Light at the end of the FOI tunnel

Perhaps it is a small mercy that, as a result of the Priority Development Assistance Fund (PDAF) scam that has rocked the Philippine government, we have made dramatic progress towards the legislation of Freedom of Information (FOI).

Only a year ago – perhaps even just months ago – FOI advocates despaired to see FOI proposals reach plenary debates in Congress, let alone the desk of President Noynoy Aquino. Yet in the wake of the devastating revelations implying collusion between legislators and Janet Lim-Napoles, suddenly we have Aquino promising that FOI will be treated as priority legislation; we have neophyte Senator Grace Poe, showing veteran legislative skills, shepherding the Senate’s version of the FOI bill to passage this week.

It seems to be only the House of Representatives holding up the rest of the pack, although Speaker Sonny Belmonte has promised that the bill would pass by the end of this session of Congress. If he means we have to wait until 2016 for its passage, we say thanks, but no thanks, as waiting until then would be tantamount to again killing FOI.

Certainly, it has been a tortuous road for FOI over two decades long. It is also frustrating to note this lack of progress, in contrast to other democracies which have FOI legislation and institutions in place.

We certainly look with almost envy at the experience of the United States which, though it still grapples with issues of confidentiality vs. openness, especially in the security arena, it nonetheless has had a working transparency measure in place since 1967. This has taken the form of the Freedom of Information Act (FOIA).

The US system grants potential and actual access to a wide diversity of government records and data. In 2012 alone, the US federal government received 651,254 FOIA requests, with only 30,727 requests completely denied. Open government has been enmeshed in the political culture so much that “to FOIA” is practically as much a verb as it is an acronym.

Aspirations

The Philippines should aspire to reach that point where FOI also becomes a verb in our political vocabulary. To do that requires overcoming a political culture that had been – and perhaps still is – reluctant to address the issue of open government.

There are a few noteworthy initiatives to advance the cause: the late Jesse Robredo, for example, implemented full disclosure policies both in Naga City (as mayor) and the Department of the Interior and Local Government (DILG, as its secretary). The government has inaugurated its open government data web portal. But these gains will, however, be at risk of being revoked or reversed by future officials, without the permanence and durability of duly-enacted law.

Even the existence and effectiveness of the law itself is doubtful, though, if a society and its culture cannot throw its full support and weight behind it: to use the law, and not merely just see it come to existence. This, then, is the biggest task of advocates of FOI: not just to convince the powers in government to enact a law in the soonest possible time, but to also prepare Filipinos to fully take advantage of the law; to make Filipinos realize why it is important to have FOI in their daily lives.

The importance of FOI

Having FOI legislation in the Filipino’s daily life is important for 4 reasons. One, FOI doesn’t just grant access to information; the wording of the law must make government disclosure of public information mandatory, and commit its officers to extend due assistance to the requesting citizen. As will be seen later, there are some important exceptions to such ready disclosure; nonetheless active (not merely passive) transparency is the rule of FOI – and the opposite of the current culture in the bureaucracy.

Second, FOI has the potential to change that bureaucratic culture, by encouraging disclosure and assistance to requests, and penalizing obstruction of transparency. In particular, we again look at the example of the US FOIA: even without creating an office dedicated to government openness (oversight is provided by an office within their Department of Justice), the law authorizes the creation of posts within the federal government of FOIA officers: vanguards and implementers of the FOIA law and government openness, to help the agency determine what is disclosable, and what might be excepted.

Third, FOI and its implementing rules and regulations (IRR) establish a system of procedures and processes which are understood and easily performed by the requesting parties, to give both ready access to information to citizens, and accountability of disclosed information and an orderly workflow for government.

Moreover, it should also put in place adjudication procedures for a citizen who feels aggrieved that his request is not being thoroughly pursued, or when there is a dispute between government and the requesting party on whether such information can be disclosed, a process that can reach all the way to the courts.

Most importantly, FOI is an important step towards consolidating Philippine democracy. Knowledge and power were thought of in the same spheres, after all, from the days of Francis Bacon (“ipsa scientia potestas est”) to those of Michel Foucault. The opening of the gates of Malacañang in 1987 can only be equally matched and fully accomplished by a corresponding opening of the information floodgates of Malacañang.

Our politics has been observed to be feudalistic, thanks to chains of patronage that ruling elites in national and local government use to shackle the oppressed, and which facilitate a near-stranglehold on political and economic power. Democratizing information flow may provide the torch to ignite these flames, and finally modernize Philippine politics – transforming it from its feudal mindsets to a truly participative, liberal, and egalitarian enterprise.

FOI in action

What can FOI give the country – not just its press – that it deserves precious political capital? Of late, thanks to the PDAF scandal, other advocates, as well as we, hold that had FOI existed then, we could have headed off the pork barrel anomalies before they became so large, involved so much money, or compromised so many personalities.

We could have verified those NGOs that would have received PDAF allocations for implementation; we could have assessed if their projects were legitimate and if they were economically spending public money. While speculative (one must not underestimate a mind hell-bent on malice), at the very least, mandatory government disclosure, especially on public funds for public purposes, would raise the costs of corruption, deterring malfeasance through fear of easy discovery.

Yet the current corruption scandal is only a small window to the benefits FOI can provide ordinary Filipinos. FOI enables democracy by enabling informed participation. In environmental decisions, for example, giving ordinary citizens access to local land development plans, or disaster preparation and relief plans, gives them a chance to voice their own opinions and contributions to improve on such plans, or to prevent or mitigate adverse effects.

Economic policy and social security would also benefit from FOI, along the same lines as environmental benefits. The Philippines has had a penchant for big-ticket infrastructure projects – large-scale mining, big dams, industrial parks, and so forth. Some of the ill effects, apart from damage to the environment, have been community displacement of locals and indigenous peoples – from loss of home and livelihood to downstream health and psychological effects. Further downstream from that is the growth in opposition, sometimes peaceful, sometimes violent, to these large-scale projects.

Whether these projects shall be substituted by more sustainable, community-driven economic development plans, or if a means of peaceful coexistence can be found and negotiated, depends on the quality of the information brought to the table, the tabulation of specific costs and benefits of any and all proposals.

FOI democratizing information means that the information-power monopoly no longer belongs to a local politician, or a government bureaucrat, or a megacorporation, or an outside organization. It is possible – not immediately, but the opening is there for exploitation – for all stakeholders to treat each other as equals. More so if FOI also brings about a more information-cooperative, sensitive, and responsive government. (Politics and malice will certainly still interfere with this happy objective, but an FOI would considerably reduce their maneuvering room.)

Academics, and the study of policy and governance, too, will benefit from FOI. The political science and political economy communities will definitely appreciate the improved quantity and quality of information they can bear on their studies, in turn affecting both the analyses of contemporary developments they produce, and the students, future policy stakeholders all, they instruct.

To sum up, while progress has been made, our window for FOI, so suddenly blasted open by PDAF, is nonetheless rapidly shutting. Who knows if the next president will be less scrupulous than the sitting President? Who knows if we can sustain today’s reform efforts with tomorrow’s administration? FOI is our best insurance policy – it arguably is Noynoy Aquino’s greatest legacy to the country, the greatest gift to the people for which his own parents gave their lives.

If he cannot see this – or, if because of political pressure, he cannot say it – then we have to lend him sight and sound, to compel the state to grant us the right to information the Constitution promised us.

It is a promise long in coming. We now see the light at the end of the tunnel. We pray we have strength and time left to reach it. – Rappler.com

Follow Dean Tony La Viña on Facebook and on Twitter via @tonylavs. Christian Laluna is a first year law student at the Ateneo Law School. He works as a part-time writer and communications specialist at the Ateneo School of Government.