The Executive Order on FOI: A Freedom of Exceptions?
TWENTY-NINE (29) years since the first Freedom of Information (FOI) bill was filed, the transparency measure still has not made it to law. Not surprisingly, President Rodrigo Duterte’s executive order (EO) mandating access to information held by agencies in the executive branch was hailed by government officials, by FOI advocates and media organizations. When it was signed on July 23, Duterte’s 24th day in office, it was cheered as a landmark measure. Only a number of reports noted its limited scope.
The EO was at the time still incomplete. The president directed the Department of Justice (DOJ) and the Office of the Solicitor General (OSG) to provide an inventory of existing limitations that identify information that cannot be accessible to the public. As the exceptions are the critical parts of any FOI, the EO was then missing a most significant aspect.
On Aug. 28, it was reported that the Presidential Communications and Operations Office (PCOO) released to some media organizations a list of the 166 exceptions along with the PCOO draft FOI manual. At the time, this information was unofficial, but it has understandably raised concerns that the EO may actually be more restrictive of information access than the bills that have been filed, but which never passed, Congress.
CMFR called PCOO on Sept. 29 for the list of exceptions, but the office said that the list is now with the Deputy Executive Secretary for Legal Affairs (ODESLA), who is in charge of evaluating the validity of the items in the list. All legal matters and documents in the Office of the President go through the ODESLA before being released officially.
Section 4 of the EO declares that the final inventory of exceptions should be circularized “immediately” by the Office of the President. CMFR tried calling ODESLA to ask when the final inventory will be released but no one answered the calls.
Rappler posted a copy of the limitations which included exceptions of information in non-executive government agencies. Exceptions 106 to 121, for instance, are related to the rules of court, court records, and court deliberations. Exception 25 states that “Court records, including pleadings and other documents filed by litigants are confidential.”
Exception 158 has to do with legislative expenses: “Government officials cannot be compelled to prepare lists and detailed reports on how congressional funds were disbursed.”
The EO was supposed to have had a direct impact at least on the executive branch. The validation of what is included in the limitations would seem to involve a lengthy and rigorous process.
In short, the EO will have no effect at this time. The process has contradicted whatever the president may have intended to jumpstart the government’s transparency efforts. If anything, the inventory –a draft still to be finalized by ODESLA– lays the groundwork for both the Senate and the House of Representatives to study the merit of the exceptions, and to consider these in crafting the FOI legislation. This raises the possibility that whatever FOI law would pass Congress will contain exceptions so numerous the law would constrict rather than expand access to government-held information.
The Senate Committee on Public Information and Mass Media held two hearings on the FOI last Sept. 19 and 29. Committee chair Grace Poe expressed hope that the bill will be passed by the Senate before the year ends.
Considering the breadth of laws with confidentiality clauses and the 30-day period given to the DOJ and the OSG to come up with the inventory, the compilation and evaluation of the exceptions is likely to be a tedious undertaking. With the finalization of the EO still underway, follow-ups on the progress of the discussions on an FOI bill in Congress, and once such a bill is indeed introduced for that body’s approval, must be closely monitored by the media in behalf of the public’s right to know.