HAVING HAILED Executive Order No. 2 (s. 2016), operationalizing for the Executive branch the people’s constitutional right to information, as a major step forward, the Right to Know, Right Now! Coalition (R2RKN) committed to engage processes related to it, and launched a new round of FOI practice centered on its implementation. This report covers the review of agency compliance with the EO’s mandate for a People’s FOI Manual, and an assessment of agency action on requests filed after EO No. 2 took effect.
Tracking the Manual
The review covered the following 22 agencies:
• 20 departments (Agrarian Reform/DAR; Agriculture/DA; Budget and Management/DBM; Environment and Natural Resources/DENR; Education/DepEd; Foreign Affairs/DFA; Information and Communication Technology/DICT; the Interior and Local Government/DILG; National Defense/DND; Energy/DOE; Finance/DOF; Health/DOH; Justice/DOJ; Labor and Employment/DOLE; Science and Technology/DOST; Tourism/DOT; Public Works and Highways/DPWH; Social Welfare and Development/DSWD; Trade and Industry/DTI; and Transportation/DTr)
• Commission on Higher Education (CHEd); and
• National Economic and Development Authority (NEDA).
The coalition filed FOI requests for the following:
1. A copy of the agency’s People’s FOI Manual;
2. The name and contact details of the agency’s FOI Receiving Officer (FRO); and
3. A list of FOI requests filed and action taken by the agency since November 25, 2016.
EO No. 2 provides a clear and unequivocal directive to all public officers and employees of the Executive Branch to respect and fully operationalize the right of every Filipino to have access to information in their custody. The People’s FOI Manual is supposed to give the details and procedures for access, as provided for in Section 8 below:
SECTION 8. People’s Freedom to Information (FOI) Manual. For the effective implementation of this Order, every government office is directed to prepare within one hundred twenty (120) calendar days from the effectivity of this Order, its own People’s FOI Manual, which shall include among others the following provisions:
(a) The location and contact information of the head, regional, provincial, and field offices, and other established places where the public can obtain information or submit requests;
(b) The person or office responsible for receiving requests for information;
(c) The procedure for the filing and processing of the request as specified in the succeeding section 8 of this Order.
(d) The standard forms for the submission of requests and for the proper acknowledgment of requests;
(e) The process for the disposition of requests;
(f) The procedure for the administrative appeal of any denial for access to information; and
(g) The schedule of applicable fees.
Having an FOI Manual, therefore, is the first step to agency compliance with the EO, and introduces the public to the new process of accessing information. Because it is a new policy, it is important that both the public and government personnel know where and how the process begins; hence, the need for an FOI Receiving Officer who will provide frontline service to FOI requesters.
The coalition also asked for the lists of FOI requests received and the action taken by agencies, to gauge their responsiveness as well as readiness to do the work outlined in the manual. R2KRN’s analysis will be used for demonstration purposes only, as there is not enough information to ascertain improvement in agency performance.
R2KRN did the standard phone, email, and paper-based requests, and consulted the FOI portal only when prompted by the agency. (PCIJ did a separate review of the eFOI portal.)
R2RKN filed requests with 20 of the 22 agencies, sent 21 email and 17 facsimiles, and made 41 phone calls between January 30 and March 15.
It took from 0 to 32 days for an agency to respond, partially or fully releasing information requested, or not at all. Table 1provides a snapshot of the results.
Fastest to respond was the DBM, which released the information immediately after receiving the emailed request. (NOTE: Email was sent on a weekend, so the first day of reckoning is the following Monday.) There were two slow responders – DENR and DOLE, both of which, despite several calls, were not able to send any documents. CHEd, DPWH, and DTI never responded to emails or phone calls.
Of the 22 agencies included in this review, R2KRN filed requests with 20 agencies (DAR and DTr were omitted in the first batch of requests sent; while DND was part of the second batch).
Of the 22 agencies, only 11 released their FOI Manuals to the coalition, although 16 (of the 20) were supposed to have submitted their FOI Manuals to the Presidential Communications Operations Office on November 25, 2016.
Of the 11 that had manuals, only nine gave names and contact details of FOI Receiving Officers. DepEd and DILG said they were still in the process of revising their respective manuals, holding consultations, or otherwise undergoing a transition toward full FOI implementation, and thus could not immediate provide details.
DOST, DOT, and DSWD also claimed to be doing revisions, and did not give copies of their manuals, even if these had supposedly been endorsed to PCOO in November 2016.
If agencies did not respond to the coalition’s request, it was possible that the documents were already posted on the agency websites. While it does not excuse non-response to honest queries, the FOI Manuals allow as basis for denying a request the posting and availability online of the relevant information.
After checking 22 agency websites, and calling their offices to confirm if their FOI Manuals had been uploaded, the picture is not much different. Only 10 manuals were downloadable. Where the manuals were placed varies. Some could easily be found under agency issuances/releases, while others needed the use of the search function.
In all, R2KRN gathered 15 out of 22 possible manuals. Eleven of these were accessed through FOI requests, while an additional four were downloaded from agency websites. Only six agencies had their manuals available both online and upon request. (See Table 2)
Agency Action on FOI Requests
Only eight of the agencies that gave both the Manual and the details of the FRO gave a list of requests received since the EO was implemented. DBM directed the coalition to the eFOI, from where it extracted the information asked for. DA said that it has yet to receive any requests under the EO.
Among the eight agencies, 208 FOI requests were lodged, with a 2-1-1 ratio of pending, denied, and successful requests, respectively. The agencies most popular for requests were DBM and DOH, which accounted for 68 percent, or two out of every three requests. DFA and DOE received the least numbers of requests. DOE granted all the requests it received while DOF denied every one of the 18 requests it received. NEDA and DOJ had good information-release records (83 percent and 77 percent, respectively), but DICT said no to two out of three requests. Owing to the number of requests they received, DOH and DBM also had the most number of pending cases (69 percent and 63 percent, respectively).
A breakdown of agency action on FOI requests may be seen in Table 3.
Table 4 shows the diversity of reasons why people file FOI requests.
Contrary to apprehensions that only the media will be making full use of FOI, journalists/media persons only accounted for less than five percent of total requests lodged with the eight agencies since November last year. Most of the requests made were by students and researchers, business people, and private individuals. And although financial and budget data constituted the bulk of the requests, dozens of other information types were also sought. People also needed information about social services and benefits, health matters, the state of the economy, laws and official issuances, and many more.
The richness of purposes for which people seek information, and the multiplicity of information users will become more apparent as more agencies keep track of these details. Even as monitoring agency performance might be the primary focus of the reporting requirement mandated in EO No. 2, the reports generated could also guide government offices on the types of information citizens are interested in, who the users are and the reason/s why they need such information. These can provide insights on how to structure governance and how to design and deliver better public services.
Section 4 of Executive Order No. 2 mandated the Office of the Secretary (OES) to circularize the inventory of exceptions to the right to information. On November 24, 2016, the OES issued a Memorandum that enumerated nine classes of exceptions, as follows:
1. Information covered by Executive privilege;
2. Privileged information relating to national security, defense, or international relations;
3. Information concerning law enforcement and protection of public and personal safety;
4. Information deemed confidential for the protection of privacy of persons and certain individuals such as minors, victims of crimes, or the accused;
5. Information, documents, or records known by reason of official capacity and are deemed as confidential, including those submitted or disclosed by entities to government agencies, tribunals, boards, or officers, in relation to the performance of their functions, or to inquiries or investigation conducted by them in the exercise of their administrative, regulatory, or quasi-judicial powers;
6. Prejudicial premature disclosure;
7. Records of proceedings or information from proceedings, which, pursuant to law or relevant rules and regulations, are treated as confidential or privileged;
8. Matters considered confidential under banking and finance laws, and their amendatory laws; and
9. Other exceptions to the right to information under laws, jurisprudence, rules, and regulations.
The Memorandum provided the salient details and legal bases defining the extent and application of the exceptions. These are supposed to guide information holders in their function of dispensing information.
While the Coalition acknowledges that inextricably tied to any access right are the limitations on it as provided for in the Constitution, statute, and jurisprudence, it noticed certain red flags while conducting a review of some agencies’ FOI Manuals. The Annex contains a collation of the exceptions in the agency manuals that the Coalition reviewed.
A separate note fully explains the Coalition’s concerns, but below are quick points to emphasize:
On Personal Information, it is important to balance the right to access information with an individual’s right to privacy. The Data Privacy Act of 2012 does not give blanket prohibition on the release of personal information especially if they pertain to public officials and employees or contractors, and such information relates to the services performed, including the terms of the contract. To protect privacy of an individual and be transparent at the same, redaction may be availed of.
Overbroad and Vague Restrictions. Internal communications, operational matters, prejudicial premature disclosure, restricted documents and confidential documents may all be considered as overbroad or vague restrictions that need to be further defined to ensure that they do not go beyond exceptions found in statute, the Constitution, or jurisprudence.
Subsequent Identical Requests. At present there is no law denying FOI request because a prior similar request has already been made. If it were to be allowed, there should be a way for others to see previously released information, and that new requesters are guided to where such information is lodged.
Special Laws. Some agencies cited confidentiality provisions in special laws. While they classify certain documents as confidential, they also provide for limitations on confidentiality, which should also be recognized.
Reports, Ongoing Bidding, Non-Final Papers. When the reports, bidding, non-final papers have attained finality or have already become the basis of official action, the government should be able to make available such official acts, transactions, and decisions.
SALN. The issue of access to the Statement of Assets, Liabilities, and Net Worth or SALN of public officials and employees is more administrative in nature. The Coalition sees no diminution in the right of the citizens to access information if the request is made not to the proper custodian of the SALN.
Executive Privilege or Presidential Communications Privilege. While a recognized exception to the right to access information, the privilege should be invoked by the head of the department citing precise and certain reason. It is not something to be left to the discretion of the person processing the request.— Right to Know, Right Now! Coalition, ANGKOP, and Action for Economic Reforms, PCIJ, March 2017