Executive Order No. 2, s. 2016 or Freedom of Information | Right to Information | THE BILL OF RIGHTS

Executive Order No. 2, Series of 2016: Freedom of Information (FOI) in the Executive Branch

Introduction

Executive Order (EO) No. 2, Series of 2016, also known as the "Freedom of Information (FOI)" order, was issued by President Rodrigo Roa Duterte on July 23, 2016. This EO operationalizes the people's constitutional right to information as embodied in Article III, Section 7 of the 1987 Philippine Constitution. It mandates full public disclosure of all government transactions involving public interest, subject to certain limitations. However, it applies exclusively to the executive branch of government due to the lack of an enabling law that encompasses all branches of government.

Constitutional Basis

The primary constitutional provision underpinning EO No. 2 is Article III, Section 7 of the 1987 Constitution, which states:

"The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law."

Scope of Application

EO No. 2, s. 2016 applies exclusively to the Executive Branch of the government. This includes the following:

1. National Government Agencies (NGAs)
2. Government-Owned and Controlled Corporations (GOCCs)
3. State Universities and Colleges (SUCs)
4. Government Financial Institutions (GFIs)

The order does not automatically apply to the Legislative and Judicial branches, constitutional commissions, local government units (LGUs), or other independent constitutional bodies. However, these bodies are encouraged to adopt policies consistent with the spirit of the EO.

General Provisions of EO No. 2, s. 2016

1. Right of Access
   The EO guarantees every Filipino citizen the right to access information, official records, public documents, and government data, which concern official acts, transactions, or decisions. This extends to government research data used as a basis for policy development.

2. Exceptions
   While EO No. 2 promotes transparency, it also recognizes certain exceptions where disclosure of information is restricted. These exceptions are aligned with existing laws and jurisprudence, such as:

   • National security (e.g., information that could compromise defense, foreign relations, and law enforcement).
   • Privacy (e.g., information involving personal privacy unless the person concerned waives the right or consents to disclosure).
   • Privileged information (e.g., communications in executive privilege, confidential commercial and financial data, court-privileged matters).
   • Trade secrets and intellectual property rights.
   • Prejudicial premature disclosure (e.g., internal deliberations of government agencies that could harm decision-making processes).
   • Information covered by anti-corruption laws, such as the Anti-Graft and Corrupt Practices Act (RA 3019).

   The Office of the President (OP) issued a Memorandum Circular on November 24, 2016, detailing these exceptions, though the courts ultimately have the final say on their application.

3. Procedure for Access
   Citizens requesting information under EO No. 2 must follow a specific process:

   • Request Submission: Submit a written request with complete details of the information sought. This can be done through online portals (such as the eFOI platform), personally, or through authorized representatives.
   • Designated FOI Officer: Each government office must have a designated FOI Receiving Officer (FRO) to handle requests.
   • Timeframe: The receiving agency has 15 working days to respond to the request. This may be extended for another 20 working days in certain cases, such as voluminous documents or if consultations with other agencies are required.

4. Appeal Process
   If a request is denied or not acted upon within the prescribed period, the requesting party may file an appeal within 15 calendar days from the notice of denial or lapse of the period. The head of the agency must resolve the appeal within 30 days from the filing.

   If the appeal is still denied, the requesting party may further appeal to the Office of the President or file a petition for mandamus in the courts under Rule 65 of the Rules of Court to compel disclosure.

5. Transparency and Proactive Disclosure
   Beyond merely responding to requests, EO No. 2 promotes proactive disclosure. Agencies are required to make their transactions, documents, contracts, budget, and performance indicators available to the public without the need for a request. This proactive disclosure is designed to minimize the necessity of formal FOI requests.

6. Monitoring and Accountability Mechanisms
   The Presidential Communications Operations Office (PCOO) is the lead agency tasked with overseeing the implementation of the FOI program in the executive branch. It regularly monitors compliance, prepares reports, and provides a centralized online platform for FOI requests.

   Moreover, government agencies must submit reports on FOI requests, including the volume of requests, response times, and outcomes. These reports are subject to public disclosure.

Key Challenges and Criticisms

1. Exclusion of Legislative and Judiciary:
   Since the EO applies only to the Executive Branch, there are calls for Congress to pass an FOI law covering all branches of government. The exclusion of the legislature, judiciary, and local government units has been viewed as a significant limitation on the people’s right to information.

2. Implementation Gaps:
   Although the FOI mechanism exists, several issues persist regarding delays in responses, arbitrary denials, and a lack of awareness among the public about the process. Not all agencies have fully implemented the proactive disclosure mandates, and there are varying levels of compliance across different departments.

3. Exceptions and the Balancing Act:
   There is a continuous debate regarding the breadth of the exceptions. Some sectors argue that certain exceptions, particularly those concerning executive privilege or national security, are used too liberally to prevent access to sensitive yet publicly relevant information. The balance between transparency and the need to protect sensitive information is an ongoing issue.

Judicial Interpretation

The courts play a crucial role in determining the boundaries of the right to information and the applicability of exceptions. In landmark cases such as Chavez v. Public Estates Authority (2002) and Chavez v. National Housing Authority (2007), the Supreme Court underscored that the right to information is essential in maintaining transparency and accountability in government. It also clarified that exceptions should be narrowly construed, and the burden lies on the government to justify any withholding of information.

Conclusion

Executive Order No. 2, Series of 2016, is a significant step towards enhancing transparency and public accountability in the executive branch of the Philippine government. While it operationalizes the constitutional right to information for citizens, challenges remain, particularly in its limited scope, the existence of exceptions, and implementation issues. Nevertheless, it serves as a foundation for advocating a broader and more comprehensive Freedom of Information law that encompasses all branches of government and promotes an open and accountable governance system.