspapers publish information for the benefit of the public…It is through the medium of newspapers that the public is informed of how public servants conduct their business.”
Subido obtained this verdict by filing a mandamus with the Supreme Court.
I wonder if journalists can collectively filed a mandamus in court to compel the House of Representatives to open SALNs for public inspection “at reasonable hours” as provided by RA 6713, which in turn is the enabling law for Section 17 of the 1987 Constitution.
The House version of the FOI threatens to erase this legal victory of Subido.
In this regard, the Senate version is the exact opposite of the House version.
While the House version bans public disclosure of personal information even of government personnel, the Senate version limits such ban to disclosures of information on those who are not government officials. As for those government officials who have reverted to private status, information during their period of government service can be disclosed under the Senate version.
Both the Senate and House versions amend another existing law to the detriment of journalists and writers.
This is RA 10173 or the Data Privacy Act of 2012. It contains a special provision in Section 4 that specifically allows use of “Personal information processed for journalistic, artistic, literary or research purposes.”
The House version completely bans the use of “personal information” of private persons “of a natural person, whether from the public or the private sector” because the House considers “its disclosure would constitute an unwarranted invasion of his or her personal privacy.”
The Senate version imposes a ban on disclosure of “personal information” of private individuals, thus amending the Data Privacy Act’s exemption that was given to journalists and writers. I beseech the lawmakers to keep this exemption in the FOI law.
There’s more: Section 22 of the Senate version will discourage future whistle blowers in government service and result in the jailing of journalists if they “knowingly directed, induced or caused” the leak.
For its part the House version (in Section 15) proposes a similar penalty against journalists who induce or cause leaks.
In the years I have been working as a journalist the guideline I have always followed is that leaked information relating to national security, diplomacy, ongoing court trials and police operations should be handled with care. But all other information can be used once verified and as many sources from all sides of the issue are interviewed.
The proposed bills also propose to restrict access to corporate information.
Today, the Securities and Exchange Commission is one of the most transparent agencies when it comes to sharing information on corporations. Everything that corporations file at the SEC are made available online.
However, the Senate and House versions both contain Section 7 (g) which bars disclosure of “financial information…from a natural or juridical person other than the requesting party, whenever the revelation thereof would seriously prejudice the interests of such natural or juridical person in trade, industrial, financial or commercial competition.”
This is very worrying. Does this mean that a journalist writing about corporations will be denied access to financial statements of corporations on the brink of bankruptcy? This has to be clarified or better yet struck down because it is a backward move.
The same Section 7 (g) talks about non-disclosure of “trade secrets.” I wonder if inquiring about drug patents that are about to expire will be covered by this. Drugs are very expensive locally and one way to bring downs costs is to locally manufacture those drugs for which patents have expired. Foreign drug manufacturers beat the system by tweaking the formulation just a little bit.
Another provision that worries me is Section 7 (J) that is the same in both versions. It bars government agencies from disclosing information that would “likely frustrate the effective implementation of a proposed official action.”
If this was in effect in 2007, Apolinario Jun Lozada would have been sued for disclosing the anomalous NBN-ZTE deal with China. So would Jarius Bondoc for writing about the leaks in Philippine Star. The disclosures and leaks scuttled the NBN-ZTE altogether.
Personally, as a journalist, I have SEVEN minimum demands for an FOI. These are:
One – The online publication of SALNs of the President, the Vice-President, the cabinet secretaries and undersecretaries, heads of government-owned and controlled corporations (GOCCs), the Supreme Court justices, all members of both the House and the Senate, commissioners of the various independent commissions, all senior military officials with star rank, all senior police officers starting with the rank of police chief superintendent, all governors, city and town mayors and all members of the city, town and provincial councils.
Two – The online publication of the ABC costing of all bids amounting to at least 50 million pesos. That means, the agency bid estimate, the actual bids and the actual construction cost. As for GOCCs, the posting online of year-end financial statements similar to those required by the Philippine Stock Exchange.
Three – Access to all real property records for journalists in print, broadcasting and online and members of private anti-corruption watchdog groups.
Four – The online publication of all ordinances and other acts of all city, town and provincial councils. It’s ridiculous, for example, that in order for you to read the Zoning Code of Quezon City you have to go all the way to the archive section located in the top-most floor and leave your ID so you can xerox the only copy of the Zoning Code on the first floor. Local officials do a lot of “magic” with the zoning code so that one day you may just wake up and find, for instance, a crematorium being built in your residential neighborhood because the city council passed a special law exempting a businessman from the zoning restrictions in exchange for burying a certain number of constituents free of charge. I wrote about this and no less than the House Speaker Feliciano Belmonte who was then the Quezon City mayor stopped the construction of the crematorium. But his successor let it through.
Another example, do you know that Makati City has an ordinance that bars people from drinking beer while walking in the streets even in the so-called tourist areas? Do you see signs in Makati warning people about it? I know this because several HK journalists who came to Manila to cover the post-Luneta bus hostage massacre were on the brink of being brought to a Makati City police station because one of them happened to be drinking beer while walking. There was no sign against it.
Five – No restrictions and revisions on already existing laws relating to freedom of information.
Six – Archiving of already available information online. I noticed that every change of administration erases the information on the previous administration.
Seven – A system of declassifying “Secret”, “Top Secret” and “Confidential” state documents particularly referring to security matters. This is the only way our historians, political and social scientists can write our troubled history as a nation. As a writer, I was once privileged to read and write about “Top Secret” presidential papers given to the late President Elpidio Quirino when I wrote his biography, which I turned into a study of state corruption.
Everything else outside of these seven minimum demands can be left to enterprise reporting.
HERE IS THE SENATE VERSION
HERE IS THE HOUSE VERSION