President of the Philippines Issues FOIA Executive Order

25 July 2016

The new president of the Philippines, Rodrigo Duterte, has signed a freedom of information executive order.

The six-page order signed July 23 outlines policies and procedures for accessing public information, accomplishing much of what the Congress has been unable to do by legislation. (See image of text here.) Read articles in The Rappler and The Philippines Star.

One key element – exemptions ­– still must be fleshed out. Duterte tasked the Justice Department and the Office of the Solicitor General with preparing an inventory of exemptions consistent with the Constitution within 30 days.

Since the signing, several commentators have written cautions about the missing exemptions language and expressed hope that Congress will pass a FOI law. The president did not mention FOI legislation in his State of the Nation address given several days after signing the EO.

Vincent Lazatin, Executive Director of the Transparency and Accountability Network, reviewed the EO, commenting, “Until the list of exceptions is official, a full evaluation of the EO must wait.” He also said, “Legislation is still needed to include the whole of government is covered, to clearly and narrowly define the exceptions, and to impose criminal penalties for the unlawful denial of information.” Similarly, Mel Sta.Maria wrote for Interaksyon that “the devil is in the details.”

Looks like a Law

Otherwise, in most respects the order reads like a FOI law, with a broad scope (all executive branch offices), deadlines (15 days  with extensions possible)), fees (reasonable costs of duplication), appeals (to agencies and the courts) and more.

The directive 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 governments are encouraged to “observe and be guided by this order,”

The order covers “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 “reminds” public officials to file their Statement of Assets, Liabilities, and Net Worth (SALN) and make it available for public scrutiny.

“There shall be a legal presumption of favor of access to information, public records and official records. No request for info shall be denied unless it clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions,” the order read.

The order includes recognition of a right to privacy, but the other exemptions are yet to be prepared

Requests may be made by Filipino citizens. Government officials are instructed to provide free “reasonable assistance” to requesting parties.

The fees language does not categorically rule out charges for finding documents. It says agencies “may charge a reasonable fee to reimburse necessary costs, including actual costs of reproduction and copying of the information requested, subject to existing rules and regulations.” The order continues, “In no case shall the applicable fees be so onerous as the defeat the purpose of this order.”

Denials may be appealed to the person or office next higher in authority. Requesters must appeal in 15 days and appeals must be decided within 30 days, according to the order.

Once administrative appeal remedies have been exhausted, the requesting party may file a case before the court.

Heads of agencies and officers who fail to abide by the EO will face administrative cases.

All agencies were asked to come up with their respective FOI procedures  within 120 days from the effectivity of the EO (following newspaper publication). All agencies were told to prepare a “People’s FOI Manual” that will include the location and contact details of offices where the public can submit requests and the schedule of applicable fees.

Senator to Push for Legislation

Sen. Grace Poe, a leading supporter of FOI legislation, called the order “a milestone” while noting that the exemptions lists is yet to come and saying “they need to be clear what the penalties are for government officials who will fail to comply with this Executive Order.” She continued, “Because if it’s just a slap on their wrist or it’s just a minor penalty then there’s no motivation to actually comply with the law….”

She also said: “I think we will need a monitoring body later on which can be specified in an actual freedom of information law but since now the government has signed an executive order, we thank the president. It only covers the executive branch so perhaps those bodies that are monitoring it are sufficient for now at least how this particular EO will be implemented by the government.” Poe indicated she would push for passage of a FOI law.

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