First of two parts

THE PUBLIC'S right to information is enshrined in the Philippine Constitution, but the absence of an enabling law has apparently enabled various government agencies and officials – including Supreme Court justices – to violate this.

Some agencies do know and observe the Constitution’s guarantee of transparency, which is a prior condition to good governance. Far too many others, however, seem stuck in confidentiality mode and require prodding and coaxing to release documents. The most hostile, in fact, simply flatly deny or altogether ignore requests for public documents.

Even journalists, who are duty-bound to ferret out the truth on matters of public concern, have not escaped such difficulties. For the last decade, for instance, the Philippine Center for Investigative Journalism (PCIJ) has been documenting all requests for information that it files with state agencies in the course of researching stories. Apart from copies of contracts, loan agreements, and data on contractors, PCIJ has found that documents on what public officials own are among the most closely guarded and the hardest to secure.

Thus far, PCIJ has recorded at least 14 cases of requests denied by 12 government agencies, with the reasons ranging from the condescending to the incredulous. This then begs the question: If journalists have a hard time accessing such information, what chance do ordinary citizens have of having similar requests approved?

One agency under the Department of Trade and Industry (DTI), for example, suggested that journalists may be infirm of motive or capacity to understand the requested data. The Supreme Court, meanwhile, argued that disclosure of the requested information (the Statements of Assets, Liabilities, and Net Worth of judges and justices) may turn the public against court officials, or put these at risk of extortion, kidnapping, and blackmail.

Such recalcitrance, though, may soon face a serious challenge should the members of the 14th Congress make history and cast an affirmative vote for transparency.

Over the last nine years, the Access to Information Network (ATIN), composed of transparency and accountability advocates, among them PCIJ, has pushed for the passage of a Freedom of Information Act to enable and enforce the Constitution’s guarantee of access to information.

The bill was left pending in the legislative wringer until last year, when the House of Representatives in plenary finally voted to enact the bill. Last week, a counterpart bill hurdled the vote of the Senate Committee on Public Information, with clear bipartisan support from administration and opposition senators. The Committee is scheduled to sponsor and submit the bill to Senate plenary vote soon.

Vote for transparency

Such recalcitrance, though, may soon face a serious challenge should the members of the 14th Congress make history and cast an affirmative vote for transparency.

Over the last nine years, the Access to Information Network (ATIN), composed of transparency and accountability advocates, among them PCIJ, has pushed for the passage of a Freedom of Information Act to enable and enforce the Constitution’s guarantee of access to information.

The bill was left pending in the legislative wringer until last year, when the House of Representatives in plenary finally voted to pass it. This week, a counterpart bill may finally hurdle the vote of the Senate Committee on Public Information, with clear bipartisan support from administration and opposition senators. The Committee is scheduled to sponsor and submit the bill to Senate plenary vote soon.

Once that happens, it may be interesting to see if state agencies and officials could nurture and observe full respect for the public’s right to know.

Article III Section 7 of the 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.”

The rules of engagement for access to information requests are also pretty simple and clear. The Code of Conduct and Ethical Standards for Public Officials and Employees or Republic Act No. 6713 states: “All public officials and employees shall, within 15 working days from receipt thereof, respond to letters, telegrams, or other means of communications sent by the public. The reply must contain the action taken on the request.”

But as things stand now, PCIJ has learned that patience is no match to the crafty, if not altogether unreasonable, resort to delay and evasion that many public officials and agencies employ toward legitimate requests for access to information.

In the most difficult cases, PCIJ has had to wait for 56 days to six months, file at least three request letters per agency, and make 18 to 21 follow-up phone calls for documents it needed for its reports. It has also had to deal with up to six different officials in the same agencies to get action or response on its requests.

Generals & justices

In 1999, the PCIJ filed a request for copies of the SALNs of generals or star-rank officers of the Armed Forces of the Philippines, with both the general headquarters and the Ombudsman for the military. It did not even merit a response in writing. Instead, PCIJ learned from defense reporters that at a command conference in Camp Aguinaldo, the generals discussed PCIJ’s request and among themselves agreed to just ignore it. More surprising, however, was the response PCIJ received from the Supreme Court, which was among the 14 cases in which PCIJ’s request for information was flatly denied. In 2006, PCIJ filed letters of request for the SALNs of the judges and justices, up the level of the Supreme Court, so these could be uploaded on PCIJ’s online database, http://i-site.ph. After all, the laws require all public officials to file their SALNs every year among the minimum requirements of transparency and accountability clauses in the Constitution and anti-graft laws.

PCIJ, however, never received a formal response from the Supreme Court. It learned that the Court had denied its request only because an enterprising reporter of The Manila Times made a story out of it. The reporter saw the PCIJ letter and asked for a specific explanation why the Court could not grant access.

The Court had responded by saying that by making the SALN public on PCIJ website, the public may use the information against the justices.

But there was more. On April 27, 2006, the Supreme Court issued a “Media Backgrounder” defining the procedure for “Request of Copies of Statements of Assets and Liabilities of Justices, Judges and Court Personnel.”

Judiciary vs access?

The “Media Backgrounder” restricts access to the SALN not only of magistrates, but also down to the last court personnel. It also states that there should be a “legitimate reason” for the request, since access to such documents could lead to fishing expeditions.

In 1992, the Court had denied the request of the Office of the Ombudsman for the SALN of two judges. The request, according to the Court, was a mere attempt to “fish for information against the said judges.”

In the “Backgrounder,” the Court reasoned that such requests could also undermine the independence of justices, and expose them to retaliation for adverse decisions, or even to extortion, kidnapping, and blackmail. The Court added, “In the few areas where there is extortion by rebel elements of where the nature of their work exposes to assaults against their personal safety, the request shall not only be denied but should be immediately reported to the military.”

In truth, much of the guidelines spelled out in the “Backgrounder” were lifted from a 1989 En Banc Resolution on the request of a certain Jose Alejandrino who wanted copies of the SALN of justices who decided on his breach of contract case.

Interestingly, the guidelines include a provision that says the Court must state “the reason for the denial” of the request – something it failed to do with that of PCIJ.

Political appointees

Two years later, PCIJ faced similar difficulties in securing copies of official personal data sheets on political appointees in Executive agencies.

PCIJ’s requests for such information were triggered by data from the Civil Service Commission (CSC) showing that agencies with either the biggest budgets or the most lucrative and sensitive regulatory and revenue functions — or both — also had the highest number of ineligible and unqualified undersecretaries and assistant secretaries.

According to the CSC, then under Karina Constantino-David, the executive departments had at least 113 political appointees of Arroyo. These included 79 undersecretaries and assistant secretaries who had not bothered to undergo exams to obtain civil-service eligibility, even as they were occupying positions reserved for career service personnel or that required eligibility.

To do the story on the record number of political appointees in the Executive branch who are mostly without civil-service eligibility, PCIJ requested various agencies for copies of the personal data sheets and resumes of the ineligible officials. More than 30 days later, only three agencies provided the data requested: the Office of the Press Secretary (all undersecretaries and assistant secretaries eligible); Presidential Management Staff (33 percent of officials not eligible), and Department of the Interior and Local Government (70 percent of officials not eligible).

The Office of the President, along with the Department of Tourism and the Department of Agriculture, denied PCIJ’s request.

Worse than mere denial, seven other agencies – Department of Energy, Department of Justice, Department of National Defense, Department of Education, Department of Trade and Industry, Department of Labor and Employment, and Department of Environment and Natural Resources — did not give any information at all.