The people’s right to official information is an indispensable element of a functioning democracy. The ideal of a “government by the people” presupposes that the people have access to information on matters of public concern in order to effectively exercise its governing power. As observed by the Philippine Supreme Court in one case(1) , “(T)here can be no realistic perception by the public of the nation’s problems, nor a meaningful democratic decisionmaking if they are denied access to information of general interest.” The free flow of information about the affairs of government paves the way for debate in public policy, and fosters accountability in government.

The people’s right to official information is not only a political imperative. It is also essential in economic life. A free flow of official information results in better government policies. It provides the institutional foundation for a more responsive government planning by enhancing the capacity of the public to provide timely feedback to government. The availability of official information widens the base for the generation of more knowledge about key development issues, not only by researchers and academic institutions, but also by the public at large. It promotes constructive and informed debate between and among government and stakeholders, and builds consensus around policy objectives and design. All these promote more informed government interventions supported by a solid and broad-based constituency.

A free flow of official information is also a vital safeguard against corruption and rent seeking in government. The economic costs of corruption and rent seeking are well known. There is loss in consumer surplus arising from higher prices, as well as loss in output because resources are wasted in rent-seeking activities such as bribery. Secrecy in government makes corruption and rent seeking flourish. It gives government officials and rent seekers alike a wider room for maneuver and a greater cover for any evidence in corruption. In contrast, transparency exposes the vested interests involved, leads to the identification of corrupt officials, and eventually develops a more level playing field among economic actors.

Finally, a free flow of official information enhances economic performance. The availability of information on official rules, policies, programs, and resource allocation enables the private sector to make sound long-term economic decisions. This, in turn, advances economic efficiency and competitiveness.

The Law on Access to Official Information in the Philippines

The Philippine Constitution guarantees the right of its people to information on matters of public concern. Section 7 of the Bill of Rights of the 1987 Constitution reads:

“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.”

This right has not always been part of the civil and political rights guaranteed by the Philippine Constitution. The 1935 Constitution did not have this in the Bill of Rights, unlike most other fundamental civil and political rights known today. It was only in 1973 that it was accorded the status of a Constitutional right, ironically while Martial Law was in force.

Thus, until 1973, a citizen seeking to compel government to disclose information must rely upon some right conferred by statute, or when applicable, invoke the right to due process. In the absence of a specific statutory right, and where the right to due process finds no application, information disclosure was a matter of policy on the part of government, and therefore within its discretion.

Jurisprudence has so far clarified key aspects of the right of the people to information on matters of public concern, particularly its nature and scope. As regards its nature, the Philippine Supreme Court has proclaimed that the right to information is not a private right, but a public right, which may be asserted by any citizen. It is an attribute of sovereignty in a republican system. The sovereign has the right of access to information on matters of public concern as part of its governing power. Correspondingly, on the part of the representative lies the duty to afford access to such information.

Regarding its enforceability, the Philippine Supreme Court in the case of Legaspi vs. Civil Service Commission(2) has held that the Constitutional provisions on the right to information are self executing. The Constitution grants the right and supplies the rules by which it may be exercised. The first sentence of Section 7, Article III of the Constitution grants the general right, that is, to information on matters of public concern. The second sentence supplies the means by which such right may be enjoyed, that is, by having 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.

As to the scope of the guarantee, it covers such information that relates to matters of public concern. In the Legaspi case, the Philippine Supreme Court noted that there is no rigid test in determining whether or not a particular information is of public concern. It “can embrace (a) broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen.” Suffice it to say that when the government possesses information, a presumption arises that the information pertains to its affairs and operations, and therefore of public concern and a proper subject of the guarantee.

The Constitution, however, qualifies the general rule by providing that access is subject to limitations as may be provided by law. In the case of Chavez vs. PCGG(3) , the Philippine Supreme Court outlined “some” of the recognized restrictions:

(1) National security matters. The Supreme Court said that it recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.

(2) Trade secrets and banking transactions.

(3) Classified law enforcement matters, such as leads on covert criminal activities.

(4) Other confidential information, such as those provided by statutes and all other acknowledged limitations.

As regards the remedy, the Philippine Supreme Court also in the case of Legaspi outlined the process by which the right may be exercised by the people. First, a request for information is addressed to the government agency having custody thereof. Such agency may not deny access to information, but may impose reasonable regulation as to the time and manner of the access. When access is denied, the government agency has the burden of showing that the information is not of public concern, or if it is, that it is exempted by law or some recognized limitation. The person to whom access was denied may seek judicial review of such denial, and in a proper case, the court may grant a writ of mandamus to compel access.

The Philippine Experience on Access to Official Information

Despite the Constitutional guarantee and the judicial affirmation of the right, denial of access to information on matters of public concern in the Philippines remains widespread. The problem is more acute as regards information that do not form part of the data and reports that government agencies routinely publish or make available to the public. Requesting such documents, records and data from some government offices is frequently met with inaction, excuses, referrals, or outright rejection.

We can expect denial of access to information on matters of public concern when the information has some relation to an anomaly or irregularity in the official transactions of an office or its officers and employees. The agency withholds the information to protect the public officers concerned from embarrassment, or from criminal or administrative liability.

But even when the information is not of this nature, violations of the right still happen. There are two common reasons for this. One, there are times when the information is controversial and opens the agency possessing the information to questions and criticisms. In these instances, the agency sometimes takes an adversarial posture against the requesting public. Especially when the agency believes in the propriety of their actions, bad faith is imputed to the information user, and access to information is denied.

The other reason is technological. A large section of the Philippine government is still without the equipment to electronically store information. This can make information retrieval difficult. When the information is not in the processed, readily available form, affording the public access to such information often requires additional work. Providing access is seen not as part of the regular duties, but as a favor subject to the custodian’s discretion and convenience.

Why does denial of access to official information remain pervasive?

One reason is that the public has yet to be fully aware of its right and actively claim it. A lot of the requesting public still consider access to information a privilege. Even the media, which many count on to be a vanguard of the right, is no exception. Many media practitioners nurture information sources within the bureaucracy accessible exclusively to them. This practice worsens the problem, for it perpetuates the system of relying on information leaks for vital matters to be brought to the people's attention.

The judicial remedy of mandamus to compel access to information on matters of public concern is also weak in ensuring the full enjoyment of the guarantee. Access to information needs to be immediate for it to be useful. But litigation takes time. When the Court finally orders the agency to release the information, its import has been mooted by supervening events.

To advance the full enjoyment of the right, the remedies available must not only compel disclosure or access in the event that the right is violated; they must also deter violation. This should be part of the purpose that sanctions, whether administrative, penal or civil, serve. But owing to the relatively recent recognition of the right by the Constitution, specific penal and civil sanctions have yet to be provided in the statutes.

There are also times when denial of access to information on matters of public concern is based on statutory exemptions. One question that must be raised is whether these exemptions are reasonable and do not unduly abridge the policy of full public disclosure of information on matters of public concern.

The Role of Civil Society in Promoting the Right to Official Information

Getting vital official information and bringing it to public attention. Civil society organizations are at the forefront of obtaining important official information and bringing it to public attention. In many instances this can have very profound impact on the nation’s political life. The ouster of Philippine President Joseph Estrada early this year is a case in point. The move of the Philippine Congress to impeach Mr. Estrada was precipitated by a report made by the Philippine Center for Investigative Journalism, a progressive media organization, disclosing various property and corporate interests of Mr. Estrada that were not included in his statements of assets and liabilities. The disclosure caught the people’s attention and gave rise to further investigation culminating in the filing of the articles of impeachment against Mr. Estrada.

Other information may not be as explosive but are nonetheless equally important in public life. These include socio-economic data, contracts entered into by government, and the policies that government implements. When such are not fully disclosed to the public, people will have information that is too limited to base any comprehensive analysis on. Civil society performs the service of informing the public of such matters. For instance, farmers organizations get information on agricultural trade commitments made by government and bring this to their constituents, trade unions and labor advocates analyze the effects of changes in the investments and trade policies, policy analysis organizations examine the government’s fiscal and monetary policies, and so on.

Storing, sharing, and processing official information. Civil society organizations at times even have greater capacity than government in systematically storing the official information that they use. This allows them to share such information with other users, and therefore complements direct access from government.

As civil society organizations also have direct access to some of the government sources of information (such as communities and business establishments), civil society also play a key role in validating the correctness of official information.

Finally, civil society organizations, particularly NGOs and other support groups, are needed to read and interpret official information and report the same to their constituents. They translate the technical language of policy into popular forms, enabling the public to participate in policymaking more meaningfully. In the same way, they can process the concerns of the basic sectors into policy language to be taken seriously by government.

Advocating for a public access to official information act. During a recent forum(4) in the Philippines attended by NGO representatives and participated in by some legal experts, there was an emerging consensus on the need to enact a law on public access to official information. This will complement the existing Constitutional guaranty and relevant jurisprudence.

Legislation is needed to put in place a simple, speedy and effective means of enforcing the right to information. On the practical side, legislation can provide uniform condition and procedures in obtaining access to official information. Such matters as forms of request, the period for the agency to respond, the fees, the form of response, the form of information to be made available, and other matters relating to procedure and conditions of access can facilitate a simple, speedy and effective access when made definite and uniform.

On the substantive side, legislation can provide a clear penalty for the unlawful denial of access to official information. This will give the guaranty more teeth and discourage violations of the right.

Legislation can also define further the scope of the guarantee. While jurisprudence has facilitated the gradual definition of the scope of the guarantee, and has now attained an appreciable level of workability, the scope remains fluid(5). The Philippine Supreme Court itself acknowledged that there are no specific laws prescribing the exact limitations within which the right may be exercised. Even the recognized limitations are not yet clear. For instance, when they refer to confidential or classified information, who are authorized to make such classifications? What are the standards of such classification? Are such classifications subject to review by the courts?

Statutory exceptions to the right are also increasing. One question that should be raised is whether these exceptions are consistent with the Constitutional guarantee.

These issues pertaining to the scope of the guarantee can be substantively addressed by legislation. Legislation can provide with greater clarity the boundaries of the right by defining its coverage and prescribing the reasonable standards for its limitation.

Note

(1) Baldoza vs Dimaano, Adm. Matter No. 1120-MJ, 5 May 1976

(2) GR No. 72119; 29 May 1987

(3) GR No. 130716; 9 December 1998

(4) “The Peoples Right to Know: Public Access to Information and the Demands of Transparency” jointly organized by the National Institute for Policy Studies and Action for Economic Reforms on 24 August 2000.

(5) The case of Chavez vs. PCGG is a case in point. Before this case was decided, what appears from jurisprudence is that there were only two requirements for the guarantee to be available: First, that the information is of public concern; and second, that it does not fall within any recognized exception. In the case of Chavez, the second sentence of Section 7, Article III became important, that is, whether the information constitutes or pertain to a public record, an official act, a transaction, a decision, or government research data used as basis for policy development. In that case, the issue was whether ongoing negotiations or proposals prior to final agreement constitute a “transaction”. The Supreme Court ruled in the affirmative, provided they pertain to definite propositions of the government. Implicitly, the decision has introduced a third element of the right, that is, whether the information constitutes or pertain to a public record, an official act, a transaction, a decision, or government research data used as basis for policy development within the meaning of the Constitution. The full definition of this element is still open to judicial interpretation.

References:

A. Philippine Cases
-Baldoza vs Dimaano, Adm. Matter No. 1120-MJ, 5 May 1976
-Chavez vs. PCGG, GR No. 130716; 9 December 1998
-Legaspi vs. Civil Service Commission, No. L-72119, 29 May 1987
-Subido vs. Ozaeta, No. L-1631, 27 Feb 1948

B. Books and Articles
-Bernas, Joaquin G., S.J. (1996). The 1987 Constitution of the Philippines: A 　Commentary. Manila: Rex Book Store.
-Cruz, Isagani A. (1995). Constitutional Law. Manila: Central Lawbook Publishing Co., Inc.
-Fernandez, Perfecto V. (1994). Manual on Right to Information. Quezon City: Institute of Human Rights-UP Law Center.
-Malaluan, Nepomuceno A. (1998). “The People’s Right to Know.”
(2000). “The Case for A Right to Information Act.”
-Moorehead, William S. (1974). Operation and Reform of the Classification System in the United States. In Secrecy and Foreign Policy, Thomas M. Franck and Edward Weisband, eds. New York: Oxford University Press.
-O’brien, David M. (1981). The Public’s Right to Know: The Supreme Court and the First Amendment. New York: Praeger Publishers.

BACK