That’s the score of the so-called “Gods of Padre Faura” – the justices of the Supreme Court – as well as those in the Court of Appeals, the Sandiganbayan, and all the judges and personnel of the judiciary. Zero in their disclosure of the full details of their statements of assets, liabilities, and net worth or SALN for the last two decades.

Since 1992, the asset records of the judiciary have remained sub rosa or secret on account of a series of self-serving resolutions that the high court under a series of chief justices had issued.

It began when the high court under then chief justice Andres Narvasa first granted virtual rank exemption for all judiciary personnel from compliance with Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees.

The Narvasa court’s decision was affirmed in subsequent resolutions of the chief justices that followed, namely Hilario Davide Jr., Artemio Panganiban, Reynato Puno, and now Renato C. Corona.

As a result, multiple requests for copies of SALNs from the high court and the appellate court that the PCIJ over the years have to this day yielded zero documents.

In 2006, the PCIJ filed a 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.

The PCIJ, however, never received a formal response from the Supreme Court. It learned that the Court had denied one of its requests only because an enterprising reporter of The Manila Times made a story out of it. The reporter saw a July 2009 PCIJ letter request for SALNs and asked for a specific explanation why the Court could not grant access. The Court told the reporter that by making the SALN public on PCIJ website, the public may use the information against the justices.

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.”

The “Media Backgrounder” is still the latest resolution of the high court restricting access to the SALNs not only of magistrates, but also that of all court personnel. It remains in force to this day.

Among other things, it states that there should be “a legitimate reason” for the request, since access to such documents could lead to supposed “fishing expeditions” by litigants and other parties against judiciary personnel.

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.”

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.

In 2009, the tribunal informed the PCIJ that the en banc had created a “special committee” to study the consolidated requests of the PCIJ for the SALNs, as well as the personal data sheets and curriculum vitae (PDS/CVs) of the justices.

Chaired by Associate Justice Minita Chico-Nazario until she retired in 2010, neither the committee nor the high court has revealed whatever came of the several hearings that the committee had conducted.

This is even as the PCIJ in October 2009 filed a 19-page pleading with the office of the Court Administrator to submit its views to the committee.

It noted that the duty of public officials to disclose their SALNs is enshrined in Section 17 Article XI & Section 28 Article II of the 1987 Constitution that declares: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.”

In the pleading, the PCIJ was represented by three lawyers adept in freedom of information issues: Nepomuceno Malaluan of the Action for Economic Reforms, and Professors Solomon Lumba and Marvic M.V.F. Leonen, at the time the secretary and dean of the University of the Philippines College of Law, respectively.

Aside from records of the 1986 Constitutional Commission, the pleading cited arguments from the records of the Senate, decisions of the Supreme Court itself, jurisprudence in the United States, and the practice of the US Federal Supreme Court to argue for full and prompt disclosure of the justices’ SALNs.

The PCIJ pleading noted that in several rulings, the Supreme Court itself held that the Constitution clearly guarantees the people’s right to access information and spells out the obligation or duty of public officials to disclose information.

Too, the pleading pointed out that high court rulings have asserted that, “when it comes to the right of the people to information on matters of public concern, the presumption is in favor of access by the public because to hold otherwise ‘will serve to dilute the constitutional right’.”

“Thus, the duty to disclose information should be differentiated from the duty to permit access to information,” the pleading said. “There is no need to demand from the government agency disclosure of information as this is mandatory under the Constitution; failing that, legal remedies are available.”

Culling Constitutional Commission records, the pleading cited this statement by the late Senator and Commissioner Blas F. Ople: “This is a mandate on the State to be accountable by following a policy of full public disclosure. For example, information concerning loans contracted by the government ought to be made available. Public officials should follow this policy by submitting their statements of assets and liabilities and making them available for public scrutiny, not merely storing them in the archives, which is what happens most of the time.”

The pleading argued that, “the principle of independence of the judiciary does not bar disclosure of or access to the SALNs of the justices.

In Duplantier v United States of America, an action challenging the Ethics in Government Act of 1978, the United States Court of Appeals 5th Circuit discussed many, if not all, of the competing interests involved.

The plaintiffs contended that the requirement for judges to file personal financial reports for public disclosure under the Act intrudes upon the independent, decisional freedom of United States judges and thereby violates the constitutional principle of separation of powers.

They further argued that the Act unconstitutionally interferes with judicial independence by subjecting federal judges to familial disquiet, political pressure, and increased threats of physical or economic harm at the hands of criminals and disgruntled litigants.

Some of the Duplantier considerations were also touched upon in the Supreme Court en banc resolution dated May 2, 1989, establishing its policy for the release of SALNs of members of the judiciary.

But the Court also noted that similar requests may not be made upon the justices and judges of the Court of Appeals, Sandiganbayan, Court of Tax Appeals, Regional Trial Courts, Shari’a Courts, Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts under circumstances that may endanger, diminish or destroy their independence and objectivity in the performance of their judicial functions or expose them to revenge for adverse decisions, kidnapping, extortion, blackmail, or other untoward consequences.

As such, it resolved to lay down guidelines on requests for SALNs of justices, judges, and court personnel, citing that, “the independence of the Judiciary is constitutionally as important as the right to information which is subject to the limitations provided by law. Under specific circumstances, the need for the fair and just adjudication of litigations may require a court to be wary of deceptive requests for information which shall otherwise be freely available.”

The Constitution, however, clearly enrolls the Supreme Court justices among the officials who must, upon assumption of office, and as often as may be required by law, “submit a declaration under oath of his assets, liabilities, and net worth.”

The Charter also stipulates: “In the case of the President, the Vice-President, the Members of the Cabinet, the Congress, the Supreme Court, the Constitutional Commissions and other constitutional offices, and officers of the armed forces with general or flag rank, the declaration shall be disclosed to the public in the manner provided by law.”

But the PCIJ pleading lamented that “the manner in which the Supreme Court has historically dealt with requests for SALNs of members of the judiciary has not always been consistent with this presumption” of the people’s right to access information.

An en banc resolution dated May 2, 1989 required SALN requesters to state the purpose of the request and outlined the conditions under which requests would be denied.

This resolution was followed by the high court’s resolution in Administrative Matter No.92-9-851–RTC, in which it turned more restrictive. It authorized the Court Administrator “to act on requests for copies of the assets and liabilities, as well as other papers and documents on file with the 201 Personnel Records of lower court judges and personnel, only upon a court subpoena duly signed by the Presiding Judge in a pending criminal case against a judge or personnel, and in the case of the Ombudsman, upon the appropriate request personally signed by the Ombudsman.”

Previous PCIJ requests for SALNs had all met with denials from the high court.
On June 6, 2006, the PCIJ wrote Clerk of Court Ma. Luisa Villarama to get copies of the justices’ SALNs, stating that “the data will be used for the PCIJ’s website on Philippine politics and governance.”

On the same day, Ismael Khan Jr., then Assistant Court Administrator and Chief of the Public Information Office, responded and enclosed a “Media Backgrounder” embodying guidelines governing the procedures for the release of the SALNs.

On August 2, 2006, the PCIJ sent Khan another letter seeking clarification on whether the request has been denied, and if so, to state the reason for the denial. If it had not been denied, the PCIJ wrote, would Khan’s office then kindly inform it of what is lacking in the request?

Five days later, Khan responded, stating that PCIJ had to “fully comply with the guidelines”; and that the Court found that the reason stated was “insufficient and hence would like to be apprised of the specific purpose or purposes for which the SALNs of the SC Justices will be used.”

On August 9, 2006, the PCIJ wrote Khan to offer a more detailed explanation about its information website, but received no response to this.

The pending PCIJ pleading before the high court averred that the wording of the tribunal’s two resolutions and the manner in which these have been interpreted and applied indicate that “whenever there is a request for SALNs of members of the judiciary, it is the burden of the requester to establish the legitimacy of the purpose of his request.”

Even worse, it said, this burden on the requester has been imposed despite “the wide latitude of discretion of the Court or its functionaries to pass upon the legitimacy of said purpose, as can be seen in PCIJ’s experience.”

“The effect is to nullify the presumption in favor of disclosure to or access by the public,” the pleading added.

To this day, nearly 25 years after the 1987 Constitution was ratified with firm guarantees of the people’s right to know, “no one has, as of yet, successfully requested from the Court the SALNs of Justices of the Supreme Court…the presumption is actually against disclosure or access.”

What follows is the paper trail (and pertinent records) of this 20-year fruitless effort to pry open the asset records of the judiciary:

1. PCIJ Memorandum/Pleading, October 2009, A.M. No. 09-8-6-SC RE: Request for Copies of the SALNs and PDS/CVs of the Justices of the Supreme Court.
2. PCIJ Request Letters for SALNs of the Justices (Supreme Court, Court of Appeals, Sandiganbayan)
   • Letter dated July 17, 2009 addressed to Associate Justice Diosdado M.Peralta, Sandiganbayan
   • Letter dated July 30, 2009 addressed to Hon. Conrado M. Vasquez Jr., Court of Appeals
   • Letter dated July 30, 2009 addressed to Chief Justice Reynato Puno, Supreme Court
   • Letter dated August 11, 2009 addressed to Associate Maria Cristina C.Estrada, Sandiganbayan
   • Sandiganbayan’s reply dated August 14, 2009
   • Letter dated August 13, 2009 addressed to Chief Justice Reynato Puno, Supreme Court
   • Letter dated August 19, 2009 addressed to Chief Justice Reynato Puno, Supreme Court
   • Letter dated December 19, 2012 addressed to Chief Justice Renato Corona, Supreme Court.
3. PCIJ Letters to the Justices of the Supreme Court inquiring about their business interests still listed in their names, as per public records available with the Securities and Exchange Commission:
   • Letter to Bersamin dated May 20, 2010
   • Letter to De Castro dated May 20, 2010
   • Letter to Carpio dated May 19, 2010
   • Letter to Corona dated May 19, 2010
4. Justices’ reply letters to the PCIJ:
   • Abad’s reply dated May 28, 2010
   • Bersamin’s reply dated May 24, 2010
   • Carpio’s reply dated June 3, 2010
   • Corona’s reply dated May 25, 2010
   • Peralta’s reply dated June 9, 2010

– Malou Mangahas, PCIJ, January 2012

The Office of the Secretary General is the repository agency of the SALNs of the members of the House of Representatives as provided in Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees) and the Civil Service Commission’s Resolution No. 060231.

Sept. 6, 2010
PCIJ Research Director Karol Ilagan sent a letter to Secretary-General Marilyn B. Yap, requesting for (a) the 2008 and 2009 SALN and PDS/CV of the 14th Congress House members, and (b) 2010 SALN (upon assumption) and PDS/CV of the 15th Congress House members. PCIJ also sent an accomplished Request Form as required by the Secretary General’s office. The request was also made as a follow-up to PCIJ’s previous requests dated October 14, 2009 and May 19, 2010.

Sept. 28, 2010
Ilagan called the Secretary General’s office to follow up on the request. She was told that the letter was forwarded to Legal (office) on Sept. 6.

Jan. 18, 2011
Ilagan called the Secretary General’s office. Ilagan was asked to visit the House of Representatives and meet with Emily, a staff employee at the Office of the Secretary General.

Feb. 10, 2011
Ilagan, along with then PCIJ Senior Researcher Che de los Reyes, visited the Office of the Secretary General upon Emily’s advice that PCIJ talk to a director. Ilagan and de los Reyes spoke with Director Roberto P. Maling who said that he will check with Secretary General Yap on the status of PCIJ’s request. He promised to call the same day. He called at around 7 pm. De los Reyes talked to him. Maling asked PCIJ to send another letter stating a “more specific” reason why it needs the SALNs. He sounded very apologetic. PCIJ’s Sept. 6, 2010 letter indicated that it is requesting the said documents for “purposes of research.”

Feb. 17, 2011
PCIJ sent a revised letter upon Maling’s instruction that a “more specific” reason be cited. In the Feb. 17, 2011 letter signed by Ilagan and PCIJ’s Executive Director Malou Mangahas, PCIJ recounted the requests it had previously made to the Office of the Secretary General. It also said that as an independent media agency, it was requesting for copies of the documents “for research and reporting purposes.” As well, the request was made so PCIJ could update its library files of the SALNs and PDS of government officials and employees. An accomplished Request Form was attached to the letter.

A copy of the letter was furnished to House Speaker Feliciano Belmonte Jr., House Committee on Public Information Chair Rep. Ben Evardone, Civil Service Commission Chairman Francisco Duque, and then Ombudsman Merceditas Gutierrez.

A staff employee of the Civil Service Commission, upon receipt of PCIJ’s Feb. 17, 2011 letter, called Ilagan; the CSC staff said that she would check if CSC has filed of the House members’ SALN.

Feb. 22, 2011
Director Maling of the Office of the Secretary General called and said that PCIJ’s request was being granted. He said that PCIJ should coordinate with Atty. Ricardo Bering of the Records Management Service in order to have the SALNs and CVs photocopied. Ilagan then called Bering to arrange for a meeting the following day. Bering agreed to see Ilagan the next day in the morning.

Feb. 23, 2011
Ilagan and de los Reyes went to the office of Bering, who seemed to act as if he and Ilagan did not talk the previous day. He even had to call Director Maling of the Secretary General’s office. Eventually, Bering approved the release of the 2008 and 2009 SALNs. Ilagan asked about the 2010 SALNs, which was included in the request. Bering said that the 2010 SALNs were not yet available. Ilagan pointed out that the 2010 SALNs referred to in the request refers to the July 2010 or the SALN upon assumption of the House members. Bering said 2010 means “as of December 2010.” Bering made this assertion even if the request was dated Sept. 6, 2010.

Bering asked Ilagan to send another letter-request for the July 2010 or the upon-assumption SALN. Ilagan and de los Reyes arranged for the photocopying of the 2008 and 2009 SALNs at MAA, a photocopying service/station just outside Bering’s office.

Ilagan and de los Reyes then went to Maling’s office to clarify the 2010 SALN request. Maling said that another request should just be made. As for the CVs, he said he would follow this up with Human Resources. He also said that if the 2008 and 2009 CVs were with Records, then these should be provided. Ilagan and de los Reyes went back to Bering and told him what Maling said.

Feb. 24, 2011
PCIJ sent a new request-letter along with the Request Form to Secretary General Yap, following instructions from Bering and Maling.

Feb. 28, 2011
De los Reyes got a text from Tyrone of MAA (photocopying service), saying that the SALNs were ready for pick up. Ilagan then asked a PCIJ intern to go the following day and get the documents.

Mar. 1, 2011
The PCIJ intern went to Records but the documents were not immediately released to her; the documents would be released only to Ilagan. Ilagan phoned Bering, who asked if the intern was authorized to get the documents. He also asked Ilagan to send an authorization letter. Ilagan sent an authorization letter. The intern was then able to get the 2008 and 2009 SALNs upon payment of P4,065. Still pending are the 14th and 15th Congress members’ CV and the July 2010 SALNs and the December 2010 SALNs, which should be available after the April 30 deadline.

Mar. 3, 2011
Ilagan called the Secretary General’s office to make a follow-up. She was told that the letter was still with Legal, where it had been since Feb. 24.

Mar. 9, 2011
Ilagan called the Secretary General’s office to make another follow-up. Emily said that Ilagan should ask Bles of Legal. Ilagan phoned Bles of Legal. Bles said that the request was still being processed. “May process kasi (There is a process),” she said. She added that a response was still being prepared.

Mar. 21, 2011
Ilagan called Legal to make a follow-up. Chona of Legal told Ilagan to call again after lunch because the person concerned had stepped out. Ilagan received mail from Rep. Maximo Rodriguez of Abante Mindanao that contained his July 2010 SALN.

Mar. 24, 2011
Ilagan called Legal to make a follow-up. Bles said the request had already been transferred to the Secretary General’s office. Ilagan then called the Office of the Secretary General. Emily said that Ilagan should talk to Director Maling.

Mar. 28, 2011
Ilagan phoned Director Maling. Maling asked Ilagan to call back because he was still looking for the file.

Mar. 29, 2011
Ilagan called Maling, who said the request was “okay.” He advised Ilagan to call Atty. Bering of Records. Ilagan talked to Hans Cortez of Records. Cortez said he would call back. He did not.

Apr. 4, 2011
Ilagan called Bering of Records. Bering said that there was still “no action taken” on PCIJ’s request. He said the files of the July 2010 SALN were not complete. He insisted that PCIJ should just get the December 2010 SALNs because these should almost be the same with the July 2010 SALNs.

Ilagan then called Emily of the Secretary-General’s office who said that the reply pertaining to the approval of the request was sent to Records on Mar. 15. Ilagan called Cortez of Records. Cortez said that Records did not receive any reply, but that he would check and call back. He did not call back.

Apr. 19, 2011
House of Representatives was closed for the entire week.

Apr. 25, 2011
Ilagan called the Records Management Service. Cortez said he received the Mar. 15 letter. But he said he was told by Bering that only the December 2010 SALNs would be provided because the difference is just months from the upon assumption or July 2010 SALN. Cortez also said that he was just following orders. Ilagan called again to talk to Bering, but he was not available.

Apr. 26, 2011
Ilagan called the Secretary General’s office to clarify things. Jane said the copy of the letter with the signature and approval of Secretary General Yap was already with Records so that’s where PCIJ should coordinate. She said the Office of the Secretary-General had already approved it.

Ilagan then called the Records Management Service. Bering was in a meeting.

Ilagan called again and was able to speak to Bering. According to Bering, it was Maling of the Secretary General’s office who said that only the December 2010 SALNs should be released. Bering said he did not see the letter with Yap’s approval.

Ilagan then called Maling. Maling asked Ilagan to give him until the next Tuesday so he could check what happened; he could then give PCIJ the right response. He said PCIJ was not the only one with a request so the “baka sala-salabat na ang response.” He also said he was not sure anymore because there were many transactions at hand. Still, Maling said that the Speaker might have also given an instruction.

May 4, 2011
Ilagan called Maling who said that he would ask Bering. Maling then called Ilagan and said that the documents would not be released. He said the his office could only issue a summary of the SALNs of the House members. He said the process was “tedious” and “huhugutin bawat isa.” Ilagan told Maling that perhaps Records could keep a separate file for photocopying in order to keep the original files in tact. Maling said that RG Cruz of ABS-CBN also made a request and that he would tell him the same. Ilagan told Maling that she will send another request. Maling said that in the future, the House of Representatives will only provide a summary of the assets, liabilities, and net worth of the House members and not the actual copies of the document. When asked why the 2008 and 2009 SALNs were released, Maling said, “Ginawan lang ng paraan ‘yung dati.” He also said, “I hope you understand.”

Dec. 19, 2011
PCIJ sent a letter to Rep. Niel Tupas Jr., requesting a copy of the SALNs of the members of the prosecution panel and the rest of the members of the 15th Congress. The letter, which was signed by Ilagan and Mangahas, also recounted the previously denied requests with the Office of the Secretary General. A copy of the letter was furnished Secretary General Yap.

Director Maling called PCIJ office around 4:30 pm. Ilagan answered the phone and greeted him “Magandang hapon (Good afternoon).” Maling said (not exact words), “Mukhang ‘di maganda ang hapon, nabasa ko itong letter mo.” Ilagan told Maling that the letter was actually addressed to Tupas. He said, “So nagsend kayo kay Cong. Tupas?” Ilagan said yes.

Maling said that if PCIJ wants the SALN of the members of prosecution panel, Ilagan should fill out and send the SALN request form, like before. Ilagan said that she can do that and send the form by fax. Maling said his office needs the original copy. He also said that PCIJ would have to pay for the reproduction cost. Ilagan said this should be okay because PCIJ always carries the reproduction cost for SALN requests.

Maling then told Ilagan (not exact words): “Akala ko ba okay na tayo dati na summary na lang.” Ilagan said, “Sir, if you would remember, we did not agree to just having the summary. I’ve told you that we’ll not stop and we’ll send another request.” Then Maling said PCIJ’s reason was “manipis.” He said that if the SALNs were needed for a database, then the summary should be okay. He said that his office did not mean to hold the documents. (The reasons PCIJ stated were for “research and reporting purposes” and to “update PCIJ’s library files.”)

Maling then asked why PCIJ needs the actual documents. Ilagan told Maling that the SALN is a public document and PCIJ needs the details of the assets, for example, not just a total figure. He mentioned “manipis” again and said that in law, disclosure of the SALN is not just for “whatever” legal purpose. He said that it’s “not absolute.” Then, Ilagan explained to him again why PCIJ needs the SALNs. Maling said that PCIJ should submit again the Request Form. Ilagan then asked about SALNs of the rest of the members of the 15th Congress. Maling said that this should be included in Request Form.

Dec. 20, 2011
Ilagan sent Maling a clarificatory letter, saying that there is no need to send yet another Request Form because PCIJ has already complied with this before.

Dec. 21, 2011
Ilagan called the Secretary General’s office to make a follow-up. Lito said Maling was already on vacation/leave. Ilagan was told to call in January 2012.

Jan. 3, 2012
Ilagan called the Secretary General’s office to make a follow-up. Emily said Maling was not in the office. She said that the letter had been forwarded to Legal.

Jan. 12, 2012
Ilagan called Legal to make a follow-up. Bles of Legal told Ilagan to call again because the person concerned (Deputy Secretary) stepped out.

From September 2010 to December 2011, PCIJ made a total of 28 calls and sent four letters to the Office of the Secretary General to obtain copies of the July 2010 (upon assumption) and December 2010 SALNs of the 15th Congress members and the CVs and PDS of 14th Congress and 15th Congress members. As of this writing, these have yet to be released by the repository agency. – PCIJ, January 2012

Advocates of the Freedom of Information (FOI) bill raised this question after Malacanang again failed to include the FOI bill in its list of priority measures during the Legislative Executive Development Advisory Council earlier this week.

In a statement sent out to media organizations, the Right to Know, Right Now! Coalition noted with alarm that President Benigno S. Aquino III had raised new concerns over the proposed Freedom of Information Act during the LEDAC meeting in Malacanang. These concerns were apparently added to the list of other reasons that Malacanang had been using to defend its refusal to endorse the bill to Congress.

Media and civil society groups have been pushing for the passage of a Freedom of Information Act for the last 14 years. The measure would give the media and the public easier access to official and public documents. In separate interviews with the media in 2010, then President-elect Aquino had pledged to prioritize the FOI as part of his campaign for more transparency in government.

The Philippine Center for Investigative Journalism is a part of the Right to Know, Right Now! Coalition and the Bantay FOI! Sulong FOI! Campaign.

The full text of the statement follows:

As PNoy defaults on FOI,
Congress must now take the lead

Kung talagang gusto, hahanap ng paraan.
Kung talagang ayaw, hahanap ng dahilan.

This is exactly where President Benigno Simeon C. Aquino III stands on the proposed Freedom of Information bill, which seeks only to enforce a constitutionally guaranteed right of the people to know and secure documents in the custody of government agencies.

The President says he supports the bill in principle, but that he has “specific questions and concerns” that he wants to be settled, before he endorses it as his priority legislation. His concerns, the President says, include his fears that FOI could unlock documents that might expose people to kidnappers, cause government losses in right-of-way cases because of property price speculations, and many other unwanted results.

Yet over the last 14 months in office, he has failed to answer and settle these concerns, and for as long a period, the FOI bill has languished in limbo.

A Malacañang study group on the FOI had told us about other, bigger concerns of the President. Through Deputy Speaker and Quezon Rep. Erin Tañada, chief author of the FOI bill in the House of Representatives, we informally and indirectly engaged the study group in constructive dialogue over the last six months.

Two critical concerns on exceptions were addressed over time in three successive drafts of the FOI bill that the Palace study group crafted – “national security” and the President’s deliberative process. These were in addition to existing exceptions in the FOI bill based on national defense and foreign affairs; military or law enforcement operation; privacy; trade, industrial or commercial secrets; drafts of adjudicatory decisions; privileged information in legal proceedings; executive session of Congress; and exceptions recognized in other statutes or the Constitution.

The legislative process practically ground to a halt, precisely because the President and his study group said they were drafting their own FOI bill. We had hoped that by the opening of the second regular session of Congress, the Palace draft would be done, and the President would have certified it as a priority measure.

We had hoped as much because we still remember: As the presumptive winner of the May 2010 elections, the President had promised to assign first priority to the FOI’s passage into law, and in June 2010, as president, he launched his government on the principles of transparency, accountability, and good governance.

This is the first time we are hearing that the President has new concerns about what he says could be the undesirable results of an FOI law.

The President assures us that he supports the FOI bill “in principle” but that because his concerns linger, he could not act on his own study group’s version of the FOI bill.

What seems like a state of principled indecision in Malacañang makes us wonder: Is the President part of the solution, or part of the problem, in assuring the passage of the FOI bill? Or perhaps neither, because he has chosen to pass up a chance to lead on a strategic policy issue that the Constitution has so clearly mandated him and all public officials to uphold and enforce – the people’s right to know.

The fate of the FOI bill was a leadership call on the President. We had not wished he would default. Yet because he has, we now refocus our efforts on the House of Representatives and the Senate, which should, without need for cue or advice from Malacañang, act now and quickly on the FOI bill.

We do so with eyes wide open that as it was in the 14th Congress under then President Gloria Macapagal Arroyo, the FOI bill could face rough, tough sailing in the 15th Congress. While Mrs. Arroyo and her allies vigorously opposed and killed the bill before it could be ratified, Mr. Aquino and his allies now seem to want to let the bill waste away, and fade in time.

THE RIGHT TO KNOW, RIGHT NOW! COALITION/
BANTAY FOI, SULONG FOI! CAMPAIGN
17 AUGUST 2011

THE apparent inability of majority of Metro Manila local governments to respond quickly and fully to citizen requests for asset disclosure records of local officials, as well as documents on education, health, public safety and other essential services may well be a reflection of the Aquino administration’s own dithering over a Freedom of Information (FOI) law.

Yet while even President Benigno Simeon ‘Noynoy’ Aquino III himself seems unsure just how much he wants his government to be transparent, the World Bank, a solicitous donor of the Aquino administration, recently released a document that explicitly proposed that the government “put forward a Freedom of Information Act for legislative approval.”
At the same time, the latest results of a transparency and accountability drive of the Department of the Interior and Local Governments (DILG) show local governments outside of Metro Manila outperforming those in the National Capital Region.

Not one of the dozens of local governments that has so far been cited by the DILG as being “ehemplo” or good examples in planning, sound fiscal management, transparency and accountability, and valuing performance information came from Metro Manila.

A recent audit conducted by PCIJ revealed poor performance by Metro Manila local governments – more than half of which are headed by Aquino’s partymates and political allies – in fulfilling citizen requests for specific documents on the most basic services.

Most made accessing documents imbued with public interest a serious test of patience, stamina, resources, and will, with many ignoring deadlines for action imposed on them by law.

DILG honor roll

Not surprisingly, not one Metro Manila local government unit (LGU) has made it to the DILG’s latest “Good Housekeeping” honor roll that lists those from Anilao, Iloilo; Balete, Aklan; Balilihan and Catigbian in Bohol; Damulog, Bukidnon; Datu Paglas, Maguindanao; Leon B. Postigo and Tampilisan in Zamboanga del Norte; Pitogo, Quezon; Mobo, Masbate; Naawan, Misamis Oriental; San Agustin, Surigao del Sur; Santol, La Union; and Sto. Domingo, Albay.

Just last March, the DILG also cited 15 high-performing LGUs, mostly from Mindanao, “good housekeeping” such as those in Alilem in Ilocos Sur; Quezon, Isabela and Saguday in Quirino; Mataas na Kahoy in Batangas; Camaligan in Camarines Sur; Banaue and Lagawe in Ifugao; Amlan in Negros Oriental; Maribojoc in Bohol; Kawayan in Biliran; Calamba in Misamis Occidental; Dujali in Davao del Norte; Cagwait and Carrascal in Surigao del Sur, and San Jose in Dinagat Islands.

These LGUs, according to DILG Secretary Jesse Robredo, have had “no adverse” report from the Commission on Audit.

The uneven observance of transparency and accountability across LGUs – and government agencies – lingers apparently because of the absence of uniformed and clear procedures on how public officials should respond to citizen requests for documents vested with public interest that a Freedom of Information Act should have offered.

In fact, just a few weeks before President Aquino delivered his second State of the Nation Address in which FOI was among the most striking omissions, the World Bank had weighed in on the issue that civil-society organizations and some of Aquino’s allies deem of utmost importance for good governance.

The Bank last month put forth in a 349-page “Philippines Discussion Notes: Challenges and Options for 2010 and Beyond” a vigorous recommendation for Aquino to see after the passage of the FOI Act if he so wishes to achieve “inclusive growth,” as well as stamp out corruption and poverty in the land.

Big challenges

The document produced by the Philippines Country Team, World Bank and The International Finance Corporation East Asia and Pacific Department, noted that the Aquino administration “faces significant opportunities as well as considerable challenges: an opportunity for new policy directions and new coalitions to push the development agenda forward with renewed vigor, but a need to overcome the inertial forces that slow down decision making and program implementation during a transition.”

The authors said the document aims “to support the creation of a shared focus among government, civil society, business groups, and development partners on the key elements of a long-term development strategy focused on inclusive growth.”

“Deliberately selective in their coverage, the Notes offer sectoral and thematic analyses to identify key challenges, and recommend a prioritized set of actions for consideration by the new government” yet also “draws on extensive international experience and worldwide best practices, as well as past experience with what works well in the Philippines and what does not,” the authors said.

They then pointed out that in the Philippines, “breaking down the hold that vested interests have over governance requires action on multiple fronts.”

Strong signal

The authors argued: “The Administration could contribute significantly to governance reform by putting up for legislative approval a Freedom of Information (FOI) Act, as neighboring countries such as Thailand, Indonesia and India have done over the last decade. In addition to being an integral part of an open governance system, the Act would also send a strong signal that the government is committed to transparency.”

Nonetheless, even before the law is passed, the World Bank document said, “the President could immediately ensure the highest standards of public disclosure in the Executive branch of government through an Executive Order.”

Aside from stressing the need for the FOI Act to be passed, the Bank also exhorted Aquino to “select a strategic agency widely perceived to be corrupt and launch a comprehensive reform plan” to provide “a credible, though not necessarily easy, starting point for a government’s anti-corruption campaign.”

Obama project

Interestingly, despite its reticence to state clearly its position on the FOI bill, Malacañang has unfurled its efforts to promote greater transparency on the world stage.

Since mid-2010, the Aquino administration, represented by Budget and Management Secretary Florencio “Butch” Abad, has signed on to and, in fact, now sits on the steering committee of the Open Government Partnership (OGP), a multilateral, eight-country initiative launched by US President Barack Obama.

Obama’s project supposedly aims “to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance.”

Under the OGP, the signatory states have committed to produce results along four benchmarks – disclosure of budget documents, disclosure of asset records of public officials, passage of an FOI Act, and engagement between government and civil-society groups.

By the admission of some Cabinet members themselves, the Aquino government may claim to have achieved some progress on the first two OGP benchmarks; on the last two, little or no progress at all.
This has prompted the Bantay FOI! Sulong FOI! network of 157 civil society groups and individuals to remark: “Malacañang must understand: Its desire to assume an honored place on the world stage as one of the leading lights of transparency in the world will not fly, unless it commits to the immediate passage of the FOI Act in the Philippines.”

Practical tips

In the meantime, the seven college student interns who helped conduct PCIJ’s audit of transparency regimes in Metro Manila have drawn up some practical tips for those who may want to access information from LGUs in the absence of an FOI law:

• Put your request in writing. Most local governments require requests for information be put in writing. Many also want the request to contain the name of the person or agency making the request, as well as the purpose for the request. The City of Navotas, for instance, even has a memorandum that explicitly asks for these.
• Verify beforehand which department would be handling your specific request. Otherwise, one may well be passed from office to another, and then from one personnel to another. To save time and spare one of fits of frustration, check the LGU’s website first to see which office or official would be best to handle the request, or call or visit the LGU’s information office before writing and submitting your request letter.
• Note the name and position of the staff member who received the request. Misplaced letters and sudden attack of amnesia abound in LGUs when follow-ups are made regarding requests for information. To avoid being passed around from one staff member to another, one should record right away the name of the personnel who received the request and, if possible, that person’s contact number. It may also be wise to do this in his or her presence, with other staff members as witnesses.
• Check beforehand for dress codes, as well as specific protocols and procedures. Such information is usually available on the LGU’s website. One can also call the LGU prior to submitting the letter of request. Some LGUs do have uniform procedures and processes. Parañaque, for example, requires that all letters of request be addressed to the mayor first for approval. In Marikina, guards bar those in shorts and/or slippers from entering its city hall.
• Be aware of the time limit imposed by law on LGUs to comply with requests for information. Remind LGU personnel as well of such deadlines since they may not be aware of it themselves. Under the law, LGUs are given10 working days to act on requests for Statements of Assets, Liabilities, and Net Worth (SALNs) and 15 working days to act on requests for all other types of documents.
• Do follow-up calls. This will not only alert LGU personnel of your continued interest in your request, but will also remind them constantly of the need for them to act on it. If there is some delay, ask the reason for it; it may well be that the next step requires another letter to another office. Always ask the name of the staff handling the call, so that there is a “personnel trail” established while you track the progress of your request.
• Once the documents are provided, double check if these contain all the information requested. Just because an LGU hands over a hefty volume of paper does not mean those data sets have all that you asked for. Go over the documents before leaving the city or town offices. If there is any information lacking, ask why. It could well be that another office is responsible for a particular piece of data that had been part of your request.
• An incomplete response calls for a follow-up letter. Should there be no response within the period set by law, submit a follow-up letter reminding the LGU of your request – as well as the LGU’s duty to act on it within the legal deadline. (After receiving such a follow-up letter from PCIJ interns, the Office of the Mayor of Muntinlupa called within the day to say that the information could be had from the City Planning and Development Office.)
• Be nice and keep your cool. It may be the LGU’s duty to serve the public, but any transaction is easier to accomplish when the atmosphere is kept pleasant. For sure, a smiling citizen’s request is more likely to be processed quickly while a demand that comes with a snarl is bound to be treated with contempt and left unattended as a result. – With additional research by Anne Jeanette O. Priela, Krystal Kay S. Jimena, David Faustino T. de Castro, Essen Mei M. Miguel, Henor G. Gotis, Eric H. Rivera, and Stephanie Directo, PCIJ, July 2011

POLITICS and government, business and finance, education and culture. In all these and more, the national capital region, Metro Manila, is supposed to lead the rest of the nation. Here, bureaucrats and politicians thrive, mostly schooled and steeled in the art of governance and advisedly, the liberal ramparts of transparency and accountability.

It seems fair for citizens to expect that in Metro Manila, more than anywhere else in the Philippines, the people’s right to know and to access official information and documents would be respected. But that could well be plain wishful thinking for now.

Indeed, while President Benigno ‘Noynoy’ C. Aquino III has once more failed to reiterate a commitment to freedom of information (FOI) in his latest State of the Nation Address, the results of a recent survey by the PCIJ of access to information practices in the 16 cities and sole town of Metro Manila show that majority of the local officials and employees in these Metro Manila local government units (LGUs) continue to linger in the dark ages of closed, opaque government.

Most of the LGUs, in fact, took their sweet time in responding to requests for specific documents, unmindful of deadlines for action set in law. And if they did act at all, they disclosed only some, not all, the documents requested. The city of Caloocan even recorded net zero action, failing to take full action on any of the requests up until the end of the audit. This was even though that city’s officials had approved, orally and in writing, at least a third of the PCIJ’s requests.

Documents for citizens

Beyond simply tracking the transparency regimes obtaining in NCR, the PCIJ audit purposely zeroed in on documents with great and grave impact on the welfare of the citizens. From April to June 2011, the Center deployed seven college student interns who filed requests for six major types of documents, including the asset disclosure records of the LGU officials, as well as the budget and development plans of the LGU. The audit also focused on documents pertaining to education, health, public safety, civil registry and property, and doing business.

Surprisingly, however, the most basic documents regularly produced by LGUs proved the most difficult to get. For instance, among the 17 Metro Manila LGUs, only Makati gave complete documents on education, while a mere four – Quezon City, Parañaque, Navotas, and the San Juan Health Department Unit 1 – provided complete documents on health.

On average, only a fourth of the 17 LGUs provided their development and investment plans, and copies of the proposed and enacted budgets. The rest took no action.

Still, of all the documents requested by the PCIJ, the statements of assets, liabilities, and net worth (SALNs) were easily the most tightly guarded and thus, the hardest to obtain. In the mold and manner of national politicians, the local politicians of Metro Manila apparently hold their asset disclosure records close to their chests.

Only two cities – Marikina and Makati – willingly shared the SALNs of all their local officials. Quezon City and Navotas, meanwhile, gave the SALNs of their respective mayor and vice mayor, but came up short when it came to those of their councilors. San Juan released its vice mayor’s SALN, but not its chief executive’s; it also gave incomplete asset records of its councilors. In the rest of the LGUs, the SALNs remain sub rosa or kept under lock and key by local officials who insist on their confidentiality, in apparent indifference to, or ignorance of, the law.

Most LGUs also required requestors to secure the mayor’s approval before all the requests could be granted. This caused bureaucratic delays and most probably is a major barrier to accessing documents in the NCR.

Least opaque

In the PCIJ audit, not one of the LGUs provided all the requested information. Even Quezon City, which came out as the friendliest to access to information requests, took full action (within the 15 working days’ deadline in law for all the documents requested) on only 75 percent of all requests filed by PCIJ.

Next came Marikina, which scored 57 percent, while Pasay, Parañaque, Navotas, and Makati all granted about half of all of PCIJ’s requests. Ten other LGUs (Las Piñas, Pasig, Mandaluyong, Muntinlupa, Taguig, Valenzuela, San Juan, Malabon, Manila, and Pateros) acted only on 12.5 to 37.5 percent of all requests filed.

On average, the LGU offices that gave documents took about 10 days to do so. But the Business Permits and Licensing Office (BPLO) of Las Piñas stood out by taking only a day to respond and provide complete documents related to doing business in the city.

To do the audit, the PCIJ interns personally filed simultaneous request letters for documents with the 17 LGUs, monitored all related follow-up activities (request letters sent, phone calls and field visits made to the LGU office), and logged all activity details (name and position of responding personnel and officials, speed and nature of action or referrals made; and the type or nature of documents given or withheld).

In addition, the enrolled deadlines set in law for government agencies to act on such requests – 10 working days to act on requests for SALNs and 15 working days to act on requests for all other types of documents – were used as reference for rating the performance of the various LGUs in this audit.

The audit stretched across a two-month period – one month for fieldwork and data gathering, and another for follow-up activities and data collation. In all, the PCIJ interns filed with the 17 LGUs a combined total of 135 request letters, made 437 phone calls, and received 266 referrals for many requests were tossed around two or more offices in the same LGUs.

The requests were filed with the LGU departments and units that are the custodians of the documents, including the Office of the Mayor, the Health Department, the Public Order and Safety Department, the Business Permit and Licensing Office, and the Civil Registry Department.

Public interest

The documents requested are clearly imbued with public interest because they enroll information and data that should benefit public weal and welfare:

• For education, the PCIJ asked for two sets of data: statistics or the number of schools and teachers in each LGU, as well as on plans and projects to construct new school buildings, hire new teachers, and acquire new learning materials and copies of contracts.
• For health, the PCIJ requested information on the actual expenses the LGUs spend on medicines and the volume of medicines distributed per barangay; number of hospitals and medical personnel; and projects undertaken by the health department.
• For public safety, the PCIJ sought data on the number of police officers and other public order personnel, how the police coordinate with barangay officials, how the police or barangay respond to cases, protocols on public-order incidents, and the number and the amount LGUs spend to build and maintain lampposts.
• For civil registry and property, the PCIJ asked about the types of civil registry and property documents, how to obtain these documents, fees and timetable involved in obtaining documents.
• For doing business, the PCIJ requested details on the documentary requirements, request and application process, LGU departments in charge, number of processing days, and fees involved. In addition, the PCIJ sought information on how to locate records of a business establishment, which office tracks records of registered and non-registered businesses in the LGU, and the benefits of registering a business.
• For other basic, premise data on the LGU and its officials, the PCIJ requested five documents: the SALN and personal data sheet (PDS) of the mayor, vice mayor and councilors; local development plan; local investment plan; proposed budget; and enacted budget.

How and why the citizens must be entitled to these documents, and could benefit from them, are matters affirmed in law and validated by the contents of the documents themselves.

The Local Government Code of 1991 mandates each LGU to prepare a local development plan and a public investment program, which would outline a city or a municipality’s development and budget priorities and serve as basis of its programs and projects for the year.

Useful details

These documents would significantly help citizens to understand the local government’s plans for the city and the barangays and how it intends to spend public resources. These documents would clearly enable citizen participation in policymaking and governance.

For instance, the 2011 Annual Investment Program (AIP) provided by Quezon City states that the city’s development priorities are disaster-risk mitigation, environment management, socio-economic services to empower the poor, tourism development, and effective city management.

To achieve these plans, Quezon City’s AIP outlines its budget allocation for each program, project, and activity, as well as the office or agency assigned to implement each sector.

For 2011, Quezon City has allocated P15.75 million for maternal health care for pregnant and post-partum mothers, and routine care for newborn infants. Residents, especially mothers and expectant mothers who do not have enough funds to avail themselves of private health care services, would find this information useful.

Quezon City has also allotted P2.49 million to provide services to physically, mentally, and socially disabled persons 0 to 60 years of age in order to enhance or develop their capabilities for self-reliance and productivity. Families with a disabled member may then inquire about this program and seek assistance from Quezon City’s Social Services Development Department.

In the meantime, citizens may find information pertaining to education useful so that they themselves can assess and audit education projects of their LGUs.

Makati, which was the only LGU that provided complete documents on education services, gave copies of the contracts that the city government signed with contractors to build new school buildings and to improve or maintain existing ones.

The contracts offered details on the amount of the project, project scope and timetable, and the duties and responsibilities of the contractor. With these data on hand, parents of students in a school may actually be able to check if the project had been fully implemented.

And then there are the SALNs, which are considered to be key in monitoring the wealth of public officials and in discouraging corruption. Yet most Metro Manila LGUs found reason to keep SALNs of certain officials away from the public eye.

The officials of Malabon’s Human Resource Department, for one, insisted that SALNs are “confidential” documents. Navotas, for its part, was quick to approve the release of the SALN of the mayor, but uncertainties on the part of the councilors resulted in their failure to hand over their SALNs.

Pasay was as problematic in the release of the SALNs and personal data sheets of its senior officials supposedly because the request letter had been misplaced.

In Pateros, the head of the Municipal Personnel Office said all 14 town councilors would have to unanimously agree first before any of their SALNs could be released to the PCIJ. Some councilors agreed, while the others refused. Because the personnel officer has imposed an all-or-nothing rule, not a single SALN of Pateros’s local executives was released.

(By contrast, Marikina, which ranked second to Quezon City as the most transparent city in NCR, provided the SALNs of its local executives within just five days from receipt of the PCIJ request.)

Most opaque

The four least transparent cities (Malabon, Manila, Pateros, and Caloocan) actually shared one thing in common: Their personnel showed a common tendency to refer requestors to other LGU departments within the same city halls, needlessly prolonging the process of obtaining documents.

In quite a few cases, too, many LGU personnel seemed totally clueless about their obligations in the Constitution and in Republic Act No. 6713 (the Code of Conduct and Ethical Standards for Public Officials and Employees) to be transparent in all their actions involving use of public funds, and in handling documents vested with public interest.

In Caloocan – the least transparent among the Metro Manila LGUs — only the police department and the civil registry office responded to the requests within the 15-day deadline set in law. All the other agencies of Caloocan either ignored or denied the other requests.

Unfortunately, even the offices there that promised to release documents, including those on education and health services, and those pertaining to doing business in the city, have yet to do so as of this writing. The police department in particular said it had misplaced the PCIJ’s request letter, causing interminable delays.

In Pateros, NCR’s lone municipality, the PCIJ filed requests with eight various departments. The town’s civil servants generally had an accommodating demeanor, but this failed to compensate for the insufficient documents they eventually released. Four offices took action but only one gave a complete set of documents requested. Pateros ended up being the second least transparent LGU in NCR.

Manila, NCR’s oldest and premier city, is the third least transparent. While its officials approved action on 57 percent of the PCIJ’s requests, they actually gave complete documents on only 14 percent of all requests filed.

The PCIJ sent request letters to seven offices of Manila City Hall but only four responded within the 15-day deadline set in law – the Mayor’s Office (SALNs), the business department, the City Civil Registry, and the assessor’s department. Manila’s police and health departments have yet to respond to the PCIJ’s requests, while the mayor’s office has yet to act on a separate request for data on education services.

Malabon, the fourth least transparent city, actually approved up to 83.33 percent of the PCIJ’s requests within four to 11 days. But it released the complete documents requested for only 16.67 percent of the requests, within the lawful deadline.

Malabon and Pateros cited the “confidentiality” status of certain documents for refusing the requests.

Among those that performed better than the bottom dwellers, the need for the mayor’s go-signal before certain documents are released was revealed to be a major block for those seeking access to public data. In Parañaque City, Mayor Florencio Bernabe Jr. had even issued a memorandum that in effect gave him sole power to approve all requests for information. The memo was supposedly based on a provision in R.A. No. 6713, which states that public offices are given the discretion not to disclose any information on the grounds of public safety and “undue advantage.” Out of the 10 requests that the PCIJ filed, only five were granted within 15 working days.

Politics & revenues

The practice in Parañaque prevails as well in Taguig, Pasay, Las Piñas, Mandaluyong, and Navotas even as no written memorandum requiring the mayor’s approval has been issued.

In Pasig, basic documents and those pertaining to education services could not be released simply because during the month-long data gathering for this audit, Mayor Bobby Eusebio was often out of the office. His deputies said there was no definite schedule when he would report for work.

Political rivalry also got in the way of accessing documents in Taguig. Majority of the requests were denied there supposedly because the documents had to be kept “confidential” on account of an ongoing court case between Mayor Laarni Cayetano and her losing rival in the May 2010 elections, retired Supreme Court justice Dante Tinga.

Only the documents from Taguig’s BPLO, the Assessor’s Office, and the City Health Department were provided. Requests filed with the Mayor’s Office, the Public Safety and Order Office (POSO), and the City Budget Office were not granted within the 15-working day deadline set in law.

Documents pertaining to civil registry records and on doing business in Metro Manila were the easiest to secure across the metropolis. In fact, all 17 LGUs provided information on various civil registry and property documents, as well as the procedures, fees, and number of days it would take them to process requests.

As for doing business, 14 of the 17 LGUs gave information on the documentary requirements, the process for applying for business permits and registering business establishments, and the fees involved. In many cases, the data were enrolled in brochures and pamphlets published by the LGUs.

These two offices (Civil Registry and BPLO) conduct regular transactions with citizens every day; releasing documents thus seems almost routinary to them. In addition, these transactions are triggers of revenues (processing and permit fees) and take on the nature of business processes beneficial to the LGUs. - With research and reporting by Karol Anne M. Ilagan, Anne Jeanette O. Priela, Krystal Kay S. Jimena, David Faustino T. de Castro, Essen Mei M. Miguel, Henor G. Gotis, Eric H. Rivera, Stephanie Directo, and Jessa Mae B. Jarilla, PCIJ, July 2011.

THE Judicial and Bar Council (JBC) was purposely created by the 1987 Constitution to depoliticize and to open up to the citizens the screening of nominees and appointments to the judiciary.

To achieve this, Associate Professor Dante B. Gatmaytan of the University of the Philippines College of Law says the JBC should have looked with favor at full transparency – in the conduct of its processes and in the handling of all its records – as both premise and armor of its grave mandate.

Created by the 1987 Constitution, the JBC is 24 years old but still, it seems to be taking only baby steps. Its transparency and access to information practices continue to swing from close to open, then close again, regimes.

In recent years, buffeted by demand from civil society groups that have zealously monitored its work, the JBC has opened up its processes and records somehow. Yet soon after the demand has died down, and the citizens have stopped looking and asking, it reverted to just token disclosure of the details of its work.

On July 23, 2010, in a letter to the Supreme Court Appointments Watch (SCAW), a network of alternative law and transparency groups, the JBC disclosed “excerpts of the minutes” of its en banc meeting that offered data on which JBC members voted for which nominees to a vacancy in the Supreme Court then.

The letter signed by JBC executive officer Annaliza S. Ty-Capacite, said that the JBC “also agreed to your (SCAW’s) proposal to have the voting records posted (on) the JBC website, but only after the approval by the Council of the minutes containing the said record.”

Months later, the JBC would hold new rounds of screening for nominees to three vacancies in the Court of Appeals, and another in the Sandiganbayan.

By yearend, as it had assured SCAW, the JBC posted on its website (http://jbc.judiciary.gov.ph/) “result of voting” reports that disclosed only the tally of votes that the nominees got. Curiously missing were the more instructive details that SCAW had wanted and which the JBC had promised to share – which JBC members voted for which nominees.

Transparency test

UP law professor Gatmaytan sees transparency as a major test of how judicious the JBC conducts itself vis-à-vis its constitutional duty to allow the citizens front-row seat to the screening of candidates to plum posts in the judiciary.

Gatmaytan had recently co-authored with wife and Northeastern University graduate student Cielo Magno a seminal study titled “Averting Diversity: A Review of Nominations and Appointments to the Philippine Supreme Court (1988-2008)” that was published in the Asian Journal of Comparative Law.

He says: “The JBC was created in response to the politicized selection of justices. Under Martial Law, there was no check on the president’s power to appoint and it was said that most of his appointees did not satisfy the minimum requirements. They were mostly classmates of fraternity brods, and there was no intervention on the part of the public.”

Lawyer Nepomuceno A. Malaluan of the Right to Know, Right Now! Coalition of 160 groups and individuals pushing the passage of the Freedom of Information bill, could not agree more.

Transparency, he says, is the only effective check on the tenuous “balance of power” among the three branches of government that are all represented in the JBC.

“One way to remedy the imbalance is to let sunshine into the JBC to facilitate greater public scrutiny of its performance,” Malaluan says. To achieve this, the JBC “must be committed to providing the largest measure of transparency and public access to its processes and to the documents under its custody, both pertaining to the applicants and to the JBC actions.”

By its own rules, the JBC screening process starts with an open call for applications and recommendations (and submission of the nominees’ personal data sheets or PDS and other documents), publication of the list of nominees, public interviews with the nominees, executive or closed-door sessions of the JBC members, and finally, a public statement on the summary of votes that the shortlisted nominees obtained from the eight-person JBC.

As soon as the JBC has submitted its shortlisted nominees – at least three for every vacancy – the President may choose his appointees to the court within 90 days.

Not quite open

At critical points in the process, however, the JBC seems to be swinging from open to close regimes of conduct. It holds public interviews with the nominees but bans the recording and broadcast of the proceedings by the news media. It reveals some data about the nominees but routinely rebuffs requests of citizens’ groups for copies of many other documents that reveal more details about the nominees.

The JBC keeps under virtual lock and key those that reveal more than just the educational background and work history of the nominees, the details of their business, financial, and political connections.

Apart from the PDS, under the JBC’s rules the nominees and applicants must submit sundry documents – income tax return for the last two years; current year’s clearances from the National Bureau of Investigation, Ombudsman, police, place of residence, Integrated Bar of the Philippines (IBP), Office of the Bar Confidant, and employer; certificate of good standing or latest official receipt from the IBP national treasurer; affidavit that the applicant was not a candidate in the immediately preceding election; proofs of age and Filipino citizenship; results of medical examination and sworn medical certificates; and statements of assets, liabilities, and net worth (SALN) for the past two years.

“Those who fail to comply with the requirements shall not be considered for interview nor considered for nomination,” the JBC has advised.

Tricky matter

The last document in the list, the SALN, is assuredly a tricky matter for the JBC to decide, especially for those nominees coming from the judiciary. Jurists made up nearly six of every 10 applicants that the JBC had screened from 1988 to 2008, according to Gatmaytan’s study.

But since 2006, the Supreme Court has enforced a policy restricting access to the SALNs of all justices, judges, and down to the lowest ranked personnel of the judiciary. This policy, the high court had explained in a “Media Backgrounder” paper, seeks to spare and protect the members of the bench from possible harm and blackmail that could come from irate litigants.

Thus, it would seem like wishing for the JBC to disclose the SALNs of the nominees to the judiciary from the judiciary is whistling in the dark. The JBC and the Supreme Court share just one chair and presiding officer – the chief justice. In addition, two of the seven other JBC members are retired justices.

Apart from the SALNs, citizens’ groups have sought copies of the other documents that the nominees have submitted to the JBC. Invariably, their requests have been met with token action, indifference or outright denial.

Gatmaytan knows as much. For his and his wife’s study on the work of the JBC in its first 20 years of existence, he had tried but failed to unlock doors to JBC documents. “The JBC was created to depoliticize and open up the selection of justices but it is even more secretive now,” he tells PCIJ in an interview. “(As) others have explained,” he writes in his study, “the likelihood of obtaining documents from the JBC is ‘practically nil’ as requests for data are repeatedly turned down.”

More than just accessing documents, he stresses a need for the JBC to respect the public’s right to know. “It goes back to the question of how much we know about the nominees, from the beginning… and it’s clear they got in not because they are relatives or friends but because of objective standards”

The worrisome cases, he adds, are when the public is not informed “if the nominees are related to the members of the JBC,” or could face “potential conflict of interest situations,” especially for those coming from the private sector, or have been remiss in filing asset disclosure statements, especially for those coming from the public sector.

A better informed public, Gatmaytan says, may appreciate the work of the JBC more. “If the process is clear and open to the public, the selection system becomes more legitimate to the public, and the results more acceptable to the public.”

Must know more

In contrast, resorting to secrecy is a path to confusion and failure. He says: “If we keep everything secret, which is how the JBC seems to view its work from the very beginning, keep the public out of it and have nobody involved… it erodes our confidence in the selection process and creates more problems.”

In Gatmaytan’s mind, the JBC should uphold the public’s right to know more about those who would later sit as judge over their lives, rights, and welfare. “We can find out more about the nominees if we are allowed access to their background and more data other than their age, present job, or from which law school they graduated, which are already reported in the news.”

Knowing more about those who would be jurists or Ombudsman is a first step, he says, for citizens “to be more concerned about the quality and diversity” of the courts.

To be sure, Gatmaytan affirms that the JBC’s public interviews afford the citizens a chance to see and listen to the nominees. But these forums also have become no different from the sneak previews or trailers that are shown in movie theaters, with the citizens allowed only to watch in silence.

This is because during the interviews, only the eight JBC members can ask questions. And while the proceedings are documented in writing, cameras and tape recorders are banned, and live TV and radio coverage disallowed.

And although the interviews are open to the public, Gatmaytan says those who have attended the events have raised some observations: the questions are not probing enough, and the interviews seem to be rushed, especially when the JBC has to deal with so many nominees racing after the same plum positions.

Two selection proceedings have been launched of late by the JBC – for nominees to two vacancies in the Supreme Court, and for the position of Ombudsman. Already 28 persons have applied or been recommended to the high court positions, and 32 others, to the Ombudsman’s job.

Once the public interviews are done, public access to the JBC virtually ends as the members repair back to executive sessions. They are furnished the “reports of the interview” that the JBC secretary is instructed to keep secret. “The reports are hereby declared strictly confidential documents which shall be available only to the Members of the Council,” states the JBC’s rules.

Off-limits, secret

With the confidential reports on hand, the JBC members then meet behind closed doors to “draw up” their short list of nominees. They vote using numbered ballots, and the results are tallied by the JBC secretary.

This most critical phase of the JBC’s work remains sub rosa or secret and off-limits to the citizens. Afterwards, the JBC issues a public statement on the “result of voting” for the nominees, sharing only what they like to share with the public.

In July 2010, they disclosed who they voted for; in November 2010, they revealed only the tally of votes that the nominees got.

Rep. Niel Tupas, Jr. of Iloilo, who sits in the JBC as chairman of the House of Representatives’ committee on justice, says that he had been told that the JBC has been disclosing how its members voted. This was decided, he adds, on motion of the late Jay Castro, until his recent death the JBC representative of the Integrated Bar of the Philippines or IBP.

Gatmaytan says that it would do the JBC well if it observes full transparency and disclose how its members voted so the citizens may know why some nominees had been shortlisted and others not. Tupas says he agrees absolutely, adding that he will try to do what he can to open up the JBC process some more.

More reforms

To vote openly and to disclose their vote. At the very least, this is what the JBC members owe the citizens, according to lawyer Malaluan. “The process of appointing justices and judges is critical to the independence and competence of the judiciary. The same is true for the appointment of the Ombudsman.”

But Malaluan says there’s a lot more that the citizens deserve from the JBC. During the nine-year rule of Gloria Macapagal Arroyo, he cites that SCAW and the Bantay Korte Suprema – which drew law schools and media agencies as partners – have mounted vigorous scrutiny of the JBC. The result: numerous proposed reforms for the JBC to do better by the citizens.

These included, Malaluan says, stopping the practice of reappointing regular members

of the council, limiting to three the number of nominees for each vacant position (as required in the Constitution); implementing a more transparent evaluation system; adopting an open voting policy; and rejecting lists of JBC nominees returned by the President without appointment.

Apart from these reforms, however, the monitors of the JBC’s work point to even bigger concerns that are more difficult to settle as quickly. They lament the seemingly qualitative flaws, undefined standards of “the principles of integrity, excellence and competence” against which the JBC members must measure the nominees, or even the backroom wheeling-dealing that sometimes still mar the vote for or against certain nominees.

More research

Leslie Flores of the Transparency and Accountability Network (TAN) that is coordinating the SCAW initiative observes that the JBC seems to lack the people and skills to do “thorough research” into the background of the nominees. The result is a JBC that tends to go easy on job applicants to the judiciary.

In her September 2009 article titled “Lessons from US Supreme Court Appointments: A Quick Look at Justice Sotomayor’s Experience,” Flores compares that when U.S. President Barack Obama nominated Sonia Sotomayor to sit as the first Hispanic and third woman justice of the 200-year-old U.S. Federal Supreme Court, her public and private backgrounds were fully unearthed by officials from the White House, the U.S. Justice department, as well as the Federal Bureau of Investigation. This rigorous pre-screening scrutiny of the nominees does not happen in the JBC, she avers.

Instead, in the JBC’s public interviews, Flores says all the nominees are asked mostly “standard” questions such as their “reason(s) for applying as Supreme Court Justice, their concept of justice, judicial philosophy, their view on the expanded jurisdiction of the Supreme Court… (their) most important contribution to the Supreme Court… how the JBC can improve its processes.”

Indeed, specific questions have been raised, including “Charter Change, Executive Privilege, death penalty, and other current issues.” The candidates have also been asked about their “achievements, expertise… significant cases they have handled…their judicial performance.”

Apart from unraveling the hopes, the wishes, and the self-image of the nominees, however, these questions do not reveal as much background and critical data that may later trigger real or potential conflicts of interest, or offer more insight into the character of the nominees.

Opaque standards

Malaluan sees another gap in the JBC’s work: the standards or measure of why JBC members vote for or against the nominees. “One of the most crucial demands is opening up the evaluation system of the JBC… clearer and standard evaluation system for opaque qualifications such as competence.”

Then, too, he says, the “balance of power” in the JBC that draw representatives from all three branches of government bears constant monitoring. “Through the JBC, the President’s choice is restricted to the list of nominees prepared by the JBC,” Malaluan says. Yet how, indeed, could one branch be stopped from dominating the two others so the integrity and independence of the JBC may be preserved?

There is need, according to Malaluan, for all sorts of “checks” that to prevent this, even as “the balance of power over the composition of the council has tilted in favor of the President” who appoints the four regular members, as well as the Justice secretary.

By sheer tyranny of numbers, too, the pro-administration ruling party or coalition in the Senate and in the House of Representatives, get to appoint the chairs of their committees on justice – who in turn get to sit in the JBC. Too often, these committee chairs would be party allies of the president, too.

The unhappy result, Malaluan says, is some nominees have resorted to pulling strings with some politicians. “With the balance of power in the JBC tilting in favor of the President, applicants for vacant positions in the judiciary and the Ombudsman vie for the endorsement of influential politicians, with those close to the President enjoying a premium.”

Ironically, the JBC has crafted for itself a lofty vision. Its marker at the Supreme Court’s Centennial Building proclaims that it wishes to become “a JBC that is independent, efficient and a proactive sentinel of judicial service, guided only by the principles of integrity, excellence and competence; unfettered by the shackles of friendship, relationship, or other considerations, thus vesting the cloak of Magistracy on those who will best dispense justice for all.”

Additionally, in its mission statement, the JBC promises among other things, “to promote transparency and public awareness of matters involving the nomination process in the Council,” as well as “to insulate the nomination process from undue influence of any kind.”

In theory, the JBC seems certain about where it wants to go, yet also in practice, unsure how to get there. In its 24-year life, it has fluttered from a closed to a somewhat open, then back again to a closed regime of transparency and access.

The next few weeks will test the JBC’s practice. It will soon resume screening nominees to two vacancies in the Supreme Court, and to the Office of the Ombudsman, under a new regime that embraced transparency, accountability, and good governance as its battle cry. – PCIJ, May 2011

Less than a year ago, Manuel L. Quezon III was a columnist and television analyst. Although he had worked earlier as a consultant for the presidential museum, there was no doubt where his heart lay when it came to the Freedom of Information Act.

In his column and blog, he cited quotes from an FOI advocate he had interviewed and fired broadsides against the leadership of the 14^th Congress for resorting to “little stunts” to scuttle the FOI bill.

These included, Quezon wrote in a Jun. 5, 2010 blog post, the switching off of microphones to deny FOI authors voice and volume at the session hall, “mysterious text message urging congressmen not to show up at the House to prevent a quorum… a verified memorandum from the Secretary-General of the House urging committee staff to pack the galleries in anticipation of a mobilization by supporters of the FOI,” and “the publication of the House agenda placing the FOI at the bottom of its order of business, instead of first in line as befits a priority measure.”

“As it turned out,” wrote Quezon, now undersecretary of Presidential Communications Development and Strategic Planning, “the grim expectations of the supporters of the FOI were fulfilled when the session was gaveled to a close when the quorum was questioned.” This took place on the last session day of the 14^th Congress, which was partial to Aquino’s predecessor, Gloria Macapagal Arroyo.

The FOI advocate, Quezon added, “suggested that the House leadership had second thoughts because of the Law of Unintended Consequences… where a seemingly harmless but fashionable legislative proposal ended up scuttled because its implications started to sink in.” In other words, according to Quezon, “it’s scorched-earth complexed with sandbagging.”

Then, there was no denying Quezon’s vigorous push for the FOI. He had so declared in an earlier blog on May 22, 2009, and insisted on bigger and deeper guarantees of access. He said good record-keeping by government agencies should that be a requirement, and that even “concepts like Executive Privilege” should be reviewed.

Quezon wrote: “I support a Freedom of Information Act but with the understanding that it may be very much a Dead Letter even if enacted. Its effectiveness will depend on an institutional awareness of the importance of record-keeping, and the safeguarding of official records – which brings up the problem that much of what is of public interest is not being recorded at all.”

“Minutes of official meetings, and institutional diaries and so forth,” he added, “not all government agencies are created equal in this regard and even those with a tradition of record-keeping, have their records protected by new interpretations of existing laws or concepts like Executive Privilege. This can only make getting to the bottom of current events even more difficult than it already is.”

Like Quezon, Communications Secretary Ricky Carandang had spoken and written fairly much in favor of the FOI before he became part of the Aquino Cabinet in July 2010.

Then a broadcaster and blogger, Carandang in one tweet even lamented the defeat of the FOI bill in the 14^th Congress. He wrote: “RIP Freedom of Information Bill. Died 4 June 2010.” – Jaemark Tordecilla, PCIJ, May 2011

WHEN THE 15th Congress opened last June, there seemed to be renewed energy toward passing the Freedom of Information (FOI) Act, which had floundered in the legislature’s previous incarnation, just when transparency advocates had thought it was about to be ratified.

In the House of Representatives, Quezon representative Lorenzo ‘Erin’ Tañada III, a staunch FOI advocate and a member of the Liberal Party, convened a technical working group to jumpstart the process.  At the other end of the metropolis, the Senate committee on public information, chaired by Senator Gregorio Honasan, held a hearing to discuss the bill.

But the momentum to pass the measure has since fizzled and the Aquino administration’s flip-flop on the bill appears to be the main cause of the lack of legislative activity on it.

That flip-flop, in turn, apparently comes from wariness, if not fear, from within Malacañang that an FOI law would imperil the privacy of government officials and perhaps even put national security at risk.

This is even as Palace officials reiterate that the Aquino administration remains committed to transparency and good governance.

“Transparency doesn’t even require an FOI bill,” says Manuel L. Quezon III, Undersecretary of Presidential Communications Development and Strategic Planning. “Generally, (transparency means) are you willing to accommodate the questions that are brought by reporters or researchers, are you more forthcoming with your budget data, are you more liberal in terms of what sort are non-controversial items that can be immediately put online.”

As the Liberal Party standard bearer in the 2010 elections, then Senator Benigno Simeon ‘Noynoy’ Aquino III had promised that the FOI bill would be among his administration’s legislative priorities.  He had also said that having a “force of law” was necessary for transparency in government to really take place.

‘Unreasonable requests’

Five months after Aquino took his oath as president, Secretary Herminio Coloma of the Presidential Communications Operations Office released a statement saying that the Malacañang had reservations about making the measure a priority, because government operations may be hampered by unreasonable requests for information.

By last February, despite appeals of FOI advocates, the bill was nowhere on the list of priority measures submitted by the Palace for the Legislative-Executive Development Advisory Council (LEDAC).

Today lawyer Nepomuceno Malaluan, spokesman of the Right to Know, Right Now! Coalition of over 160 civil society groups, says, “While Congress has made initial advances at the committee level, we have seen that there has been a very visible slowing down of the legislative process after the Malacañang held back from including FOI among its list of priorities.”

Rough sailing

Senator Antonio Trillanes IV himself counts the bill among his legislative priorities, but concedes that it might face rough sailing even in the Senate without the Palace’s certification.

“This bill, no matter how important this is, will have to take a backseat and we will take the cue from the president,” he says. “(But) I’m going to give the president the leeway he needs in order to govern this country.  If he feels, let’s say, national security or poverty alleviation will be the priority over transparency then I’m willing to give him that.  “

Presidential Spokesman Edwin Lacierda, meanwhile, has justified the exclusion by saying that Malacañang needed more time to study the FOI measure. Lacierda says that an “inter-agency committee” would be organized to look into the Palace’s concerns.

But the Palace hasn’t said anything much about the matter after that, leaving FOI advocates seriously worried.  “We know that every day that the process does not move diminishes the opportunity to have the bill passed,” says Malaluan.

“Our experience in the last Congress is that as you approach the third year of the three-year term of Congress, it becomes more difficult to get the bill passed,” he said.

To be sure, there are laudable efforts by the administration to improve transparency and openness when it comes to public information. Secretary Jesse Robredo of the Department of the Interior and Local Government (DILG) oversees one of the most ambitious efforts of the Aquino administration to improve transparency in government: requiring full disclosure of all local government units (LGUs) of financial information.

12 documents

“For the LGUs,” says Robredo, “we (require the disclosure) of 12 documents, including the use of the economic development fund, procurement and budget statements, and even a document showing all the obligations of the LGUs as far as borrowings and amortizations is concerned. Last year, it was an initial effort; I think compliance was between 25 to 30 percent.”

Robredo says this kind of openness and transparency provides benefits to the citizens, both directly and indirectly.

“Let’s say, for instance, I publish a notice of bidding – this will serve as a benchmark to suppliers if they are interested in engaging with the LGU,” he says. “If I’m a supplier, I now know the benchmark of the cost in order supply material or equipment. Now the other constituents will be watchdogs; if it is overpriced, then they will certainly know that it is overpriced. So what happens now is that you will have people with varied interest in the information provided, but this varied interest would ultimately (serve) the interest of the public.”

In 2010, the DILG issued a memorandum circular to encourage local governments to disclose these financial documents. This year, however, there is a provision in the General Appropriations Act that would actually require the local units to disclose the documents, and Robredo says that his department is willing to pursue legal sanctions against those who would refuse to comply.

Law would help

“I certainly think that the threat of legal action will significantly improve compliance,” he says. “In time, probably, there is no need for it. But inasmuch as this is the first step from the kind of system we had before, wherein at any given point in their term, any local official can get away with not disclosing how he or she had spent (public) money. So it might be good if, at least, it will be backed up by legal sanctions if they do not comply.”

In fact, having an FOI law in such a situation would be ideal. Because the proposed FOI act contains a provision of penalty for non-compliance, it would strengthen campaigns, such as the DILG’s, to improve transparency in government agencies. It would also define processes that would prevent government agencies from putting up arbitrary barriers involving the disclosure of public documents.

“There are a number of substantive and procedural gaps that can only be addressed by legislation,” says Malaluan. “One procedural gap is an absence of a uniform procedure for accessing in formation, so [requests] are handled differently across government agencies.”

Cause of delay

Because of a lack of legislation, the government gets to determine what can be covered and not covered by the Constitution’s mandate of the right to information. “There’s a big amount of discretion that will be remedied by having a clear list of exceptions under this bill,” Malaluan says.

These exceptions are among the concerns being raised by the Palace preventing it from certifying the FOI bill as urgent. Says Quezon: “In every administration, there is always the intelligence community, it is always the national security community, and the defense community, and of course, the diplomatic arms of the government that are the most concerned, being very specific and particular in terms of disclosure, of what can be disclosed and when.”

This, according to Quezon, has been the cause of the delay in formulating the official Malacañang stand on the bill.

“These are the things that get a little slow, because the lawyers are being involved and they have to hammer it out,” he says. “This is both for the protection of the public, in terms of it legitimate rights, as well as of the state, in terms of, you don’t want to imperil your national security order, military and police operations, on the basis of haphazard disclosures.”

Overstated worries

But Trillanes, a former military man, says such concerns might be overstated.

“I believe the (armed forces) in general would welcome this bill because in the end it will be to their benefit,” says the senator, who was among the leaders in the 2003 Oakwood mutiny that stemmed from allegations of military corruption.

“Once you get rid of the culture of corruption in the bureaucracy,” he says, “now we can be more efficient on our use of our public funds, and that will result to having more benefit for the welfare of the soldiers, better equipment, and that can help them in accomplishing their mission. But of course if you’re talking about operational security, how they would conduct their military operations, it will be part of the exceptions in the Freedom of Information Bill.”

“Many of the concerns have been addressed already in the bill,” Malaluan says. “For some of the concerns that we feel might have been overlooked in the past legislative process, we have expressed our openness to revisit some of these issues, we have submitted our petition papers, we have supported the study made by Rep. Tañada who was the technical working group committee chairman in the House of the Representatives addressing some of the concerns.”

Malaluan says that he and his fellow FOI advocates have remained open to a dialogue with the Palace. Undersecretary Quezon, for his part, says that Malacañang also wants to continue the conversation on the bill.

“The President directed at the start of this year that we engage in substantive discussions with freedom of information advocates and with those who have been proposing legislation in Congress,” he says.

In an interview with PCIJ, Quezon recalls with relish a meeting two months ago between the Communications Group and the FOI advocates. “As early as February,” he recounts, “we met with the freedom of information coalition people and we had a frank and open discussion, and I think a very good one. This led in turn to other discussions within the government so that we could hammer out our positions and areas of concerns that we had engaged in, in terms of the dialogue. “

Sunny picture?
To the Palace then, things are still looking sunny with the FOI bill. “It’s been moving quite well,” says Quezon. “There have been several meetings on this core. And the question will then become ‘What sort of engagement will the President have?’”

In Quezon’s book, the Palace precisely wants to reconnect with the advocates soon. “There has to be a final agreement,” he says. “We’ll be going back, for example, to the proponents of the Freedom of Information act having gotten our positions together and we’ll be engaging in a little more dialogue.

What the Palace needs is more time for more discussions, he says. “The objective here,” Quezon says, “is that once a general agreement is reached, it will enable speedier and smoother passage once all the parties have basically reached an understanding.”

The undersecretary, however, declines to say when Malacañang would be able to come out with a clear-cut position on the FOI bill that would address its concerns. He does note, though, that the process has “moved substantially forward.”

Unfortunately, with time slowly running out once again on the FOI bill, advocates say “moving substantially forward” just won’t cut it.

“We are really quite anxious and apprehensive that any further delay of the legislative process might jeopardize our ability to have this bill finally passed into law in the 15th Congress,” says Malaluan. “We believe that at this point the Aquino administration must really state where it stands on the bill so that the citizens will not be left hoping and hanging, giving them the benefit of the doubt for so long.  We believe that it’s about time that the Aquino administration already declares where it stands exactly on the passage of the Freedom of Information Act.”

Robredo says his principal is still committed to the passage of the FOI bill.

“I’m quite certain that, as a matter of principle, he would like transparency and accountability to be promoted,” he says. “I think it should be prioritized, I think this administration is prioritizing it. We just need to fine-tune it, so that once we say this is it, then we are ready.” – With reporting by Ed Lingao, Stephanie Directo, Krystal Jimena, and Essen Miguel, PCIJ, May 2011

This is the access to information regime that lingers in the Philippines nearly a year after Benigno Simeon C. Aquino III came to power on a “Social Contract with the Filipino People,” which he said would be defined by transparency, accountability, and good governance.

But a seven-month PCIJ audit of how 27 national agencies deal with access to information requests shows spotty proof of Aquino’s recipe for good governance in the processes and practices of these agencies. While a few stand out as exemplars of transparency, the majority remain stuck in the old ways of opaque government, with some even sliding back into darker corners.

To the last set belong the Office of the President and the nation’s top integrity office, the Office of the Ombudsman. The two stick out in the PCIJ audit as the most barren fields for harvesting information and documents, particularly on the wealth of senior public officials.

The 27 agencies covered by the audit include Malacañang, the Ombudsman, the three other constitutional commissions, the Office of the Vice President, the Senate, the House of Representatives, the Armed Forces of the Philippines (AFP), the Philippine National Police (PNP), and executive agencies collecting revenues and managing big budgets and big contracts.

To audit the processes and practices the agencies employ in dealing with pleas for information, the PCIJ filed 35 requests for copies of the Statement of Assets, Liabilities and Net Worth (SALN), personal data sheets (PDS) or curriculum vitae, and for some agencies, specific documents and data sets.

A total of 45 request letters were faxed or delivered to the agencies, and in all cases assisted by a total of 149 follow-up calls to the agencies made by the PCIJ staff and interns. Throughout the audit period from September 2010 to April 2011, the PCIJ also documented how and who from the agencies responded to the requests, how many days or weeks it took them to grant the requests, and in what manner or form they did.

The audit yielded results that surprised and disappointed at the same time, such as the integrity agencies turning out to be more secretive about their SALNs, as well as some agencies more ready to share the SALNs of other officials they have in custody but not the SALNs of their own agency bosses. Too, only 20 requests were granted, making for a poor 57-percent approval rate. Several of these approvals also took place well beyond the 10 working days deadline in law for officials and agencies to act on requests for SALNs, and the 15 working days deadline in law for them to act on requests for other documents.

People’s right to know

Republic Act No. 6713 or the “Code of Conduct and Ethical Standards for Public Officials and Employees” provides a general rule on access to information. Section 5 of the Code states: “All public documents must be made accessible to, and readily made for inspection by, the public within reasonable working hours.”

Why some officials promptly open doors to requests for SALNs and other documents while many others keep their doors shut seem rooted in one factor: While President Aquino’s policy of transparency in the conduct of government affairs has largely been verbalized, it has not been operationalized. The result is an incoherent picture of access to information practices across the bureaucracy.

Documents uploaded online by the departments of Budget and Management and of the Interior and Local Government are thus far the few practical testimonies to transparency of the Aquino government.

Yet a second factor could well be the indecisiveness that Aquino and his officials have shown toward the proposed Freedom of Information (FOI) Act, which could set the standards and procedures to enable the citizen’s right to know that has been guaranteed as early as 24 years ago by the 1987 Constitution.

The charter has precisely mandated the Congress to enact the FOI bill but it has taken advocates of the law 14 years to file and refile, then file and refile again, FOI bills in the last four successive Congresses.

In the past several months, meanwhile, the secretaries of Aquino’s Communications Group have voiced the supposed “concerns” of some Cabinet members about the FOI bill that the president has not included in the list of priority legislation he submitted to Congress.

PNoy, Merci alike

Thus, while it was most disappointing, it was not much of a surprise that the PCIJ audit showed the Office of the President under Aquino and the Office of the Ombudsman under just-resigned Merceditas N. Gutierrez as having become more alike in terms of their access to information practices in recent months.

In both Malacañang and the Ombudsman, new and additional administrative barriers to access have lately been imposed. Malacañang and the Office of the Vice President also did not disclose the SALN of President Aquino and Vice President Jejomar Binay, respectively; it merely flipped and tossed the PCIJ’s request to the Office of the Ombudsman.

At the Ombudsman under Gutierrez, though, SALN requestors had been sure to go through long, circuitous processes before a request is approved. For instance, since last Feb. 2, the Ombudsman has not acted on the PCIJ’s requests for copies of the SALNs of its senior officials, including Gutierrez and her deputy ombudsmen.

The Office would also simply not give copies of Gutierrez’s SALNs, until Gutierrez herself had approved it; no copies of the resigned Ombudsman’s SALNs could be found even in the Office of the President.

Yet when it came to requests for copies of the SALNs of governors and mayors, the Ombudsman’s regional offices (Luzon, Visayas, and Mindanao) acted quickly and nearly completely. It would therefore seem like the Ombudsman is more willing to release such information so long as these do not involve its own senior officials.

Palace imposes barriers

To ferret out the SALNs of Ombudsman Gutierrez and her predecessors, PCIJ last February tried writing to Executive Secretary Paquito N. Ochoa Jr. requesting for copies of the SALN and personal data sheet (PDS) or curriculum vitae (CV) of the previous and current Ombudsmen.

Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act requires every public officer to file his/her SALN with the office of the department head. The head of department of an independent office in turn must file with the Office of the President.

More than a month later, PCIJ received a letter from Senior Deputy Executive Secretary Jose Amor M. Amorado saying that the data being requested were available for reproduction at the Malacañang Records Office.

But “to comply with laws and administrative issuances related to the disclosure of SALNs,” Amorado said the requestor would need to present a valid identification card, a certification of her affiliation with PCIJ, PCIJ’s registration documents (e.g., Securities and Exchange Commission [SEC] Registration, Bureau of Internal Revenue [BIR] Registration, and Mayor’s Permit), and an executive summary sufficiently describing the use of the SALNs requested.

Ironically, Amorado sent the response even if the Records Office does not have on file copies of the documents requested, the PCIJ found out.

This recent encounter is very much unlike PCIJ’s experience with Malacañang six months ago. As a regular update to PCIJ’s library files of the SALN and PDS of government officials and employees, PCIJ then made a request for the SALN filed upon assumption of the new administration’s Cabinet members.

On Sept. 8, 2010, two days after the request was sent, Assistant Executive Secretary Jed M. Eva called to inform PCIJ that its request is being processed and that the SALNs requested have yet to be collected. Although incomplete, PCIJ managed to get 11 of the 32 requested SALNs without any additional documentary requirement.

Apparently, however, the Office of the President has since adopted new guidelines on the release of SALNs and now imposes a slew of documentary requirements that require several documents from the requestor before information would be made available.

And so instead of taking the lead in pushing for transparency in government, the Office of the President seems to be following the footsteps of other state agencies that would rather keep documents close to their chests.

Closed commissions

Indeed, even the so-called “integrity” institutions and three other constitutional bodies – the Commission Audit (COA), the Commission on Elections (Comelec), and the Civil Service Commission (CSC) – are among the most secretive and the slowest to respond to requests for copies of the SALNs of their top officials.

Elections Commissioner Rene Sarmiento was the only one who gave the PCIJ a copy of his SALN. The requests filed with his fellow commissioners still await action.

But at least Comelec did not go the way of COA and CSC, both of which flatly denied the PCIJ’s requests. Weeks later, in response to a clarificatory letter from the PCIJ, the CSC said its Resolution No. 1100356 that was supposedly published in a newspaper last Apr. 13 prescribes guidelines for the release of the SALNs filed with the CSC.

The guidelines require requesting parties to submit IDs and endorsement from his/her employer or school dean or secretary (for students); then and only then would the personnel or archives staff of the CSC review the request. The reviewer, however, may only recommend the approval or disapproval of the request, because the final decision apparently rests still with the CSC directors. And finally, if the request is ever approved, the guidelines require requestors to pay a handsome fee of P200 per SALN.

Perhaps because the SALNs requested are not of its own officials and because the request was made before the new guidelines were adopted, CSC had previously been most prompt and helpful in giving PCIJ copies of the SALNs of the deputy ombudsmen. It could not, however, produce any for Ombudsman Gutierrez.

Interestingly, the new CSC guidelines cite rulings of the Supreme Court in two cases as rationale for the restrictions. The CSC says the high court has affirmed that government offices having custody of public documents, like SALNs, “may prescribe reasonable rules and regulations relative to the manner with which the public may examine/scrutinize/reproduce/copy the subject documents.”

In the last five years, the justices of the Supreme Court have themselves stubbornly refused to share copies of their SALNs and PDS. In 2006, the court issued a policy restricting public access to the SALNs of its justices, all other magistrates, and all court personnel. Aquino’s summons to transparency has hardly nudged the justices to reverse their self-serving policy, which remains in force to this day.

Exemplars & excuses

More open regimes are taking shape, however, in a handful of executive departments where Aquino has installed new officials. The performers in terms of access to SALNs of senior officials are the Department of Interior and Local Government (DILG) and the Department of Finance (DOF).

The National Economic and Development Authority (NEDA) and the Department of Social Welfare and Development (DSWD) are also comparably quick when requests for other documents are concerned. But then NEDA merely flipped and tossed to the Ombudsman the PCIJ’s request for SALNs.

To be sure, a corps of professional staff personnel, clear procedures and mechanisms for responding to public requests for documents, and the “tone at the top” from agency heads with solid grounding in the laws on transparency and accountability have helped transform these agencies into paragons of access to information practices.

Conversely, the absence of the these factors, as well as confused and confusing signals and compliance by Malacañang and other superior agencies, have lent the bad performers excuses to linger in secrecy and remain hostile to public requests for documents.

These include the AFP, PNP, as well as the Department of National Defense (DND), which seem stuck in the practices of old. The AFP referred the PCIJ’s request for the SALNs of the generals to the Ombudsman and the CSC; the DND to the Office of the President; and the PNP said it was still working on the request that PCIJ filed nearly three months ago.

As for Congress, until recently, the Senate and the House of Representatives were poles apart in how they managed requests for copies of SALNs. From 2007 to the present, the Senate has consistently responded promptly and fully to requests for SALNs. Since 2009, the House of the 14^th Congress under Speaker Prospero C. Nograles Jr. had consistently refused to provide copies of its lawmakers’ SALNs.

Last March, however, the House finally opened up its records. But that was only after the PCIJ furnished the Ombudsman and the CSC copies of its requests, and cited a markedly different regime of openness in the Senate.

Last year, the FOI bill came just two steps shy of passing into law in the 14^th Congress, largely on account of dogged legislative work by Liberal Party lawmakers like Aquino, then a senator with the opposition bloc.

The Senate had ratified the committee report but the House unto its last session day in May 2010 ignored and “dribbled” the report, saying it did not have the required quorum to ratify. The media later exposed this to be untrue as video footage showed that on that day at the House there were more lawmakers present to constitute a quorum.

On Jun. 16, 2010, asked by reporters whether he would assign priority to the FOI Act once he becomes President, Aquino had replied: “Yes. Iba pa rin ‘yung may force of law (It would be better if there is the force of law). That would be, I think, the more complete route.”

While the House of the 14^th Congress mocked the FOI bill by feigning the absence of a quorum, Aquino’s statement that he would stand foursquare behind the FOI Act assured the bill’s advocates.

That statement, however, would be Aquino’s last public stand in favor of the FOI bill in the succeeding 11 months. – With reporting and research by Karol Anne M. Ilagan, Che de los Reyes, and Ojie Sarmiento of PCIJ; and with research assistance from PCIJ Interns Aencille Santos, Kim Chermaine Bañares, AJ Priela, Henor Gotis, Eric Rivera, and David Faustino, PCIJ, May 2011

But the absence of such a system in most other agencies, as well as the lack of fully defined rules and procedures that all agencies must observe in responding to requests, remain barriers to access.

The bad results: inordinate delays, token compliance with lawful deadlines, disregard for the Constitution’s guarantees of the public’s right to know, and a general slide to secrecy, not transparency, in most of the bureaucracy under the Aquino administration.

For instance, requests for copies of the Statement of Assets, Liabilities and Net Worth (SALN) that the PCIJ filed with the secretaries of Finance and Interior and Local Government drew quick and correct action.

The requests were forwarded promptly to the departments’ respective personnel units that had copies of the documents. The personnel units approved the. requests like these were regular office transactions. Ahead of the 10 working days’ deadline in law for agencies to act on SALN requests, the two institutions got the work done.

In contrast, most other agencies moved exceedingly slow on similar requests, flipped and tossed the requests to other agencies, or simply ignored and rebuffed the requests outright.

The Office of the President and the Ombudsman are the stellar examples of restrictive, inefficient access to information regimes in place today.

Yet another is the Philippine National Police. Over the last three months since Feb. 18, the PNP has passed around the PCIJ’s request for SALNs to at least five PNP units: from the office of the PNP director-general to the office of the PNP Internal Affairs Service, to the office of the PNP Chief of the Directorial Staff, to the PNP Public Information Office (PIO), and finally, to the PNP Directorate for Personnel and Records Management (DPRM).

Three months and five offices later, the PNP has yet to provide the PCIJ a single page of a single SALN that any of its top cops had filed.

On Apr. 26, or 10 weeks after the PCIJ request was filed, the PNP’s PIO told PCIJ that the request should be sent to the PNP-DPRM, where a staff personnel told the PCIJ that it is the PNP-PIO that should decide on the matter. The PNP-DPRM staff said the information enrolled in the SALNs are “sensitive.” The employee later advised to the PCIJ to write another letter addressed to the PNP chief, with a note of attention to the DPRM head.

Multiple layers of bureaucracy, buck-passing, inordinate delays, and seeming indifference to or ignorance of the relevant laws on the part of some agencies – all these barriers are sure to test the patience and stamina of those filing requests for access to SALNs and other documents.

This was the situation in the House of Representatives for three years’ running under Speaker Prospero Nograles Jr. of the 14^th Congress, which lingers in part to this day under Speaker Feliciano Belmonte Jr. of the 15^th Congress.

The PCIJ’s request for the SALNs of House members made the rounds and went back and forth in multiple office units of the chamber – the office of the Secretary-General, which forwarded the request to the House Legal Division and to the offices of all the members of the House.

The Legal Division later sent back the PCIJ request to the Secretary General for her approval. After this was granted, the Secretary General’s Office moved a transmittal letter with its stamp of approval to the House Records Division.

But the run-around did not stop there. Follow-up calls had to be made with the House Records Office before it finally acknowledged the Secretary General’s approval and actually allowed the release of the SALNs for reproduction.

This resort to red tape also marked the action of the Office of the Ombudsman to similar requests that the PCIJ had separately filed with the nation’s top integrity agency. Under just-resigned Ombudsman Ma. Merceditas N. Gutierrez, the agency had reverted to old, restrictive procedures in dealing with requests for SALNs.

The requests filed with Gutierrez’s office were referred first to the Office of Legal Affairs so it could study and recommend action on the same. The catch was that the recommendations of the Office of Legal Affairs had to be sent back to Gutierrez for her final approval.

Despite these restrictive and redundant procedures, however, the PCIJ encountered some officials who demonstrated exemplary openness and respect for the public’s right to know.

This honored and honorable roster includes Commission on Elections (Comelec) Commissioner Rene V. Sarmiento and three House members:  Batanes Rep. Henedina R. Abad, Lanao del Sur Rep. Mohammed Hussein P. Pangandaman, and Abante Mindanao Party-List Rep. Maximo B. Rodriguez Jr.  Without any need for prodding, all four, on their own volition, gave the PCIJ copies of their SALNs via fax or mail. They did so even while their agencies, the Comelec and the House, had yet to act fully on the PCIJ’s requests for SALNs.

In the case of the Armed Forces and some executive departments, avoidance of action and retreat to higher ground or superior agencies defined the token action that agencies made on the PCIJ’s requests for SALNs.  Their usual resort was to refer the requests to either the Office of the President, the Civil Service Commission, or the Ombudsman.

But while some agencies are secretive about the SALNs of their top officials, they are also more open to granting requests for other documents that they hold in custody.

The Comelec generously shared documents on the election spending reports filed by candidates in the May 2010 elections, the Department of Social Welfare and Development and the Department of Budget and Management documents on the Conditional Cash Transfer Program, the Sandiganbayan databases on the status of graft and corruption cases filed before its courts, and the Securities and Exchange Commission and Department of Trade and Industry on certificates of registration of business entities.

Amid these hopeful signs of openness though are hints of mistrust, indifference to transparency laws, or even contempt toward people seeking access to information that some civil servants apparently harbor still.

In exchanges with the PCIJ staff, some have made side comments that disclosing the SALNs may pose “security risks” for their officials, that the documents may only be released through a court order, or that the documents supposedly contain “confidential” information.  – PCIJ, May 2011