Access to Information Legislation (PH0049)

What is the public problem that the commitment will address?: Section 7 of the 1987 Philippine Constitution emphasizes the right of the people to information on matters of public concern. However, 29 years since the first Freedom of Information (FOI) bill was filed, the Philippine Congress has yet to pass a legislation that promotes access to information.; What is the commitment?: Passage of a Freedom of Information Law; How will the commitment contribute to solve the public problem?: To have Congress pass legislation on access to information which will mandate the disclosure of government information, from all three branches to the general public. Passage of the FOI Law will ensure that government efforts on transparency will become the norm and will institutionalize disclosure of government-held information. Also, enacting an FOI law shall not only foster a culture of transparency but shall empower citizen to hold government accountable by monitoring the use of public funds and the delivery of public services.; Why is this commitment relevant to OGP values?: The passage of a Freedom of Information Law is crucial for Filipino citizens to exercise their right to access governmentheld information. It empowers citizen participation in demanding for transparency and accountability from the government. The Law will mandate all branches of the government to disclose all documents as well as the procedures for accessing these documents. Transparency- all government agencies shall be mandated to proactively access or provide access to information of public concern, unless such is proven to fall within limited and strictly construed exceptions. Accountability- all government agencies shall be made to comply with uniform standards on the disclosure of public information. Furthermore, enactment of an FOI law will empower citizen participation in holding governments accountable to its people.; Additional information: Here are some developments in the FOI program: • On June 2016, House Bill 334 entitled “An Act to Ensure Public Access to Official Records, Documents and any other Information of Public Concern was filed in the House of Representatives for the 17th Congress. • On July 2016, President Duterte signed Executive Order No. 2 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 Therefor”. • On October 2016, the Senate Committee on Public Information and Mass Media submitted Senate Bill 1208 or the People’s Freedom of Information Act which consolidates 14 bills filed by senators. It is now up for plenary debates in the Senate. • On November 25, 2016, 120 days after the publishing of EO No. 2, the PCOO, as directed by President Duterte, launched the FOI program and the eFOI portal (www.foi.gov.ph). • Memorandum Order No. 10 signed by the Executive Secretary mandates the PCOO as the lead implementing agency for the delivery of the EO No. 2. • The FOI Program under the Executive Branch is one of the commitments of PCOO in the Philippine Development Plan 2017-2022 under Chapter 5: Ensuring People-Centered, Clean, and Efficient Governance, Sub-sector Outcome 4: Citizenry fullyengaged and empowered, with the following commitments: o Submission of FOI Manuals to the Office of the Executive Secretary o Onboarding of NGAs and GOCCs in the eFOI portal (www.foi.gov.ph) o Completion and publishing of Agency Information Inventory • Under the 2017 Performance-Based Bonus Guidelines, publishing of the FOI Manuals of agencies is now one of the requirements for eligibility for the said bonus.

5. Passage of Legislation on Access to Information

Commitment text from action plan:

“Passage of a Freedom of Information Law”

Milestones:

1. "Through Philippine OGP, organize three (3) Roundtable Discussions/Workshops on the substantive provisions of the FOI Bill with pilot agencies and civil society.
2. Issuance of a policy on governance structure and interagency engagement (creation of Inter-Agency Committees, technical Working Groups, Steering Committees)
3. Creation of a new office for Access to Information within PCOO
4. Onboarding 100% of agencies under the Executive branch on the FOI portal (http://www.foi.gov.ph)
5. Conduct of 180 information, education, and communication (IEC) campaign activities for stakeholders to bridge supply and demand for information
6. Research and evaluation of FOI program implementation under the Executive branch
7. Passage of the FOI Bill
8. Transition of FOI implementation from PCOO to FOI Implementing agency as defined by the FOI law.
9. Establishment of a National Information Inventory on the eFOI portal
10. Passage of the FOI Bill"

Editorial Note: For the complete text of this commitment, please see Philippines’ action plan at https://www.opengovpartnership.org/wp-content/uploads/2018/06/Philippines_-Action-Plan_2017-2019_updated.pdf

Context and Objectives (Commitment Design)

The commitment aimed to pass a FoI Law to ensure that government efforts on transparency would become the norm and would institutionalize disclosure of government-held information. In addition to getting the bill passed, the commitment also sought to enhance the access to information institutional framework in the executive branch to improve implementation of the executive order for public access to information in the executive branch.

The 1987 Constitution guarantees the right of access to information by Filipino citizens. Beginning with the 8^th Congress, a Freedom of Information (FoI) Bill has been filed several times over the past 32 years. ^[77] One of the OGP commitments of the previous administration of Benigno Aquino was to pass a FoI Law. ^[78] The administration’s inability to secure the passage of this legislation was a serious blow to its good governance credentials. ^[79] On 23 July 2016, the Duterte administration signed Executive Order (EO) No. 02, s. 2016 providing guidelines for public access to information in the executive branch. Enforcement has mainly been the responsibility of the Presidential Communications Operations Office (PCOO). ^[80] The EO was accompanied by the launch of an online eFOI portal administered by PCOO, which initially included 15 government agencies. ^[81]

If fully implemented as written, this commitment was expected to have moderate potential impact. The passage of the law represents an important step in this policy area and serves to strengthen the access to information mandate in the Philippines. A law would ensure comprehensive application of FoI across government, addressing the EO’s limitation to only the executive branch. However, while the commitment’s main goal is to pass the FoI law, most of the activities center on improving the access to information institutional framework in the executive but does not have a clear strategy to actively seek legislative reform. 

Commitment Implementation

This commitment’s implementation was substantial at the end of the implementation period, but the main milestone for Congress to approve the FOI bill was still pending. According to the government’s end-of-term self-assessment report, ^[82] a majority of milestones the executive branch had implemented were substantially completed.

Particularly relevant to the value of access of information was the onboarding of government agencies on to the eFOI portal (milestone 4), which included data from 447 national government agencies by 2019 (98% of all agencies), in addition to data from government-owned and -controlled corporations (GOCCs), state universities, and colleges, and—to a lesser extent—local water districts. This portal shows all data requests submitted by citizens, and the responses they received from each agency, which is an innovation in information accessibility. ^[83] The government also organized two workshops and regional dialogues related to FOI in the country (milestone 1), ^[84] campaign activities focused on CSOs (milestone 5), and many dissemination activities regarding FOI.

The commitment led to major changes in open government. The main change triggered by this commitment was the onboarding of government agencies onto the eFOI portal, which includes a public mechanism to respond to citizens’ requests. From the time the EO was approved in June 2016, the number of government agencies on the portal increased from 15 to 447 at the end of the implementation period. The Presidential Communications Operations Office (PCOO) had required all executive agencies onboarded on the platform by November 2017. ^[85] According to PCOO, the onboarding of agencies on the portal and the concurrent outreach activities (milestone 5) resulted in an increase in the number of successful eFOI requests. ^[86] Starting from a baseline of 0% in 2016, the resolution rate increased from 41% to 47% (i.e., nearly 5 out of every 10 FoI requests were met by state agencies) between 2017 and 2019. ^[87] This confirmed that operationalization of the eFOI portal constituted an improvement in the channels available to citizens for requesting information, and a PCOO representative described implementation of the EO on FoI as “thriving and strong.” ^[88]

Despite this success, however, during the implementation period, certain civil society organizations such as the Philippine Center for Investigative Journalism (PCIJ) reported mixed results when filing requests through the online FoI portal (eFoI). ^[89] The nationwide coalition Right to Know, Right Now! (R2KRN) also reported only 12% positive results in using the EO on FoI. ^[90] This demonstrated the continuing challenge of guaranteeing access to information even with the executive order. ^[91] 

In addition, the FoI Bill itself is also still pending approval, which further limits the extent to which this commitment opened government. Although passage of the bill alone would not have, at least immediately, led to changes in government practice, the bill would have provided a legal framework to improve access to information.

Next steps

The IRM shared the following recommendations with stakeholders during the prepublication review period for the design section of this report. They are included below for public record. ^[92]

In future action plans, the IRM researcher recommends that the government links the milestones of this commitment to the primary goal of passing a FoI law. It would be helpful to build evidence of the impact of eFoI implementation of milestones to support the passage of the law. The IRM researcher also recommends a more targeted approach to awareness raising and education, to audiences that have higher chances to use the eFoI, like researchers, media, civil society leaders, and professionals working in specific policy areas. This could also help increase use of eFoI.

The IRM also recommends a closer look at the appeals system because this is critical in ensuring that the public can seek redresses if it thinks its right to information is not met by the FoI program. It is recommended the government pursue a prioritization system to manage this challenge. For example, cases of denial of access to information on “high-profile” requests, in other words, those involving core policies affecting the most fundamental rights or with nationwide/ encompassing effect could be the first ones to be reviewed and resolutions could be made publicly available.