OGP Has Failed as Platform for FOI in The Philippines

24 March 2016

By Nepomuceno Malaluan

The author is a Trustee of Action for Economic Reforms (AER), an independent policy analysis and advocacy organization working on macroeconomic and governance issues. He is also Co-Director of the Institute for Freedom of Information, a partnership program of AER and the Philippine Center of Investigative Journalism, and Co-Convener of the Right to Know. Right Now! Coalition, a network of organizations at the forefront of the campaign for the passage of a Freedom of Information Act. This piece originally was published in BusinessWorld on March 20.

When the Right to Know. Right Now! Coalition learned about the Open Government Partnership (OGP) and the Philippines’ major role in it in 2011, it immediately regarded it as a relevant platform for the advocacy to pass the Freedom of Information (FoI) Act. The OGP is a multilateral initiative led by the United States, which aims to secure concrete commitments from governments to promote transparency, empower citizens, fight corruption, and harness new technologies to strengthen governance. The Philippines was one of eight founding member of the OGP.

The coalition engaged the country’s drafting of its first Philippine OGP action plan in late 2011. In 2012 when a Philippine OGP Steering Committee was organized, the coalition actively sought and got a seat as one of the civil society representatives. However, in August 2015 when the coalition declared the death of the FoI Bill under the present administration, we also came to a decision to withdraw participation from the OGP.

What prompted our decision to withdraw from OGP, after taking an active part in the process for four years?

Some benchmarks are important for us to find meaning in engaging the OGP.

First, does the OGP provide formal access to government? This is especially significant, given the historical difficulties that come with reform advocacy. The centrality of the idea of “partnership” with citizens in OGP, as well as to be given a seat in the table, was certainly most welcome.

Second, does the access or representation come with the ability to influence the setting of the agenda or commitments? Especially in the initial phases of Philippine OGP, the government was driving both the process and the selection of commitments. Still, we knew that the process would be dynamic, and could improve over time. For instance, the second action plan represented a streamlining of commitments and an improvement in targeting, which was in part the result of the participation and dialogue.

Third, does OGP have an operational role in the implementation of commitments? Having some operational role in the implementation of commitments can enhance process buy-in, deploy the partnership approach to allow timely adjustments, and help expand the level of participation by government agencies.

The OGP has yet to make an appreciable advance towards the direction of having an operational role in commitment implementation. The scope of OGP work has so far been confined to the identification of areas for commitment; determining “stretch” of targets; monitoring and updating of implementation by identified lead implementing agencies; and reporting and feedback mechanisms.

One result of this limited scope of work is that the implementation of commitments becomes quite separate from the OGP process, reducing the necessity for an implementing government agency and their own CSO partners to engage the OGP process more actively and substantively. There is also the tendency for the commitments to focus on areas of immediate operational influence of the OGP lead agency, in this case the Department of Budget and Management.

The problems arising from such limitations are becoming apparent in both process and results. For example, the lack of engagement of Congress has not helped the push for commitments with legislative components. Also, initiatives such as the Open Data Portal could have benefited from the inputs of the primary data generators and existing data aggregators, such as the National Statistical Coordination Board the Bangko Sentral ng Pilipinas and the Philippine Statistics Authority.

The fourth question is most crucial. Is the OGP able to deliver fundamental, transformative results?

This is where we have a difference of perspective with our government partner in OGP. We believe that a firm commitment to pass the FoI law, and matching such commitment with decisive action, was a necessary and fundamental pillar of a credible OGP action plan. It is an anchor to the main aims of OGP to scale up transparency, empower citizens, and fight corruption.

It is argued that the proactive disclosure initiatives such as those embodied in the other OGP commitments implement the principles of FoI. While they do in part, it is far from complete, for two reasons.

One, the breadth of the classes and topics of information needed by citizens inherently makes it impossible for any government to meet only by means of existing proactive disclosure and open data initiatives.

In the coalition’s experience from the FoI practice of its member organizations, the requests covered various classes of records, such as data, reports, accounts, or studies. They also covered a broad range of topics and concerned agencies, including in agrarian reform, economic policy, school improvement plans, private sector information collected by regulatory agencies, information relating to Overseas Filipino Workers, rehabilitation budgets, and so on. The purposes for the information needs also differ, and cover research and advocacy, claiming of rights, demand for better services, participation in policy making, and accountability.

Two, with regard to information requested from government agencies, the performance of agencies was mixed.

There were bright spots of offices providing the requested documents promptly and completely. But there were many problem areas as well, including lost letter-requests that needed to be resent, constantly busy phones or unanswered phone calls during follow-up, requests completely ignored, incomplete information released, requests taking more than 30 days to months to be responded to and only after numerous phone calls, referral to other offices, and the common need for approval of the requests by higher officers.

Necessarily, proactive disclosure and open data initiatives MUST be coupled with effective and responsive request-based access, secured by a law as a matter of right in terms of scope, administrative procedure, remedies and redress. This is what the FoI law would have helped secure in conjunction with the existing constitutional right to information.

The Aquino administration has built a narrative of standing on a platform of good governance, taking a pioneering role on openness, and initiating lasting reforms. This raised even more the expectation that the fate of FoI will be different under this administration from previous ones.

In truth, a full presidential term, and two terms of Congress led by the President’s allies, would be more than enough time to get the job done. Unfortunately, the actions within the President’s prerogative, and consequently among his allies in Congress, fell way short.

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