Press Release
December 16, 2013

Transcript of plenary interpellation on the Freedom of Information bill

Sen. Grace Poe: Each particular department will have their own manual for FOI which is required to be published in their website. For the Senate for example, the Senate leadership could designate an FOI desk to accept any query on general topics about the Senate and if there's a particular question for a particular Senator, but this will be in compliance with the rules set forth by the Senate as a body. For practical reasons and efficiency, each agency should have an FOI desk.

Sen. Loren Legarda: I support the measure. I would suggest at the proper time, that certain uniformity in the implementation of the law, regardless whether agency is in the legislature or in the executive.

Sen. Poe: There are certain unchangeable things set forth in the law. For example, the period of compliance is within 15 working days from the time the request was made through writing or electronic means.

Sen. Legarda: Under Sec. 3, paragraph C of the proposed measure, records are defined as to include "information required by law, Executive Orders, rules or regulations to be entered kept and made publicly available by a government agency." There is a need to clarify public records vis-a-vis public documents as defined under Section 19, Rule 132 of the revised rules on evidence...When we say public records, do we exactly mean public documents as defined by the rules of court?

Sen. Poe: Information in particular as defined in our bill...1733--- include documents, papers, reports, etc. or any similar data recorded or stored in archive, and any Eos, rules, ordinance, or transaction of official business by any government. Basically, any official information held by the government, or any office transaction or discussion shall mean the information as defined in SB 1733.

Sen. Legarda: By public record do we mean public document as defined under the rules of court? Would public documents have another definition with public records? Or could we use it synonymously under the rules of court?

Sen. Poe: Our definition of terms in our bill should not cause confusion. It does not contradict the rules of court. The definition of public records can be used as a reinforcement of definition of the rules of court.

We will examine the exact definition of the rules of court with regards to public information so as to ensure that we don't contradict and only reinforce this particular definition. I thank the good Senator for bringing this up, so we don't have any inconsistency or any definitions that might be against current definitions already set forth by law.

Sen. Legarda: Would public records include personal information of government officials?

Sen. Poe: There's certain personal information of government officials, for example the SALN that are already public records. But we still maintain certain parts of the right to privacy as upheld in the exceptions. For example, the names of children or where they go to school. If it has no relevance to public matter then it should be deemed protected.

Sen. Legarda: What personal information can be deemed personal information, by let's say, the COMELEC? Basic information when we file our certificate of candidacy are made public and our SALNs are also made public. What else would be required from the public official apart from information already included in the COMELEC and SALN?

Sen. Poe: Information, particularly, the ones we provide in the Comelec are relevant information. Sec. 10 (of SB 1733) specifically protection of privacy which you don't necessarily lose just because you are a public official. For example, government agency must ensure that personal information in its custody is disclosed only as permitted. Unless specified like SALN or with direct relation to particular transaction in government or if there's a question as to a lifestyle check on a particular public official and he needs to divulge information not stated in his SALN I don't see any reason why there should be an expansion that is a public interest and a public good that should be revealed.

Sen. Legarda: Under section 4, on coverage "public service contractors or any other entity should make their records available to the public insofar as they are related to any contract or transaction hey have with government agency..." It would appear that the request to disclose information will only apply when the contractor has been awarded the project and not during the course of bidding process. Is this the intention of proposed law?

Sen. Poe: It is meant to provide details of bidding after award has been given. On the other hand, during period of amendment we can take into consideration certain profile and information of a company. For example, their capitalization, or anything in particular that might make them capable of joining a particular bidding. Information they provide to stockholders should also be made available to public if they are interested in bidding for a particular project.

Sen. Poe: Yes Mr. President, this is a good point that was raised. It is meant to provide the information particularly the details of bidding after the award has been given. On the other hand, I think that during the period of amendment, you can take into consideration certain profile information of the company for example the capitalization or anything in particular that might make them capable of joining a particular bidding. While it is our intention to protect the information of the secrecy of the bidding process, certain information regarding the company for example, their public records that has to do with their income, or expenses or certain audits performed of them by an independent auditor that they provide to their stockholders should also be made available to the public if they are interested in bidding for a particular project with the government.

Sen. Legarda: Mr. President, a suggestion to the chairman of the committee, it might be prudent to consider also that before the final award of the project, the head of agency should make the records of the potential awardee of public record, many cases of corruption stem from machinations during the bidding process and the FOI bill should be a tool to curb this. So it should be not just post awarding of the project perhaps even during or before the bidding at least as you said the profile of the capitalization, and project before so that we can see the capacity even before the award is given.

Sen. Poe: Yes Mr. President, this is very an important point that corruption happens and sometimes the Senator from Cagayan de Oro that there are certain things by the time it is ratified it is too late for us to be able to rectify certain things for example like the profile of the company, capitalization as mentioned, should be made available if they're interested to bid coz many times Mr. President, a bid is awarded to a company and there's a question on how this company win a particular bid a multi-million bid for example when their capitalization is less than fifty thousand pesos so I think that certain provisions or certain information or history should be revealed prior to the opening to the bill and also or prior to the awarding of the bill and also I think we should specify what minimum information should at least be available for the announcement of the bid result.

Sen. Legarda: I recall Mr. President during one of our hearings on alleged rice smuggling there was a Senator who mentioned about, is it a company or names of persons who actually got the right to export or import rise but that person or group that it skip me now that we are not actually financially capable to do so and so the rights or sub contracted it to some deals what I'm saying is that whether it is a public works project or alleged rice smuggling or an NGO, foundation, etc., this could actually make the head of agencies make their life easier and conceive even the lawmakers from being accused if this was done beforehand then NGO's which have zero capitalizations or minimal ghost board members would not have had government projects unfortunately lawmakers are blamed and head of agencies unknowingly gave it and there is no clarity or transparency and unwittingly perhaps , head of agencies and even lawmakers are accused without them knowing because there is no transparency in the recipients of this government funds so perhaps even before the award is given to any contractor to any NGO, assuming NGO's are still allowed, and to anyone whether it is in rice or hard infra etc. there must be a sufficient information so that the head of agency could be also assisted in making an enlighten decision.

Sen. Poe: I agree Mr. President, certainly I think that there should be guidelines not to over legislate but I think to a minimum we should mention certain things that companies interested to bid with the government should actually provide in the pre awarding of the bid time period like capitalization, history of other project so that since the FOI seeks to encourage participative constituency we should give them the means to actively participate with the proper information that would help them ask intelligent questions, so the profile of the company is very important, and also as aside Mr. President, I read recently that there is a clean up initiative in Iloilo for the oil spill and the award is given to a particular company if I read it right and after the award has been given to this company when they checked the profile of the company they realized that for a hundred million project that this company won, the capitalization of this company is even less than a hundred thousand so I think that there was question about that and they declared failure of bidding so it take so much time and the good senator is correct to point out that prior to the awarding of the bid we should have the means to be able to the ask questions so that we would unburdened the head of agencies having to be purely responsible for the awarding of the bid to a particular company.

Sen. Legarda: Thank you for that. Other sections 7 paragraph A of the Bill one of the exceptions is that and I quote "The information is specifically authorized to be kept secret under guidelines established by an executive order and in fact properly classified pursuant thereto. This would appear to add to the list of many executive privileges granted to the office of the President. However this sentence is followed by a proviso paragraphs 1 and 2, provided that one, the information directly relates to National Security or Defense and its revelation may cause serious damage to the National Security or Internal and External defense of the state or two, the information requested pertains to foreign affairs of the Republic of the Phillippines on its revelation shall duly weaken the negotiating position of the government or ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines with any state provided further that the Executive Order shall specify the reasonable period after which the information shall be automatically be classified or subject to mandatory declassification review and that any reasonable doubt as to the classification and declassification shall be settled in favour of the right to information" My question Mr. President is does this mean that even there is an executive order but it does not fall under the list in the proviso then it's still not be considered as an exemption under this paragraph?

Sen. Poe: What do you mean even if there's what order Ms. President?

Sen. Legarda: The information it says is authorize to be kept secret under guidelines established by the executive order that is a propose measure however it is followed by the proviso I've just read . First it directly relates to National Security, second the information pertain to Foreign Affairs or bilateral and multilateral negotiations etc. so my question is if it is contained in an E.O and not covered by National Security and does not impact bilateral and multilateral negotiations one of the other, would it still be considered as an exemption, or in the Executive order or one of the other of the two provisos?

Sen. Poe: No, not necessarily Mr. President. The President has the power and privilege to cover the confidentiality of a particular information

Sen. Legarda: Perhaps we could also inquire with both NICA, etc. Because we cannot say it's automatically declassified. We must find out whether it will be to the best interest of the nation.

Sen. Poe: Yes, Mr. President, in fact we've conducted public hearings together with NICA, the PNP, DOJ, the AFP and other agencies concerned with national security and this is actually their collective suggestion which is really to have a period of declassification even for national security matters. Just like in other countries, it takes decades sometimes but after a while all this information is declassified like the Kennedy investigation and other matters of national interest

Sen. Legarda: Perhaps the committee could check whether there should be a specific sentence on declassification. Perhaps we could again be careful about this because it's about national security. And perhaps we could do a committee consultation with NICA or perhaps look at the FOI of other countries, but maybe ours is unique and see if there should be a declassification at all with regard to national security issues.

Sen. Poe: Yes, Mr. President and in fact other countries specify a period of declassification and that was the main goal that we are trying to achieve here and in the end all government information and action should be known to the public.

Sen. Legarda: The determination whether any of this ground should apply should be the responsibility of the head of office or government agency in custody or control of the information or any responsible central or field officers duly designated by him provided that 1. The exceptions ate strictly construed. 2. The exceptions are not used to cover up a crime, wrongdoing, graft or corruption. 3 the president, supreme court or House of Representatives, constitutional commissions may waive the exception with respect.

Sen. Poe: If there is some malicious intent to omit a particular info to cover up a crime or wrongdoing then it is considered a violation of the Freedom of Information Act. So, when you say a particular crime, graft, wrongdoing, anything that is actually used, if FOI is used to cover up a crime or any violation of the law, and it is not used or the confidentiality is not enforced to protect public interest then the public official will be liable for having violated the FOI.

Sen. Legarda: is the head of agency given the prerogative to decide for himself/ herself teven without consultation or without majority vote of the members of that agency. F its senate, can the SP simply give out the information without informing the senator or having a majority vote of the senators.

Sen. Poe: For example, Mr. President, if it's not been discussed in caucus or in executive session, I think that the SP for example can make the decision to reveal the info if he feels that it is overriding public interest to give out such information, however, if it is discussed in executive session then I would assume that there has to be a vote within senate. The FOI will not deviate from a collegial body's mandate to act as such Mr. President

Sen. Legarda: I'm just looking forward in the coming years, if we look back into our law there could be possible conflicts when a speaker of the house or the SP can give info relating to a senator without the majority vote or without the knowledge of the senator so it would be difficult to have a gray area because it would really lead to possible conflicts of interest.

Sen. Poe: I think so Mr. President, however there are very explicit exceptions to the FOI as I've mentioned, if it doesn't fall under the right to privacy or for example, national security, I think that the discretion part of the head of agency is clearly limited also.

Sen. Legarda: We can fine tune it at a proper time. About how we could clarify this provision so that there will be no misinterpretation by the head of agencies, so that also we will not be faulted in the future.

Sen. Poe: Yes, Mr. President, that is much appreciated and we will certainly fine tune whatever is it to avoid confusion and misinterpretation.

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