Addressing the Concerns on the Proposed

Freedom of Information Act

by

Rep. Lorenzo “Erin” R. Tañada III

Deputy Speaker, House of Representatives and
Chairman, TWG on FOI Bills, House Committee on Public Information

27 January 2011

HOUSE OF REPRESENTATIVES, OFFICE OF THE DEPUTY SPEAKER LORENZO R. TAÑADA III, 3/F MAIN BUILDING,
BATASANG PAMBANSA COMPLEX, QUEZON CITY. • Tel. Nos: +632 9315660 or +632 9315001 loc. 7454 • mobile no: +63 9228160008 •
email address:tanada.erin@gmail.com • website:www.erintanada.com
 Contents

I. Background on the Proposed Freedom of Information Act 2

A. The Bicameral Conference Report of the 14th 2

Congress 2
B. Status of the Measure in the 15th Congress 3
C. Wide Support for the Measure
5
II. The Concerns on the FOI Bill
7
III. Addressing the Concerns on the FOI Bill
7
A. Safeguarding national security and foreign relations,
privacy of citizens, trade secrets, and impartiality of verdicts and
administration of justice 8
B. Access to information currently being used for
decision-making or project management 10
C. Access to transcripts and minutes of official
meetings may diminish candid and open discussions by public 12
officers 12
D. Include a Deliberative Process Exception? 14
E. Administrative Burden/ Paralysis of government
operations 17
F. Non-Retroactivity Provision

IV. Proposed Way Forward

2
I. Background on the Proposed Freedom of Information Act

A. The Bicameral Conference Report of the 14th Congress

After years of Congressional inaction, the proposed Freedom of Information Act

advanced significantly and almost reached passage in the 14th Congress. As a principal
proponent of the bill, I attest to the thorough legislative work that went into the crafting
of the bicameral conference report.

At the House of Representatives, the Committee on Public Information conducted

hearings and constituted a technical working group for the consolidation of the measures.
We heard the comments and suggestions by representatives of the Executive branch as
well as by nongovernment groups. The House plenary unanimously approved the
Committee Report as House Bill 3732 on second and third readings before the close of
the first regular session.

At the Senate, our counterpart committee then chaired by Senator Alan Peter
Cayetano adopted the version that was passed in the House as starting point. It asked
government representatives for further concerns, and the inputs by the Civil Service
Commission, the Department of Justice, and the Office of the Ombudsman, resulted in
the removal of the provision on strict civil liability, and further refinements of the
sections on criminal and administrative penalties as well as remedies. Committee
members also introduced further substantive and procedural refinements, such as the
introduction of a Freedom of Information Manual as an implementing tool.

At the Senate plenary, the committee report went through close constitutional
scrutiny by Senators Miriam Defensor Santiago and Joker Arroyo. These resulted in
plenary amendments on the provisions on exceptions, as well as refinements on
provisions that apply to the judiciary. Senator Francis Escudero also introduced
amendments through the committee to further strengthen the record-keeping provisions
of the bill.

Finally, both Houses had the opportunity for a final review of the bills through the
bicameral conference, which unanimously approved the bicam version.

Unfortunately, while the Senate ratified the bicameral conference report, the
House of Representatives failed to do the same. The measure will have to go through the
legislative mill again in the present Congress.

B. Status of the Measure in the 15th Congress

In recognition of the legislative history of the bicameral conference version, most

of the bills filed in both Senate and House of Representatives in the present Congress
either adopt the bicam version in full, or are close variants.

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 In the Senate, of the twelve bills, five adopt in full the bicam version. These are
Senate Bills 158, 2086, 2189, 2283 and 2354 by Senators Guingona, Escudero, Honasan
(adding only a provision on appropriation), Santiago, and Cayetano (Alan Peter).
Another five bills adopt versions from earlier stages of the legislative process. Senate
Bills 25, 149, 162, and 1440 by Senators Revilla, Pangilinan, Zubiri and Legarda,
respectively, adopt the Senate Committee Report version. Senate Bill 11 by Senator
Trillanes adopts the House version.

In the House of Representatives, of the 12 bills, four adopt in full the bicam
version (authored by myself and Reps. Biazon, Bello and Bag-ao, and Escudero). Very
similar to these bills are those filed by Reps. Teodoro, Angara, Del Mar, and Castelo.
The Bill of Rep. Apostol introduces further improvements. The only bills that introduce
new and contentious provisions are those by Rep Karlo Nograles, which inserts to the
bicam version a provision on “non-retroactivity”, and the bill by Rep. Romualdo that
introduces new exceptions and expands coverage of the bill to the private sector.

The Senate and House Committees on Public Information have already conducted
one public hearing each on the measures. The Senate held its first hearing last 14 October
2010. The Lower House conducted its first hearing last 23 November 2010, and
reappointed me as chairman of the committee’s technical working group.

C. Wide Support for the Measure

The proposed Freedom of Information Acts seeks to supplement the people’s

right to information enshrined in Section 7 of the Bill of Rights. This constitutional
provision states:

“The right of the people to information on matters of public concern

shall be recognized. Access to official records, and to documents and
papers pertaining to official acts, transactions or decisions, as well as to
government research data used as basis for policy development, shall be
afforded the citizen, subject to limitations as may be provided by law.”

The Supreme Court has consistently ruled that our countrymen can enforce this
right without need of legislation. However, experience has shown that the right has been
very difficult to operationalize in practice. As noted in the recent hearing by one of my
senior colleagues, Rep. Sergio Apostol, a law is needed to plug the many legal loopholes
that have prevented the institutionalization of the right to information.

To be more specific, the proposed Freedom of Information Act provides the

narrow specificity that further defines the categories of information identified by the
Supreme Court as reasonable areas for confidentiality. Once the bill is enacted,
government agencies will be appropriately guided in determining what information
should be disclosed, and what may be withheld from the public. Without the law, the
broad categories of areas of secrecy have allowed government officials a wide latitude of
agency discretion in dealing with requests which makes the right hollow.

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 The proposed legislation lays down a uniform procedure for handling requests for
information. At present, the rudimentary procedure provided by Republic Act 6713
(Code of Conduct and Ethical Standards for Public Officials and Employees) is grossly
inadequate, and allows government agencies to frustrate requests with endless referrals
and delays.

The bill provides penal sanctions for very specific acts that constitute violations of
the people’s right to information. This will provide a deterring factor against public
officials not taking the people’s right to information seriously.

Also very important, the bill gives guidelines for the effective implementation of
the state policy of full public disclosure of government transactions involving public
interest provided by Article II, Section 28 of the Constitution. It enumerates specific
government transactions that government needs to make public without need of demand
of anyone, and provides how this will be done.

There is broad consensus that the bill is needed to institutionalize the people’s
right to information in our government. Thus the bill enjoys wide support from most
sectors of society from both government and non-government sides. In our last hearing,
representatives from most government agencies declared their support for the measure.
From the non-government side, the Right to Know. Right Now! Coalition is leading the
advocacy that counts as constituency a cross-section of society, including non-
government organizations, media organizations, business and labor groups, among
others. The Integrated Bar of the Philippines also gave its full support to the measure.

5
II. The Concerns on the FOI Bill

In the position submitted by Sec. Hermino Coloma, Jr. at the 14 October 2010
hearing of the Senate Committee on Public Information, he emphasized “two vital
concerns”, which we quote:

“First, there must be adequate safeguards on the release of information that

involves, among others: national security and foreign relations, the privacy of citizens,
the protection of trade secrets, the impartiality of verdicts and administration of justice.

Second, there is need to look into the possible impact on the transaction
volume of some agencies which, given limited resources and specified timeframe
within which to act, might be deluged with simultaneous requests”

In the longer position paper submitted by Secretary Coloma to the House

Committee on Public Information, he raised the following additional concerns, which we
quote:

“1. Access to information currently being used for decision-making or

project management; Frequency of access to information currently being used.
Government agencies are entrusted with specific functions in furtherance of certain
public objectives. Normally included in these functions are policy formulation or
program management where information management is vital. The smooth exercise of
these functions, where regularity of actions of public officers is presumed, may be put
at risk if the government agencies are subjected to requests for information at every
step of the way. Second-guessing the decisions of our public officers will undermine
their effectiveness. Therefore, it is important to determine if information that is
currently being used by government agencies for decision-making or project
management will be made available already or if a reasonable lapse of time will be
allowed before this is done, similar to declassification of documents by the military.
The intention is not to hide information nor to limit frequency of access but only to
ensure that government operations are not hampered.

2. Access to transcripts and minutes of official meetings may diminish

candid and open discussions by public officers. Relatedly, open access to minutes or
transcripts of official meetings may diminish candid and open discussions that
characterize such meetings. Off-the-cuff remarks, characterizations, or outbursts that
are recorded when important topics are tackled during these meetings may subject
public officers or institutions to embarrassment or ridicule, even if this is not the intent
of the person requesting for information. This is the reason why public or private
institutions only provide official reports to outside parties, leaving out information that
can only distract said outside parties. This is a salient point that needs to be addressed
by the proposed bills.”

During the House Committee Hearing on 23 November 2010, we heard Atty. Jose
A. Fabia, Director General of the Philippine Information Agency, express concerns that
the bill’s list of transactions that government will be required to disclose without need of
demand might be unduly cumbersome, and suggested that certain thresholds be
introduced to reduce its coverage.

6
 In addition to the above concerns, I have also heard various feedback that there
are apprehensions in Malacañang that the proposed law might be used by enemies of the
state to injure state security.

Finally, in the 8 December 2010 episode of the television program “Congress in

Action” hosted by Mr. Freddie Abando, Rep. Karlo Nograles echoed the concern over
administrative burden as one of the reasons for the non-retroactivity provision in his bill
(HB No. 59), which states:

Sec. 18. Non-Retroactive Effect. – All information to be released by

government agencies shall only cover matters of public concern and/or
transactions involving public interest which have been effected after the
passage of this Act and during the incumbency of the President of the
Philippines at the time the request for information has been made, unless
otherwise provided by law or subject to the issuance of subpoena duces
tecum by the Supreme Court or all lower courts, or by Congress, as the
case may be.”

This proposed provision radically narrows the coverage of available information

by excluding information relating to matters or transaction that took place before the
passage of the act. In addition, information on matters or transaction occurring after the
passage of the Act will only be available during the term of the President under which the
matter or transaction took place.

Related to the same provision, there were comments during the House Committee
hearing suggesting that the said non-retroactivity provision is intended to avoid a
violation by the proposed Act of the Constitutional prohibition against ex post facto laws.

7
III. Addressing the Concerns on the Proposed FOI Law

A. Safeguarding national security and foreign relations, privacy of citizens,

trade secrets, and impartiality of verdicts and administration of justice

There is recognition by all proponents of the bill, and by the right to information
advocates themselves, that the people’s right to information is not absolute. If we look at
the bicam version closely, it lays down a list of exceptions to public access, guided by the
classes of information that the Supreme Court has identified as areas for reasonable
limitation of the right, including national security, foreign affairs, law enforcement, trade
secrets, personal privacy, and the administration of justice. Thus, the general concern of
Secretary Coloma over having “adequate safeguards” is already addressed by most of the
pending measures. What the measures do as well is to define the areas of exception in a
manner that also safeguards against arbitrary and overbroad interpretation by
government.

National Security and Foreign Affairs. Section 7 (a) of the bicam version allows
the exemption from public scrutiny national defense information the disclosure of which
will cause grave damage to the internal and external defense of the State. It also exempts
foreign affairs when its revelation would unduly weaken the negotiating position of the
government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the
diplomatic relations of the Philippines.

One possible related worry by the executive is that the bill expressly repeals
Memorandum Circular No. 78 dated 14 August 1964, which provides for the
classification of sensitive documents into top secret, secret, confidential, and restricted.

The reason for the repeal of MC 78 is that it is overbroad and grants authority to
classify to almost all government officials. More likely this is because the circular came
long before the recognition of the right to information in the constitution. 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”. In other words, classification is a matter of discretion, which renders
worthless the right to information.

But recognizing the highly sensitive nature of national security and foreign
affairs, the bill recognizes the power of the President to promulgate a new classification
guideline covering information relating to national defense and foreign affairs, with
safeguards against overclassification.

8
 Not leaving national security to chance, Section 7 (f) recognizes Constitutional
exceptions other than those identified in the bill. Under this general exception, the
President retains the prerogative to invoke national security as a constitutionally based
exception.

Law enforcement and military operations. Section 7 (b) allows the exception of
defense and law enforcement information when its revelation would render a legitimate
military or law enforcement operation ineffective, unduly compromise the prevention,
detection or suppression of a criminal activity, or endanger the life or physical safety of
confidential or protected sources or witnesses, law enforcement and military personnel or
their immediate families.

Personal Privacy. Section 7 (c) exempts personal information of a natural person

if its disclosure would constitute a clearly unwarranted invasion of his or her personal
privacy, unless it forms part of a public record, or the person is or was an official of a
government agency and the information relates to his or her public function, or the person
has consented to the disclosure of the information.

Trade secrets. Section 7 (d) protects trade, industrial, financial or commercial

secrets obtained in confidence or filed with a government agency. In addition to this
provision, trade secrets are also protected in other statutes.

Administration of justice. Section 7 (e) exempts information privileged from

production in legal proceedings by law or by the Rules of Court. Also exempted are
drafts of decisions by any executive, administrative, judicial or quasi-judicial body in the
exercise of their adjudicatory functions whenever the revelation would reasonably tend to
impair the impartiality of verdicts, or otherwise obstruct the administration of justice.

B. Access to information currently being used for decision-making or

project management

Secretary Coloma asks whether information that is currently being used by

government agencies for decision-making or project management will be made readily
available or if a reasonable lapse of time will be allowed before this is done. In favoring
the latter, he argues that the smooth exercise of government functions “where regularity
of actions of public officers is presumed, may be put at risk if the government agencies
are subjected to requests for information at every step of the way.”

Secretary Coloma misses a very important public goal of the people’s right to
information. The right is not only meant to secure accountability of public officials for
completed acts; it is also meant to secure for the public the opportunity to effectively
exercise their democratic right of participation in decision-making. As stated by the
Supreme Court in the case of Legaspi vs Civil Service Commission (GR No. L-72119,
May 29, 1987):

9
 “The incorporation in the Constitution of a guarantee of access to
information of public concern is a recognition of the essentiality of the
free flow of ideas and information in a democracy (Baldoza v. Dimaano,
Adm. Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same
way that free discussion enables members of society to cope with the
exigencies of their time (Thornhill vs. Alabama, 310 U.S. 88,102
[1939]), access to information of general interest aids the people in
democratic decision-making (87 Harvard Law Review 1505 [1974]) by
giving them a better perspective of the vital issues confronting the
nation.” (emphasis supplied)

The twin objectives of democratic participation and accountable government is

emphasized in the case of Valmonte vs Belomonte (GR No. 74930, February 13, 1989):

“The right to information goes hand-in-hand with the constitutional

policies of full public disclosure and honesty in the public service. It is
meant to enhance the widening role of the citizenry in governmental
decision-making as well as in checking abuse in government.”
(emphasis supplied)

If Congress will exclude from the coverage of law information that is currently
being used for decision-making or project management, we will deny the public the
ability to make informed inputs, feedback and comments in government decision-making
and project management. Contrary to making governance effective, this will in fact
impair the responsiveness of government action, as observed by the Supreme Court in the
same case of Valmonte vs Belmonte:

“It is in the interest of the State that the channel for free political
discussion be maintained to the end that the government may perceive
and be responsive to the people’s will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus able to
formulate its will intelligently. Only when the participants in the
discussion are aware of the issues and have access to information
relating thereto can such bear fruit.”

Thus, it will be difficult to accommodate the restriction of the coverage of the

right as proposed by Secretary Coloma. A comparable conclusion may be gleaned from
the Supreme Court’s discussion of public availability of information relating to contracts
being currently negotiated in the case of Chavez vs PEA (GR No. 133250, July 9, 2002):

“Requiring a consummated contract will keep the public in the dark until
the contract, which may be grossly disadvantageous to the government
or even illegal, becomes a fait accompli. This negates the State policy of
full transparency on matters of public concern, a situation which the
framers of the Constitution could not have intended. Such a requirement
will prevent the citizenry from participating in the public discussion of

10
 any proposed contract, effectively truncating a basic right enshrined in
the Bill of Rights. We can allow neither an emasculation of a
constitutional right, nor a retreat by the State of its avowed “policy of
full disclosure of all its transactions involving public interest.”

C. Access to transcripts and minutes of official meetings may diminish

candid and open discussions by public officers

Another class of documents that Secretary Coloma proposes to exclude from

public access is the transcripts and minutes of official meetings. His rationale for
excluding such information is that making these available may diminish candid and open
discussion by public officers. Also, such documents may contain information that could
subject public officers or institutions to embarrassment or ridicule if made public.

Minutes of meetings are relevant and material sources of information not only for
government but for the public as well. They contribute to the proper understanding of
agency decisions and actions. In fact, the constitutional guarantee clearly covers it in
requiring access to “documents and papers pertaining to official acts, transactions or
decisions”.

The Supreme Court amplified this in the case of Chavez vs PEA:

“The right covers three categories of information which are “matters of

public concern,” namely: (1) official records; (2) documents and papers
pertaining to official acts, transactions and decisions; and (3)
government research data used in formulating policies. The first
category refers to any document that is part of the public records in the
custody of government agencies or officials. The second category refers
to documents and papers recording, evidencing, establishing,
confirming, supporting, justifying or explaining official acts,
transactions or decisions of government agencies or officials. The third
category refers to research data, whether raw, collated or processed,
owned by the government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the

JVA includes evaluation reports, recommendations, legal and expert
opinions, minutes of meetings, terms of reference and other documents
attached to such reports or minutes, all relating to the JVA. x x x”
(emphasis supplied)

In the structure of Freedom of Information under the Philippine Constitution, the

intent is really to afford as broad public access as possible, recognizing only limitations
that are reasonable and which serve overriding public goals. The Supreme Court, in the
case of Legaspi vs Civil Service Commission states:

11
 “What may be provided for by the legislature are reasonable conditions
and limitations upon the access to be afforded which must, of necessity, be
consistent with the declared State policy of full public disclosure of all
transactions involving public interest.”

In certain instances, there could in fact be an overriding public interest in

affording candid and open discussion by public officials, but this has by far been reserved
in jurisprudence to the highest officials of the country and the most sensitive of issues.

As to providing protection to candid and open discussion by the highest officials

on the most sensitive of issues, the proposed Freedom of Information Act already deals
with this matter. Section 7 (f) of the exceptions, in recognizing Constitutional exceptions
to public access, allows the invocation of executive privilege on the part of the Executive,
executive sessions on the part of Congress, and judicial deliberations on the part of the
Supreme Court.

On the scope of executive privilege, the pronouncement of the Supreme Court in

Senate vs Ermita is relevant:

Executive privilege, whether asserted against Congress, the courts, or the

public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept,
a claim thereof may be valid or not depending on the ground invoked to
justify it and the context in which it is made. Noticeably absent is any
recognition that executive officials are exempt from the duty to disclose
information by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that the presumption
inclines heavily against executive secrecy and in favor of disclosure.
(emphasis supplied)

On the concern over potential embarrassment of public officials or the institution

arising from disclosure of minutes, I make the following observations. First, the
embarrassment really pertains to officials rather than institutions. Second, weighed
against the right of people to information, the embarrassment of officials deserves less
protection. As public officials, embarrassment forms part of accountability, and the best
protection is not withholding of information, but responsibility and circumspection. Such
is one of the core reasons for the guarantee, as eloquently put by Senate President Juan
Ponce Enrile in explaining the Senate’s support for the measure in the 14th Congress in
one media interview:

“I think that if we do this, our desire for a more straightforward and honest
government will be accomplished, because then people will have to be
very, very careful and circumspect in performing their work in
government, in transacting their official business, and in spending the
money of the people.”

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 D. Include a Deliberative Process Exception?

On the other hand, we can surmise that the essence of the concern of Secretary
Coloma over the disclosure of minutes of meetings is really in calling for the protection
of the decision-making process of government agencies. In the United States, this is
called the “deliberative process privilege” and recognized under Exception 5 of the US
Freedom of Information Act. The policy objective is to encourage free and candid
discussions on matters of policy within government.

In the Philippines the Supreme Court has not had an occasion yet to deal with the
recognition of deliberative process per se under the constitutional guarantee. It was,
however, regarded by the court as “closely related” to the “presidential communications
privilege” recognized in the case of Neri vs Senate. It was also held as bearing a “close
resemblance” to the diplomatic negotiations privilege in the case of Akbayan vs Aquino (G.R.
No. 170516, July 16, 2008). The “close relation” and “close resemblance” is based on the
commonality in part of the rationale, which, the court states, is “the ‘obvious realization that
officials will not communicate candidly among themselves if each remark is a potential item of
discovery and front page news,’ the objective of the privilege being to enhance the quality of
agency decisions.”

It now falls on the legislature whether we will recognize the deliberative process
privilege as a distinct exception, pursuant to its power to legislate limitations on the right
to information, as provided in the constitutional guarantee. I therefore would like to open
this matter to comments from the various stakeholders. Should there be consensus to
include this in the exceptions, it goes without saying that it should be so carefully framed
that it will not be open to abuse by government.

E. Administrative Burden/ Paralysis of government operations

Secretary Coloma expresses fear over “the possible impact on the transaction
volume of some agencies which, given limited resources and specified timeframe within
which to act, might be deluged with simultaneous requests”.

We are not without any reference in allaying fears of undue administrative burden
or government paralysis arising from gratuitous requests for information. More than
ninety countries have already adopted freedom of information legislation, and we have
not heard of any of their bureaucracies grinding to a halt as a result of such legislation.

We can expect most requests to still come from existing information users, the
difference being that these will now be handled by government under uniform and
definite standards and guidelines. In other words, they will now fully enjoy their right to
information.

In fact, rather than shunning and fearing information requests, the challenge after
the passage of this act will be more to encourage greater use of it by the public to foster
better informed and responsible democratic processes.

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 To be sure, we cannot discount an initial increase in requests following the
passage of the act, but it will come nowhere near the undue administrative burden and
bureaucratic paralysis that Secretary Coloma fears. As a case example, we can look at the
volume of requests as monitored by the United Kingdom since its Freedom of
Information Act came into force in 2005. While there was a surge in the first quarter of
implementation, this immediately tapered off. Requests with the Department of State
showed an increase in 2009, but still below the initial surge, but the volume has been
stable for monitored bodies other than the Department of State. I reproduce the relevant
figure below. (See UK Ministry of Justice, Freedom of Information Act 2000: 2009
Annual Statistics on implementation in central government, 29 April 2010, available at
http://www.justice.gov.uk/publications/docs/foi-statistics-report-2009.pdf)

Still, some provisions of the bill can be revisited to the end that the anticipated
administrative burden is further eased. This includes reviewing the list of information
required to be mandatorily/automatically disclosed without need of request provided in
Section 14 of the bicam version, as well as the period of complying with a request as
provided in Section 9.

F. Non-Retroactivity Provision

I do not agree with any claim that the proposed measure violates the
Constitutional proscription against ex post facto laws. The case of In re Kay Villegas
Kami (GR No. L-32485, October 22,1970), the Supreme Court made an enumeration of
when a law is ex post facto:

(1) It makes criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act;
(2) It aggravates a crime, or makes it greater than it was, when committed;
(3) It changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed;

14
 (4) It alters the legal rules of evidence, and authorizes conviction upon less or
different testimony than the law required at the time of the commission of the
offense;
(5) It assumes to regulate civil rights and remedies only, but in effect imposes
penalty or deprivation of a right for something which when done was lawful;
and
(6) It deprives a person accused of a crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or acquittal,
or a proclamation of amnesty.

The essence of the above enumeration is the following: (a) they refer to criminal
legislation; (b) they are made to apply to acts committed before the effectivity of the
legislation; and (c) they prejudice an accused. While the proposed measure introduces
criminal offenses, none of these are made to apply to acts done before it becomes
effective. Instead, these are all clearly applied prospectively.

Thus, the non-retroactivity clause appears more directed at narrowing the scope of
information covered by the right of access. The question then is whether this is a
reasonable limitation of the guarantee. In its position submitted to the Committee, the
Right to Know. Right Now! Coalition believes otherwise. I reproduce the pertinent
section of this position here:

“While the constitution expressly empowered Congress to provide

limitations on the right to information, such limitations must not be
unreasonable. The following exchange from the Records of the 1986
Constitutional Commission is relevant:

‘MR. NOLLEDO: x x x My next question is with respect to Section 6,

lines 13 to 18, with particular emphasis on the word "limitations." May
I know if these limitations pertain only to the manner of the exercise of
the right to information on matters of public concern or can it affect to
some degree the substantial exercise of the right?

FR. BERNAS: My understanding is that it can include the

substantial content of the information; but these limitations, whether or
not we are talking about procedure or substance, must necessarily be
reasonable limitations.’

This is echoed by the Supreme Court in the leading case of Legaspi

v Civil Service Commission, the first FOI case decided after the
ratification of the 1987 Constitution. The court stated:

“What may be provided for by the legislature are reasonable

conditions and limitations upon the access to be afforded which
must, of necessity, be consistent with the declared State policy of
full public disclosure of all transactions involving public interest.”

We submit to the Committee that the non-retroactivity provision is

an unreasonable limitation of the right. In fact, it will work to drastically

15
roll back the people’s right to information rather than promote or protect
it.

The Constitutional guarantee of citizen’s access to information

does not make any distinction as to when the matter or transaction referred
to was recorded. By its very nature, records of information have an
inherently historical character. They represent an account of acts,
transactions, decisions, and data “designed to remain as a memorial or
permanent evidence of the matters to which it relates” (see Black’s Law
Dictionary entry on “record”). The public interest in the information
contained in such memorial or evidence is not necessarily lost by the
passage of time. Indeed, they retain their multifold public usefulness and
relevance, be it for accountability of public officials, for people’s
participation, for research, for the exercise of rights such as free speech,
expression, and press, or for availing government programs and services.
The non-retroactivity provision is thus unreasonable in that it defeats the
very public interest sought to be achieved by allowing access to historical
information.

The words of Justice Makasiar in the 5 June 1973 case Philippine

Blooming Mills Employees Organization v Philippine Blooming Mills
Co., Inc., resonates:

“x x x (H)uman rights are imprescriptible. If human rights are

extinguished by the passage of time, then the Bill of Rights is a useless
attempt to limit the power of government and ceases to be an
efficacious shield against the tyranny of officials, of majorities, of the
influential and powerful, and of oligarchs — political, economic or
otherwise.”

The non-retroactivity provision also has the effect of negating the

public right nature of the constitutional guarantee on access to
information. In the line of cases on FOI, the Supreme Court has
consistently held that a citizen need not show a present and existing
interest of a pecuniary character in the information sought to be regarded a
party in interest in a case to compel access to information. Making
historical information accessible to the public only by a subpoena duces
tecum implies that access requires evidentiary relevance in an ongoing
case, in which the citizen must be a party having personal interest.”

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IV. Proposed Way Forward

The absence of a Freedom of Information law for more than two decades since the
ratification of the 1987 Constitution has resulted in wanton violation of the right to
information. We have all been witness to the public outcry when the House of
Representatives failed to ratify the bicam report in the final session days of Congress.
The election of a new President under a platform of righteous leadership has given the
people renewed hope. The new administration cannot fail them again.

On the part of the Lower House, I, together with colleagues championing this
measure, will work to move this measure within a definite and reasonable timeline. The
Senate, for its part, has shown its commitment to pass this measure as early as the 14th
Congress, and we can expect it to again deliver in the 15th Congress.

But we also need a clear signal from no less than the Chief Executive that this
measure is welcome and is needed by the present administration. Congress needs to be
assured that in passing this law, it is being responsive not only to the clamor of the
public, but also to the platform of the present administration. This clear signal is without
prejudice to building consensus on a few more refinements as I have outlined above.

Let us work together for the immediate passage of this Act, and collectively show
that we are serious in our promise to lead the country towards the righteous path. Let us
cast aside our fears of this law, and leave a legacy that will enable a stronger democracy,
better governance, economic development, and responsive programs and services.

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