Poe sponsors FOI bill: Don’t wait for another Napoles scam

Rappler.com
'The passage of the Freedom of Information Act will bring about a new era of openness and transparency unprecedented in Philippine history'

CONSOLIDATION. Sen Grace Poe on Tuesday, Sept 24, sponsored the FOI bill on the Senate floor. File photo by Senate PRIB

MANILA, Philippines (UPDATED) – “The time is ripe for the passage of FOI.”

Sen Grace Poe, head of the Senate committee on public information, on Tuesday, September 24, sponsored on the floor the proposed Freedom of Information (FOI) law that seeks to install fast procedures for accessing government documents. 

Poe said the Senate version of the FOI bill is a consolidation of 12 separate proposals, including 9 bills and one resolution, Malacañang’s version of the measure, and the petition for indirect initiative by citizens’ groups. 

Senators Sonny Angara and JV Ejercito also delivered their co-sponsorship speeches. 

The bill, first pushed in 1992, came close to becoming a law in the 14th Congress (not just this Congress, as we reported in an earlier version of the story). A bicameral version of the bill was drafted, but the House of Representatives failed to vote on it due to lack of quorum.

“I just find it quite unfortunate, Mr. President, that we had to wait for something like the ‘Napoles Pork Barrel Scam’ and the ensuing ‘Million People March’ to happen before this bill could garner bipartisan support in Congress. Such is not the case in other countries,” Poe said.

On Wednesday, September 18, a joint Senate panel approved the FOI bill after holding only two hearings. Meanwhile, the House of Representatives have yet to conduct hearings.  

The Senate has been known to be in favor of the FOI bill in the past. In the 15th Congress, the Senate approved FOI on 3rd and final reading but the bill did not prosper after the House of Representatives failed to tackle it on the floor. 

Read Poe’s sponsorship speech:

“LET THE SUN SHINE IN”

Mr. President, my distinguished colleagues: 

I stand here today to sponsor Senate Bill 1733, otherwise known as the “People’s Freedom of Information Act of 2013.” The said bill is a consolidation of nine (9) FOI legislation filed by our eminent colleagues, namely; Senators Escudero (Senate Bill 18), Trillanes (S.B. 36), Osmeña (S.B. 44), Honasan (S.B. 64), Guingona (S.B. 74), Alan Peter Cayetano (S.B. 90), JV Ejercito (S.B. 217), Legarda (S.B. 514), and Angara (S.B. 1219), and PSR 102 by this representation, as well as the Petition for Indirect Initiative filed by civil society groups.  

Mr. President, distinguished colleagues, passage of the Freedom of Information Act is long overdue. The FOI bill has long been discussed, dissected, scrutinized and debated, and it has been bypassed by Congress twice already, Mr. President. It has languished in Congress for far too long already. In fact, when the very first FOI bill was filed way back in 1992,  it was called to my attention wala pa pong internet sa Pilipinas nun; wala pang Facebook,  Twitter at Instagram nun. On a more personal note Mr. President, noong mga panahong yun kaka-graduate ko pa lang po ng Political Science sa Boston College (1991) at kaka-panganak ko pa lang sa aking panganay na si Brian (1992). Sa ngayon Mr. President, naka-graduate na sa college ang aking anat at di pa rin naipapasa ang FOI bill sa Kongreso. 

The time is ripe for the passage of FOI, Mr. President. Majority of our colleagues are for it; the leadership of both Houses of Congress (Senate President Drilon and Speaker Belmonte) have openly declared their support for it; and even Malacañang has announced that the FOI bill will be included in the LEDAC list of priority measures. But most importantly Mr. President, there is a real, genuine public clamor for it. Dinig na dinig, ramdam na ramdam po natin ang kagustuhan ng mamamayan para sa FOI. Given such favorable conditions, I do not see any reason why we should again fail to approve this vital piece of legislation this 16th Congress. 

Mr. President, in coming up with the consolidated version of the bill, your Committee reviewed the archival records of earlier FOI hearings in previous Congresses. We also conducted two (2) public hearings where we elicited views from as diverse and as broad a spectrum of Philippine society as possible – the academe, the Philippine business sector, media organizations, civil society, social media “netizens,” the defense department, Executive officials and others. Lastly, my staff also conducted an extensive review of literature in order to learn about the latest developments and/or findings on FOI legislation around the world.

FOI: A BRIEF THEORETICAL & HISTORICAL BACKGROUND 

Marami po ang naniniwala at umaasa na ang FOI Act ang sagot sa problema natin sa korupsyon. Many people believe that the only way to prevent corruption is by making public documents and transactions open to the public. What the Freedom of Information Act basically wants to do is apply the “Sunshine Principle” in government. Ano po ba ang “Sunshine Principle?” In simplest terms, the Sunshine Principle states that “all things not exposed to sunlight acquire germs.” Alinsunod sa Sunshine Principle, ang lahat nang bagay na hindi nasisikatan ng araw, tinutubuan ng mikrobyo at nagkakaroon ng dumi. Tulad halimbawa ng sapatos, Mr. President – pag ito po ay itinago mo ng matagal sa isang madilim na sulok ng inyong cabinet, di ba nagkakaroon ng amoy at nagkaka-amag? Ganun din po sa gobyerno. Dapat po ay ibilad sa araw at hindi tinatago ang mga transakyon upang hindi tubuan ng mikrobyo ang ating gobyerno – yan po ang “Sunshine Principle.” Exposing government to the “sunshine” of public scrutiny will kill the “germs” and disinfect the “microbes” that lead to waste and red tape, abuse of authority and gross misconduct, and graft and corruption. 

I just find it quite unfortunate Mr. President that we had to wait for something like the “Napoles Pork Barrel Scam” (and the ensuing “Million People March”) to happen before this bill could garner bipartisan support in Congress. Such is not the case in other countries, Mr. President. For instance, in Thailand (which is the very first country in Southeast Asia to enact an FOI law), the FOI movement began not because of some multi-million dollar scam perpetrated by some Thai politician but out of something more innocuous and more “modest” (“modest” at least by Philippine standards) – one woman could not quite accept the fact that her daughter failed to pass a state university entrance exam. Furious and frustrated, the mother petitioned university officials to release the full results of all persons who took the entrance exam. The woman’s lone crusade eventually gained media attention and earned widespread public sympathy. In the end, the mother was able to confirm what many people in Thailand have long suspected – that children from affluent, influential families were admitted into the state university despite their having gotten lower grades than her daughter.  Thus, the FOI Act of Thailand really grew out of one woman’s crusade over her daughter’s inability to gain admission in a university. It is truly sad, Mr. President, to see that we Filipinos seem to have developed a higher “tolerance level” for corruption compared to our neighbors in Asia, and that we always seem to wait for things to go from bad to worse before we are moved into action. 

Sweden holds the distinction of having passed the very first freedom of information law in recorded history. In 1766 Mr. President, the Swedish Parliament passed the Freedom of the Press Act which granted citizens access to official documents. Soon after, this “germ” of an idea (or “gem” of an idea rather) – that people have a right to know what their government is doing – spread like a virus to neighboring countries in the Scandinavian region like Finland, Norway and Denmark. Today, the FOI tradition in Sweden is so far advanced Mr. President that even the email (and other official communication thru internet) of their Prime Minister is available for any citizen to see. 

The countries of Scandinavia have been consistently rated “least-corrupt” by various international rating organizations. For instance, based on the 2012 Corruption Perceptions Index of Transparency International, Finland and Denmark both shared the No. 1 spot as the least-corrupt countries in the world while Sweden was ranked No. 4 and Norway was the 7th least-corrupt country in the world. It is definitely not mere coincidence that the countries with the least amount of corruption are also the countries where the FOI tradition is oldest and strongest. In contrast, the Philippines is currently ranked 105th (out of 174 countries).

 In recent times, the FOI movement has gained widespread currency and worldwide momentum. “Na-uuso” kumbaga Mr. President. To date, there are at least 94 nations have already enacted their own FOI legislation, and another 53 countries are in the process of ratifying their respective FOI laws.  

Pero hindi po sa lahat ng pagkakataon nagiging matagumpay ang FOI sa mga bansang meron na nito. In fact, according to one study conducted by David Banisar of Privacy International, the vast majority of countries today that have FOI have freedom of information “in name only, but not in spirit.”  Samakatuwid, karamihan sa mga bansa na meron nang FOI nakikisabay lang sa uso (or “nakiki-uso lang”) at hindi naman seryoso sa pagpapatupad ng kanilang batas ukol sa FOI. 

ELEMENTS OF A “STRONG” FOI LAW 

It is precisely for this reason, Mr. President, that we must ratify a “strong” FOI version. Otherwise, the Philippines will encounter a similar situation wherein we have freedom of information “in name only, but not in spirit.” Dapat huwag lang tayo sumunod sa kung ano ang uso. Dapat talaga lagyan natin ng ngipin ang FOI para mas malakas at lalo maging epektibo ang FOI sa pagsugpo ng korupsyon.

There are numerous research studies, Mr. President, which demonstrate that a strong Freedom of Information law indeed minimizes graft and corruption. One study for instance found that when the United States Congress strengthened their  FOI law, the prosecution rate of their graft cases drastically improved (and I quote) “the number of court convictions nearly doubled in the first 3-to-8 years after FOI law was strengthened.”  Aside from raising the conviction rate, the experience in other countries also show that better public access to information has made governmental institutions more accountable and more responsive to the actual needs and demands of the people, often resulting in faster and more efficient delivery of basic services.   

Aside from Sweden, the other countries which seem to be showing the way in the area of FOI legislation are Mexico, New Zealand, Australia and India. Based on our research, the following are the five (5) ingredients (or elements) that make for a “strong” FOI law:   

1.Presumption of Release. A good FOI law must have a “presumption of release” provision. This means that there is blanket coverage for all public information and that all official documents are assumed to be open to the public, unless expressly prohibited by the law. Sa madaling sabi, kung hindi bawal, puwede! This is the very essence of “freedom of information.”     

2.Clearly-Defined Exemptions. Almost all FOI laws around the world Mr. President provide for certain exemptions or “non-disclosure rules,” which typically involve national security, operational security, trade secrets (e.g. intellectual property rights), diplomatic security, presidential privilege, and other information that are sensitive or confidential in nature. In formulating an FOI law, international experts suggest that exemptions should be limited and must be clearly-defined. Otherwise, too many vaguely-worded exemptions would effectively render the FOI law useless. 

In addition, the non-disclosure rule is not absolute, and is usually covered by a specified timeframe – usually between 15 to 30 years after the fact – when the classified documents can be released to the public,. 

3.Existence of an Independent Implementing Agency. Various experts also assert that the establishment of a separate, independent “implementing agency” dedicated to resolving FOI cases is crucial to the success of FOI.  In Mexico, for example, there is a special body called “IFAI”  which resolves FOI cases in a timely manner.  In other countries, denied requests for information are typically settled and/or decided by ordinary circuit courts, which not only takes a lot of time but requires a lot of money for requesting parties. 

4.Efficiency / Timeliness. For FOI to be effective, government must give its citizens access to what experts call “actionable data.” “Actionable data” is data that is a.) current or up-to-date and b.) data that is usable or “sortable.” Typically, what we see on government websites today are “after-the-fact data” – Annual Reports, statistics that are three years old, etc. – in other words, information that is no longer “actionable.” Nangyari na. Tapos na.  

Also, government must make accessing data quickly, easy and convenient for its citizens. Last but not least, people must be able to access information at no cost or at very minimal cost as much as possible. 

5.Strict Penalties for Non-Compliance. For the FOI law to be successful, there really has to be penalties and/or fines to punish non-compliance. Otherwise, government officials will just continue on ignoring requests for information.   

In addition Mr. President, “freedom of information” is not exactly “free.” It has cost implications. Before government could be able to grant “access,” it must first have in its possession the “information.” In other words, before government can begin handing out information to anyone who wants it, it must first possess the capability to effectively organize its information management systems. 

Everyone seems to agree that we must grant our citizens access to official information. Pero aanhin mo yung “access” kung wala namang “information?!” Freedom of information therefore is not only about access but is also about proper information management and archiving practices. Kalakip po palagi sa pagbigay nang “access” ang pagtataguyod ng “information dissemination infrastructure” na madaling gamitin at maintindihan ng ating mamamayan. For FOI to be truly effective, government must invest in “digitalizing” its documents (converting its files into digital format) and modernizing its information management systems. 

SALIENT POINTS OF SENATE BILL 1733

Allow me now Mr. President to present some of the salient points of Senate Bill 1733, entitled “An Act Implementing the People’s Right to Information and the Constitutional Policies of Full Public Disclosure and Honesty in the Public Service and For Other Purposes,” and otherwise known as the People’s Freedom of Information Act of 2013. 

The people’s right to information is a right long enshrined in our Constitution Mr. President, specifically under the Declaration of Principles and State Policies, and under Section 28, Article II of the Philippine Charter. Furthermore, the people’s “right to know” is recognized in Section 7, Article III which provides (and I quote): 

“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 such limitations as may be provided by law.”

Napaka tagal na po ng batas na ito, hanggang ngayon ang implementasyon hindi pa din natin nagagawa.

Senate Bill 1733 is to be the implementing law of this constitutional mandate. The said measure provides the general framework of rules and guidelines, exemptions and limitations, procedures and penalties in the exercise of this right. 

Except for some minor refinements, Senate Bill 1733 is substantially similar to the version that was approved on Third Reading by the previous 15th Congress. In coming up with this updated FOI version, we took into consideration the inputs of various government agencies – particularly the recommendations of the Office of the President, Department of Justice, Civil Service Commission, Ombudsman, Department of National Defense. We likewise studied the position papers and policy suggestions of a number of resource persons from the business sector, academe, union of journalists and media organization, social media “netizens,” and civil society groups. 

I will now discuss in detail some of the important provisions of the bill. 

a.Section 4 of Senate Bill 1733 states that the FOI rule on full public disclosure covers all government agencies and instrumentalities which includes the Executive, Legislative, Judicial branches of government, constitutionally-mandated bodies, local governments as well as government-owned-and-controlled corporations (GOCCs) and government financial institutions (GFIs). Upon the recommendation of the Civil Service Commission (CSC), we added a new provision that will include “public service contractors” such as foundations, non-governmental organizations (NGOs) and peoples’ organizations (POs) as among those to be covered by the FOI law, insofar as their contract or transactions with government are concerned. 

b.Section 5 grants every Filipino citizen the right to request and be granted access to any record or information that is under the control of government, subject of course to the limitations enumerated in this FOI Act. 

c.Section 6 states that “there shall be a legal presumption in favor of access to information. No request for information shall be denied unless it clearly falls under the exceptions provided under this Act.”  

d.Section 7 of the measure lists down the exceptions to the FOI rule, which includes the following: 

•Information that could cause serious damage to national security and our country’s internal and/or external defense;

•Information that could unduly weaken our country’s bargaining position in international negotiations or seriously jeopardize diplomatic relations with other countries;

•Information that could compromise law enforcement operations and endanger the life of an individual;

•Information that was obtained by Congress in executive session 

•Information covered by “presidential privilege;” 

•Information pertaining to trade secrets and commercial information; 

•If the information requested would constitute an unwarranted invasion of an individual’s right to privacy

Senate Bill 1733 also provides that at no time shall exemptions be used to cover up a crime, wrongdoing, graft or corruption. Ibig sabihin hindi ka pwede magtago at sabihin na saklaw ng “national security exemption” or ng “presidential privilege” ang isang impormasyon kung ang motibo mo lang ay pagtakpan ang palpak na trabaho o katiwalian sa isang departamento. 

e.Section 8 requires government agencies to upload on their respective websites the following information: 

•The Statement of Assets, Liabilities and Net Worth (SALNs) of those like the office of the President, Vice President, Cabinet members, members of both Houses of Congress, Justices of the Supreme Court, members of Constitutional Bodies, and officers of the Armed Forces of star rank; 

•All information pertaining to their Annual Budget, Monthly Disbursements, IRA utilization, Procurement Plan, the list of vacant positions in their agency, items for bidding and the results of the bidding, contracts entered into the government with any domestic or foreign entity, bilateral or multilateral treaties, licenses or permits granted to any entity for the extraction of natural resources, and loans entered into by government from any domestic or foreign financial institution.  

Moreover, Senate Bill 1733 provides that any loan or transaction entered into by any government agency amounting to at least 50 million pesos (₱50,000,000) shall be uploaded in full on the website of the concerned government agency or the Official Gazette online.

f.Section 10 of the bill stipulates that the right to privacy of individuals shall always be protected, and instructs government agencies to “protect personal information in its custody or under its control by making reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure, or disposal.”

In the crafting of Senate Bill _1733___ we were always conscious and mindful of the fact that FOI can be used as a tool to damage reputations and harass individuals. Thus, we sought to strike an ideal balance between safeguarding public interest without sacrificing the person’s right to privacy. 

g.Section 11 provides for the dissemination of an FOI Manual and likewise direct all government agencies to list down the type and kind of information it regularly generates so that people will know what information is obtainable from a particular agency.   

h.Section 12 of the FOI Act details the appropriate procedure how a person can request for information from government agencies. The same section requires government officials to act and/or comply within fifteen (15) working days upon receipt of the request for information. 

i.Section 16 of Senate Bill 1733 provides for a system of remedies in case the request for FOI information is denied. For instance, if the requesting party is not satisfied with the action of a government agency, he may file a verified complaint in the Office of the Ombudsman or file a verified petition for mandamus in a regular court. If the requesting party has limited or no financial capacity, he can approach the Public Attorney’s Office to request legal assistance in availing of the remedies provided in this Act

j.Section 17 directs all government agencies to observe good record-keeping practices and enjoins them to set-up information management systems that allow for easy identification, retrieval and communication of the information to the public. Moreover, government agencies are instructed to identify specific classes of documents that have continuing historical, legal, evidentiary or research values (that the FOI stipulates they cannot dispose or destroy) and they should transfer the same to National Archives of the Philippines for preservation. 

k.Section 19 directs all government agencies to set-up their respective FOI-compliant web sites within two (2) years after the law takes effect, and likewise encourages them to make their websites user-friendly and understandable to the layman. As such, Section 19 also contains a provision instructing government agencies “to use plain language and if possible, translate important information into major Filipino dialects” so that people will be able to appreciate the information better. Dapat madaling maintindihan at hindi lamang mga abogado ang nakakaintindi nito.

l.Sections 20 and 21 make government officers who violate the FOI Act criminally and administratively liable. Section 20 enumerates acts that constitute grave administrative offenses (punishable by suspension or dismissal from the service) such as a.) failure to act on the request within the period required by the Act and b.) refusal to comply with the decision of an immediate superior, the Ombudsman or of any court ordering the release of information. 

Section 21 on the other hand lists down the various acts that make a government officer criminally liable for violations of the FOI Act, which carries a penalty of imprisonment of not less than one (1) month but not more than six (6) months. Among the acts are the following: a.) knowingly denying the existence of existing information, b.) destroying information being requested for the purpose of frustrating the requester’s access, and c.) claim an exception provided under the FOI Act, when the claim is manifestly devoid of factual basis. 

m.Section 24 of Senate Bill 1733 stipulates that the concept of ”freedom of information” be introduced in the public school curriculum and integrated in subjects such as Heyograpiya, Kasaysayan at Sibika (HEKASI) and Araling Panlipunan for the elementary level or Social Studies and Makabayan for the high school level. Para bata pa lang alam na nila ang karapatan nila.

As I mentioned earlier Mr. President, a substantial part of Senate Bill 1733 was copied from the Third Reading version during the previous Congress. For example, the bill’s provisions pertaining to what information is covered and what is exempted from FOI coverage, the procedure for accessing information and the system for redress (in case of denial), the mandatory posting of SALNs and the provisions on record-keeping/archiving, were all lifted from the earlier FOI version. 

This is not to say that Senate Bill 1733 is completely identical to the old FOI bill Mr. President. There are new additions and “minor refinements” that your Committee introduced in the current FOI measure. For example, in Section 4 (under “Coverage”) we included “public service contractors” as among those to be covered by FOI. The word “public service contractors” could be construed to mean private organizations such as foundations, NGOs or POs that have contracts or projects with government. It is imperative Mr. President, to include private organizations in the coverage of FOI because in this country, graft and corruption is often a product of a “public-private partnership”. 

In addition Mr. President, Senate Bill 1733 stipulates civil and criminal penalties for violations of the FOI Act (as contained in Sections 20 and 21), a feature not present in the old FOI measure. The reason for this Mr. President is that your Committee believes that we really have to impose strict penalties in order for the FOI law to be successful. Dapat talaga lagyan natin ng ngipin ang batas kung hindi babalewalain lang po tayo. 

Lastly Mr. President, we added two more provisions on “plain writing” (as embodied in Section 19) and the introduction of FOI into the public school curriculum (as contained in Section 24 of the bill). We really need to teach our children the concepts of transparency, accountability and people’s right to information so that our future generations will imbibe the concept of FOI and develop an FOI culture. We also felt the need to encourage the bureaucracy into making their websites “usable,” “sortable” and easy-to-understand by adding a seeming superfluous “plain language” stipulation in the bill. To better understand the purpose, I will illustrate a specific example Mr. President. One common practice today is for a government agency to print an official document, then scan the “hard” document and then post it (as a PDF file) on its portal. This practice practically renders the data “unsortable” or “unsearchable,” and thereby unusable to many users Mr. President. So what potentially can happen Mr. President is that once the FOI is enacted into law, the public will be deluged with tons of information (in PDF format) on government websites which he cannot sort/search and make any sense of. Therefore, we need to add this provision to encourage government to make the presentation of their data more user-friendly. Otherwise, government officials may see a loophole and find a way to “comply” with the letter of the law, but not its spirit.

CONCLUDING REMARKS

In closing Mr. President, the passage of the Freedom of Information Act will bring about a new era of openness and transparency unprecedented in Philippine history. FOI will profoundly change our politics, our government and our society as a whole, for the better.

Mr. President, the world has been swept by remarkable technological changes in the past 20 years. We now live in the Age of Information, where ordinary citizens have access to information and receive news as fast as their leaders. We now live in a world where people have bigger material needs and higher expectations in life. We now live in a global economy where developments in places as far away as Syria can have a significant impact on our local economy.

The Philippines is now the “Social Media Capital of the World” Mr. President. There are now 35 million internet users in the country, and DOST is projecting that the Philippines will have 99% internet penetration by the year 2015 (that’s two years from now Mr. President). In today’s Information Age, ideas spread faster than a virus, news travels at the speed of light, and people can access information (quite literally) at their fingertips. Just last month, we witnessed the awesome power of social media when thousands of concerned netizens answered the call to mount a “Million People March” to protest. Make no mistake about it Mr. President, the internet is a “game-changer” and it will change our country profoundly.  

Today’s generation, they want information, and they want it instantly and they want it free. We cannot expect today’s youth to line up just to get their desired data – they want the information posted and downloadable on a government website. We cannot expect today’s generation, so used to having free content on the internet, to pay ₱12,000 just for some national survey on nutrition or some statistical data on labor. Today’s generation want information at their fingertips, and we must give them so that they can help understand their government.

Sa pamamagitan ng FOI, mababawasan ang katiwalian sa gobyerno. At indi lang yan, matututo pa ang ating mamamayan na maki-alam at maki-lahok sa pag-hubog ng mga polisiya ng kanilang gobyerno. By way of closing, let me cite what our dear President Benigno “Noynoy” Aquino said in a speech that he delivered last November (and I quote): 

“Kapag may sapat at tamang impormasyon si Juan dela Cruz sa mga isyung panlipunan – hindi lamang siya armado sa kaalaman – gaganahan at mae-engganyo rin siyang makilahok sa pagpapaunlad ng bayan.”

FOI will not only prevent graft and corruption but more importantly, our citizens will learn to get involved and participate and thus will become true stakeholders in their government. This, Mr. President, is the true essence of democracy.

Mr. President, my dear colleagues, the FOI Act is long overdue. Let us not delay its passage anymore. Let us heed the clamor of the people and approve this measure without further delay. Madali lang ang pagpipilian, dilim o liwanag.

Kailangan masinagan ng araw ang lahat ng transaksyon ng pamahalaan. 

Thank you. 

Let us know in the comments section what your thoughts are about the consolidated bill on FOI. – Rappler.com