Two days before delivering his first State of the Nation Address, the newly installed president signed his own version of freedom of information via an Executive Order. The E.O. is entitled: “Operationalizing in the Executive Branch the People’s Constitutional Right to Information and the State Policies of Full Public Disclosure and Transparency in the Public Service and Providing Guidelines Therefore.”
The EO mandates full disclosure of all offices under the executive branch.
Section 2 says the order covers “all government offices under the executive branch including, but not limited to, the national government and all its offices, departments, bureaus, offices and instrumentalities including government-owned and -controlled corporations, state universities and colleges.” Local government units are also encouraged to “observe and be guided by this order.” It clarifies that information refers to “any records, documents, papers, reports, letters, contracts, minutes and transcripts of official meetings, map, books, photos, data, research materials, films, sound and video recording (magnetic or other tapes), electronic data computer store data or similar data or materials recorded stored or archived.” It also “reminds” public officials to file their Statement of Assets, Liabilities, and Net Worth (SALN) and make it available for public scrutiny.
The EO creates a legal presumption in favor of access to information, public records and official records. Thus, no request for information shall be denied access unless it clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions circularized by the Office of the President. In other words, there arises the presumption in favor of the legal right of the requesting party and that the request is presumed to have been made in good faith and that such right cannot be denied unless there is a clear showing that it falls under any of the exceptions or that it falls within the purview of section 11 on identical or substantially similar requests.
The EO also makes the Department of Justice and the Office of the Solicitor General the oversight bodies that will decide on requests for information that may affect national security. If the request clearly does not fall under the exceptions identified, the office concerned should grant and release the request within 15 days. Presently, recognized exceptions based on law and jurisprudence include: matters recognized as privileged information under the separation of powers, information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, trade secret. Congress may also enact a law providing for other limitations.
While allowing access to public records, the EO also affords full protection to personal information. Accordingly, personal information in its custody or under control of government offices may be disclosed only when relevant to the subject matter of the request and the disclosure is permissible under the law. Each government office must protect personal information by making reasonable security arrangements against leaks or premature disclosure. Any employee, official or director of a government office must not disclose personal information under his custody unless so authorized under the EO or by existing laws or regulations.
Section 9 provides for the procedure governing the filing and processing of request for access to information. Thus, any person may request for needed information through a letter of request sent to the concerned office along with a valid proof of identity. No person requesting information shall be denied access unless the information sought “falls under any of the exception enshrined in the constitution existing law or jurisprudence.” The government office shall respond to the request within reasonable time but not exceeding 15 days from receipt, unless the request requires extensive search in which case the period to respond may be extended. The government office is also required to notify the requesting party of such decision. Accepting requests is free of charge unless to reimburse necessary costs.
Under section 11, government offices are not duty bound to act upon unreasonable subsequent identical or substantially similar requests from the same requesting party whose request has been previously granted or denied by the government office. This provision is to safeguard against frivolous requests and a deterrent against abuse.
In case of denial, as provided in section 13, the requesting party may appeal to the person or office next higher in authority which will be decided within 30 working days from the filing of a written appeal. He may also file an appeal before the courts following the principle of exhaustion of administrative appeal remedies. Heads of agencies and officers who fail to abide by the EO will face administrative cases and disciplinary sanctions. Under this section, denial is recognized as an actionable wrong where the aggrieved party may elevate the matter before the courts for grave abuse of discretion after exhausting administrative remedies.
It must be emphasized that the Executive Order covers only offices under the executive branch. As separate but co-equal branches, the legislative and the judiciary do not fall under its coverage. It also cannot and does not provide penalities, as that requires an act of Congress. As explained by Justice Ynares Santiago in her dissenting opinion in the case of KMU vs. Director General, Neda. G.R. No. 167798, April 19, 2006, an EO by its nature, is “nothing more than the President’s exercise of the power of control over the executive branch of the government. While it is true that the President wields executive and administrative powers and participate in rule making through delegated legislative authority, however, Congress cannot abdicate its legislative powers and delegate them, unless the Constitution and the law so grant.” Concededly, President Duterte’s E.O. is a landmark piece of presidential action; however, it is limited in scope and may not even guarantee permanency and continuity unlike when full disclosure is based on a congressional fiat. Hence, an FOI law enacted by Congress is still needed.
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