What Now with this FOI-EO?

Posted by cmfr | Posted in In Medias Res, Melinda Quintos de Jesus | Posted on 27-07-2016

NOT TO rain on anyone’s parade and, clearly, with no intention to bash initiatives to support freedom of information in government – the media and advocates would be remiss if we did not review the executive order and determine what response it requires of us.

So far, it has dramatized the Chief Executive as a “man of action”—a quality on which voters claimed him as their candidate and one which continues to gain him much public support.

The copy I hold of President Duterte’s executive order has no number, a pointed reminder that it is still a work in progress.  (It is now Executive Order 2)  There is work to be done, not just be government, for this motion to have any real effect.

Recall that President Fidel V. Ramos, signed EO 89 which was less detailed and provided the bureaucracy with a simple instruction for “all heads of executive departments” including all agencies, government owned and controlled corporations to implement a policy of accessibility and transparency” by requiring them to establish and post guidelines governing the procedures of its implementation. I do not think we heard much about the guidelines which suggests that the idea did not gain much traction in the bureaucracy. This may be because the public never really picked up on the idea. In recent years, the FOI discussion has made the passage of a law the prime and superior objective.

President Duterte’s EO has taken more trouble to detail the assignment of tasks, including the production of a People’s Freedom of Information (FOI) Manual which when it is completed may help the public act on their information needs.  Public discussion and engagement should precede its release.

The president instructs the Department of Justice and the Office of the Solicitor General “to prepare an inventory” of such exceptions to access which are  enshrined in the Constitution, existing law and jurisprudence.  The Office of the President (OP) will circularize this once received. Again much public discussion and engagement should precede circularization.

This is where the hard work begins. Inventories are painstaking and it will be time-consuming to collect not just the laws but also departmental circulars and general instructions.  The inventory of exceptions, to genuinely enliven the idea and culture of FOI, should have a dual purpose – which is to identify all such legal instruments that are contrary of the spirit of full disclosure and accountability so that these can be modified, amended or revoked completely.

Otherwise, the executive bureaucracy on which the EO applies delimit access to some critical exceptions because these are already in place.

One comes immediately to mind. In 2008, the Supreme Court upheld the concept of “presidential communications privilege”  which then President Gloria Arroyo claimed in her EO 464 and MC 108 and which she later revoked in response to public criticism. The Supreme Court’s decision sustaining executive privilege prevented the Blue Ribbon Committee to further inquire into the conversation between petitioner, then NEDA Director General  Romulo Neri and President Arroyo about the controversial contract between the National Broadband Network and the ZTE, a Chinese company.

We can cheer the grand gesture of the President and his team to give life to FOI.  But let us acknowledge that so far, we have not moved too far away from the gaping black hole that has sucked the life of FOI bills in the last 29 years – the restrictions to access which can be as broad and far-reaching depending on the illiberal spirit of the lawmakers.

Existing exemptions to FOI will remain the bone of contention between the advocate community and government and settling their critical differences will not be easy moving forward.  But both sides must try.

FOI law which lists too many exemptions would tend to criminalize the work of journalists whose business it is to dig out what is hidden by public officials.  A long list of ‘don’ts’ would serve to intimidate the ordinary citizen who is only now beginning to realize the power to be gained from knowing government information.

In the form of an executive order or eventually through the more expanded reach of legislation, the Duterte administration should proceed with a commitment to adhere to the principles of full disclosure, to which limitations and exceptions should be “strictly construed and narrowly defined.”