THE POWER OF ACCESS.

The law requiring officials to disclose their assets and financial

circumstances has helped government file cases against 2 presidents and a Supreme Court Chief
Justice

MANILA, Philippines - In February 2014, the Philippine government

finally recovered around $30 million from multi-million dollar accounts that the late
dictator Ferdinand Marcos stashed away in Swiss banks.
What allowed the government to gain control of the money were forfeiture cases
which proved that amounts contained in the accounts exceeded the total legal
income of Marcos and his wife Imelda while they were in office. Evidence used to
prove the governments case included the financial disclosure statements filed by
the Marcoses while in office.
It took the government almost 3 decades to recover the money. Neither Marcos,
nor his wife Imelda, were ever convicted of any wrongdoing.

No laggard?
The Anti-Graft and Corrupt Practices Act, the law that required the Marcoses to
file those disclosure statements dates back to the 1960s. In 1989, years after the
Marcoses were booted out of office, the Philippine Congress enacted a new law
which allowed the public to access and photocopy the assets and liabilities
statements.
Since then, the law has been used to prove a plunder case against another
president (Joseph Estrada), impeach then remove a chief justice (Renato
Corona), file cases against corrupt generals and lately, support the filing of
charges against sitting senators.
That the Philippines enacted such a law almost 3 decades ago is significant
because as of 2006, a World Bank study showed that only 31 of 101 countries
that require government officials to declare their income and/or assets mandate
that such declarations or a summary should be made available to the public.

This implies that the Philippines is no laggard when it comes to laws allowing
access to public information.

Constitutionally-mandated right
The people's right to information on matters of public concern has been
constitutionally recognized in the country since 1973.
Section 6. The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, shall be afforded the citizen
subject to such limitations as may be provided by law.
- Bill of Rights, 1973 Constitution
After the 1986 Edsa uprising ousted the Marcos dictatorship, this right was
further expanded in the 1987 Constitution to include access to research data
used as basis for policy development.
And while there is no enabling law yet on access to information, the Philippine
Supreme Court has already ruled, in more than one occasion, that the
constitutional mandate is enforceable.
In fact, the Code of Ethics of government officialsthe same law that mandates
public access to financial disclosure statements of government officialsalso
makes it the obligation of public officials and employees to make documents
accessible to the public.
The implementing rules of this law helped institute a system of
promotingtransparency of transactions and access to government information. It
also sets limits of access.

More recently, the Aquino administration has been making strides in promoting
transparency in government by proactively disclosing budget and project
documents.
It is no small wonder then that while the Senate has approved the bill on 3rd
reading, members of the House of Representatives continue to drag their heels
on the freedom of information law.
Because if those laws are already in place, why then is an access to information
law still necessary?
To help answer that question, Rappler, with the support of the Friedrich Naumann
Foundation, analyzed freedom of information laws in other parts of the world. We
noted these common features in the laws we studied:
an overall policy making information available
limits of access
prescribed process by which information may be accessed, cost of access,
and processes for appealing request refusals
in recent cases measures to ensure that access policies are enforced
through oversight bodies and penalty clauses

TRANSPARENCY VS CORRUPTION. Giving public access to financial disclosures and budget

releases could help reduce leakage of public funds through corruption

Uneven, selective release of information

In the Philippines, while the Code of Ethics does make it the obligation of
government offices to make public documents available, journalists have found
time and again that requests may be refused without any clear grounds.
Selective release is true even for requests for asset disclosure statements
despite the clause in the law that specifically requires custodians to make such
documents available for duplication within 10 days after they have been received.
Three years since the impeachment trial, for example, the House that prosecuted
former chief justice Corona has yet to create rules releasing the disclosure
statements of its own members.

In place of SALNs, the House only releases a summary of the wealth of House
members in a matrix that includes the total amount of real properties, personal
properties, total assets, liabilities and net worth of each lawmaker. (READ:
Solons from poorest region among richest in Congress).
Rapplers request for the full copies of the SALNs of lawmakers, which we file
every year, has been repeatedly denied.
This is in stark contrast with its co-equal branch, the Senate, which regularly
releases the full copies of statements to media.
The Government Procurement Reform Act also mandates transparency in the
procurement processes and equal access to information for bidders but stops
short of requiring access to the actual contracts.
Oftentimes, journalists have to go through insiders to get copies of government
contracts.
Short of going to court, which can be expensive and time consuming, there is no
clear process for appealing refusals of requests for information.

Bias for access

Instead of confining access to certain types of information, FOI laws generally
make access the default policy.
The website of the UKs Information Commissioners Office expounds on this in
instructions to authorities required to release information:
Remember you (authority) are required to disclose requested information unless
there is good reason not to. It is your responsibility to show why you should be
allowed to refuse a request, so it is in your interests to co-operate fully with our
investigation.

In rare circumstances when a public authority persistently refuses to co-operate

with us, we can issue an information notice. This is a legally binding notice,
requiring an authority to give us the information or reasons we have asked for.
The UK system simplifies access such that all a person needs to do is to:
contact the relevant authority directly;
make the request (verbal or in writing)
give his real name; and
give an address (postal or email) to which the authority can reply
Instructions on the UK Information Commissioners' website says the requester
does not need to mention the FOI or even know that whether the information is
covered by the FOI. He does not even have to explain why he wants the
information.
This is vastly different from current practice in Philippine government offices
where those requesting for information are required to justify why they should be
given access.

Limits to access
Those who are lukewarm to the proposed FOI law claim that this could allow
sensitive government information to fall in the hands of bad social elements,
"enemies of the state" or even "irresponsible media."
But FOI laws also typically set limits of access or grounds for refusal of requests.
Among the countries whose laws were reviewed by Rappler, grounds for refusal
usually include a list of exemptions, which include these types of information:
security, national defense and public safety

 information relating to unfinished/ongoing legal proceedings, investigations

trade and business/commercial interests
international relations / diplomacy
administrative matters such as inter or intra agency memoranda
personal privacy
This does not mean that the public is totally barred from accessing such
information. In some cases, information included in the exemptions list may still
be accessed if clear public interest is invoked. This is done in the appeals
process.
The FOI laws of Norway, Sweden and Japan specifically state that exemptions
may be lifted if need for access outweighs reasons for exemptions.

FULL TRANSPARENCY. A law on access to information would address accusations of bias in the
release of information and ensure that reforms will outlive the current administration.

Preserving information
Another important feature of FOI laws in countries Rappler studied are provisions
requiring note-taking, recording and archiving or protecting information.
This is a policy wherein information, especially verbal ones passed on during
meetings, are duly noted down and kept in a journal or register and is properly
archived and protected.
In the Philippines, duty to record and from time to time publish congressional
proceedings, including how members of Congress voted, has been
constitutionally mandated since as far back as the 1935 Constitution. The only
thing exempted from this mandate were proceedings on matters that may affect
national security.
In practice, however, a significant part of congressional budget proceedings,
includingrecords on amendments to the national budget, never make it to publicly
available records.
And while the Aquino administration has indeed undertaken efforts to make
budget information more transparent, information that finally came out following
thecontroversy over the Priority Development Assistance Fund and
the Disbursement Acceleration Program (DAP) clearly show that much about
government financial transactions are still hidden from the public eye.
More on Rappler's coverage of the pork barrel and other discretionary funds here.
Consider this: letters and emails from politicians requesting for release of funds
and responses to such requests would have been part of accessible information
if the Philippines had an FOI law similar to that of Sweden.

Oversight, penalties
One thing that is also clearly missing in the Philippines is a body designated to
oversee that access to information is indeed enforced. There are also no
penalties for officials who whimsically refuse requests for access.
Among the 15 countries in the Rappler study, only Denmark, Norway,
Netherlands and Finland have no independent oversight bodies. The UK, USA,
Sweden, Australia, Canada, Ecuador, Germany, Thailand, Indonesia, Japan all
have oversight bodies.
Most oversight bodies are mandated to:
actively oversee the compliance of the law
act as mediator / settle disputes
receive & examine appeals, complaints
in some cases, perform investigations
Oversight bodies need not be new government entities. In the case of Ecuador,
Sweden and New Zealand, existing bodies such as the Ombudsman, the Public
Defender & the Chancellor of Justice were tasked to investigate FOI-related
complaints.
Because they already have prosecutorial powers, the functions given to these
bodies include prosecuting offenses.
Penal sanctions are also typical of newer FOI laws, Rapplers study shows.
The United Kingdom, which enacted its first FOI in 2000, penalizes individuals
who deliberately destroy, alter, block access, conceal public info with the intention
of preventing disclosure of that info with a maximum fine of 5,000 British pounds
(over US$8,500).

Much closer to home, the Indonesian FOI punishes officials that deliberately
disregard to provide or publish public information promptly and in the process
causes harm to other persons with imprisonment of up to 1 (one) year a fine of
not more than 5,000,000.00 rupiahs (or US$428).
Think of the impact such a policy would have on information that could affect
public safety and welfare.

Proactive publication, open data, citizen audit

Perhaps the biggest argument for enacting an FOI in the Philippines is the need
to institutionalize access to government data and information online in open,
machine-readable formats.
Making information immediately accessible online is crucial to transparency as it
eliminates backlog in processing requests for access. Indias quandary, having to
manage over 2 million requests for information, highlights this need.
In addition, given available crowdsourcing technologies, access to open data
particularly data on government financial transactionscould prevent corruption
as it could empower people to monitor resources supposedly released to their
communities.

OPEN DATA. Access to budget data will empower the public to participate in the audit of government
funds

This helps hasten and widen the scope of the audit and address accusations of
political bias in the auditing of public funds. Remember, the report that the
Commission on Audit released in 2013 covered transactions from 2007 to 2009-almost half a decade too late.
As Budget Undersecretary Richard Moya said, opening up the data would "make
auditing everybody's business."
While the Aquino administration has indeed taken steps to making machinereadable information available to the public through the Open Data Portal,
Rapplers own review of the contents of the portal shows that available data still

falls far short of what is known to be kept by most government offices. In many
cases, only summaries are providednot granular, verifiable data. Data is also
not updated in a timely fashion.
Clearly, a little push is still necessary to get data guardians in government to
share their data. Such a provision in the law would also help ensure that the
initiative will outlast the current administration.
Remember the claim of the Philippine National Police that what may seem like a
surge in crime only means crime figures are reported more truthfully now?
It would be interesting to have access to crime data and see how much of what is
logged in police blotters for every station every day actually make it to national
crime statistics.

Balancing act
As Congress continues to dilly-dally on the Philippines' first FOI, it is worth noting
that in most of the countries with right to information laws, these laws have not
remained static since they were first approved.
Changes or amendments were made as part of a balancing act between access,
privacy and national security/ protection of state secrets.
Sweden, the first country to enact a law on Freedom of Information (1776),
passed a Secrecy Ordinance in 1980. In 2009, it balanced access and secrecy
through The Public Access to Information and Secrecy Act.
The United States, the first country outside Europe to adopt such a law in 1966,
has replaced, revoked, vetoed, and reinstated provisions of the law so many
times as the US government responded to issues and scandals that rocked the
White House.

In 2007, years after the 9/11 tragedy traumatized the country, the US Congress
passedThe Open Government Act of 2007. Clearly, it is possible to balance
concerns over security with the need for transparency.
At the end of the day, its really a question of whether we want to wait for another
3 decades to recover money lost through corruption, as in the case of the Marcos
wealth, or we want to prevent or reduce corruption and abuse of office by making
processes more transparent now.