[ANALYSIS | Deep Dive] Inaccessible SALNs

 

It has brought down two chief justices already and continues to be the bête noire of many a public official. “It” is, of course, the Statement of Assets, Liabilities, and Net Worth or SALN, a requirement imposed on all public officers and employees by Article XI, Section 17 of the 1987 Constitution and implemented by Republic Act No. 6713, Section 8.

Very recently, the House of Representatives, led by no less than the Speaker herself, passed H. Reso. No. 2467 adopting the “Rules of Procedure in the Filing, Review, and Disclosure of, and Access to, the Statements of Assets, Liabilities and Net Worth (SALNs) of Members, Officers and Employees of the House of Representatives.”

The short story behind the long title is that access to House SALNs is now subject to a majority vote by the House in plenary session under Section 14 of the proposed Rule.

We take a Deep Dive into House Resolution No. 2467 and the parallel measures in the two other branches regulating access to SALNs.

Presumption in favor of access

Both the Constitution and the law establish a presumption in favor of access to information on a public officer or employee’s state of wealth.

Article XI, section 17 of the 1987 Constitution requires every public officer and employee to submit a SALN “upon assumption of office and as often thereafter as may be required by law.” Section 8, RA 6713 provides that public officials and employees have an obligation to accomplish and submit their SALNs including those of their spouses and of unmarried children under eighteen (18) years of age living in their households but, more importantly, that the public has the right to know.

The law also provides that SALNs shall be made available for inspection at reasonable hours. They shall also be made available for copying or reproduction after ten (10) working days from filing, subject to the payment of a reasonable fee to cover cost of reproduction and mailing, as well as the cost of certification.

The only constitutional limitation to this access would be with regard to SALNs filed by specific officers, namely, the President, the Vice President, Cabinet members, Congress, the Supreme Court, the constitutional commissions and other constitutional offices (such as the Ombudsman and the Commission on Human Rights), and officers of the armed forces with star or flag rank, where limitations on disclosure may be provided by law.

The Implementing Rules and Regulations to RA 6713 provide that access to official information, records, or documents shall be provided to any requesting member of the public, except if:

• such information, record or document must be kept secret in the interest of national defense or security or the conduct of foreign affairs;
• such disclosure would put the life and safety of an individual in imminent danger;
• the information, record or document sought falls within the concepts of established privilege or recognized exceptions as may be provided by law or settled policy or jurisprudence;
• such information, record or document compromises drafts or decisions, orders, rulings, policy, decisions, memoranda, etc;
• it would disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy;
• it would disclose investigatory records compiled for law enforcement purposes, or information which, if written, would be contained in such records or information that would  interfere with enforcement proceedings; deprive a person of a right to a fair trial or an impartial adjudication; disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source; or unjustifiably disclose investigative techniques and procedures; or
• it would disclose information the premature disclosure of which would (i) in the case of a department, office or agency which agency regulates currencies, securities, commodities, of financial institutions, be likely to lead to significant financial speculation in currencies, securities, or commodities or significantly endanger the stability of any financial institution, or (ii) in the case of any department, office or agency be likely or significantly to frustrate implementation of a proposed official action, except that subparagraph (f) (ii) shall not apply in any instance where the department, office or agency has already disclosed to the public the content or nature of its proposed action, or where the department, office or agency is required by law to make such disclosure on its own initiative prior to taking final official action on such proposal.

In view of the presumption in favor of access, any restriction or regulation bears a heavy burden of justification.

Judiciary, executive and the Corona lesson

Parallel to H. Reso. No. 2467 are the guidelines provided by the Supreme Court in 2012 for the release of the SALNs of justices, judges, and court officials.

In 2012, fresh from the removal of former chief justice Renato C. Corona for his failure to disclose specific information in his SALN, the Court provided guidelines for access to the SALNs of judiciary members. The guidelines provided a procedure for access with specific exceptions, with the final determination being left to the Supreme Court En Banc.

The Supreme Court would later, in a Resolution dated July 3, 2018, authorize the posting of summary reports of the SALNs of the Justices starting from 2017, subject to specific guidelines contained therein. The Court would also later provide for updated guidelines on requesting information, including requesting for SALNs, in its “Rule on Access to Information About The Supreme Court.”

For the Executive Branch, the latest policy directive on access to SALNs is found in Executive Order No. 2 (S. 2016), which provides that SALNs shall be made available for scrutiny subject to any of the exceptions enshrined in the Constitution, existing law or jurisprudence.

A legal presumption in favor of access to information, public records and official records is expressly provided and “(n)o request for information shall be denied unless it clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions circularized by the Office of the President provided in the preceding section.”

House’s more burdensome guidelines 

Similar to the guidelines issued by the judiciary and executive branch, the House guidelines on access to SALNs provides for regulation of access to the SALNs on file.

Unlike, however, the two other branches, the procedure in the House is much more stringent. 

Under the judiciary guidelines, it is only the Clerk of Court of the particular court that makes a preliminary determination and only to forward it to the Supreme Court En Banc. Under Executive Order No. 2, any requests shall be received by the specific government office with a tracer to track the status of the request and a deadline to respond to a request that is considered fully-compliant with the requirements for access.

The House guidelines provide for a three-step process starting with a preliminary determination and evaluation by the SALN Review and Compliance Committee Secretariat, which determines if any of the limitations under section 12 (7) of H.B. 2467 exist.

In specific instances, the Committee Secretariat may even require the House Member to provide a comment to the request. The Secretariat then recommends the appropriate action to SALN Review and Compliance Committee itself, which may grant or deny access to the filed SALNs. It is the House, in plenary, which determines if access to the copies of the SALN will be provided. 

There are no timelines provided in the House guidelines, unlike in Executive Order No. 2. There are also no standards for the members of the Secretariat to act in the event that  specific House Member disagrees with the request. Instead of providing for greater access, the House guidelines make it more difficult to gain access.

And because any decision to release copies is left to the vote of the House in plenary, this would subject the request to an unduly burdensome and unreasonable requirement of obtaining a majority of members of the House voting to release copies to those requesting.

In view of the presumption in favor of access, H.B. No. 2467 might appear to be in conflict with the Constitution, something which even the President’s spokesperson has noticed.

The guidelines limit access to SALNs of members, officers, and employees of the House and impair transparency and, ultimately, accountability. – Rappler.com