Right to Information | THE BILL OF RIGHTS

The Right to Information under the Bill of Rights

The right to information is enshrined in the 1987 Philippine Constitution under Article III, Section 7 of the Bill of Rights. This provision guarantees the people’s right to access information on matters of public concern, which plays a critical role in a functioning democracy. The provision reads as follows:

“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 a basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.”

Key Elements of the Right to Information:

1. Matters of Public Concern

   • The right to information pertains only to matters of public concern. The Constitution does not define what qualifies as a matter of public concern, and this is generally determined by the courts on a case-by-case basis.
   • However, as a general principle, information that affects public interest or involves the duty of government officials in performing their functions is considered as such. The Supreme Court has ruled that the test of public concern is not easy to determine and will largely depend on the factual context of each case.
   • In Legaspi v. Civil Service Commission (1987), the Supreme Court ruled that information of public concern includes official records, documents, or any data that involves the transparency of government actions and decisions.

2. Scope of the Right

   • The right to information applies to official records, documents, papers pertaining to official acts, transactions or decisions, and government research data used as a basis for policy development.
   • The right is not confined only to completed official acts, but also to information regarding ongoing public matters or pending government actions.
   • It has been held that the right to information includes access to contracts, bids, public funds expenditure, and any matter relating to public accountability.

3. Limitations to the Right

   • The right to information is not absolute. The Constitution itself provides that the right is subject to limitations as may be provided by law. These limitations may include restrictions based on national security, confidentiality of sensitive government records, or other reasons of public interest.
   • Examples of such limitations include executive privilege, the confidentiality of information pertaining to diplomatic negotiations, and information related to military or defense matters.
   • In Chavez v. Public Estates Authority (2002), the Court emphasized that while the right to information is a means of promoting transparency, it is not without reasonable limits. It noted that access to certain information might be restricted to safeguard state secrets, trade negotiations, or internal communications.

4. Executive Privilege

   • One of the key limitations to the right to information is executive privilege. The concept of executive privilege allows the President, or other high-ranking officials, to withhold certain information from the public, especially in matters involving national security, diplomatic relations, military affairs, and presidential conversations.
   • In Senate v. Ermita (2006), the Supreme Court ruled that executive privilege is not absolute and must be specifically invoked. When executive privilege is claimed, the court has the final authority to determine if the claim is valid based on the parameters of national interest.

5. Procedural Mechanism

   • The Freedom of Information (FOI) Program, initiated by Executive Order No. 2 (s. 2016), operationalizes the right to information. It mandates all government offices under the Executive Branch to make public records available for disclosure upon request by any citizen, except for information falling under the list of exemptions provided by law.
   • The FOI Program provides a formal procedure for accessing information. It includes steps on how to file a request for information, timelines for government offices to respond, and a system for appeal in cases of denial.
   • Local government units (LGUs) and other branches of government, such as the judiciary and legislative branches, are encouraged to adopt their own versions of the FOI Program.

6. Judicial Interpretation

   • The Supreme Court of the Philippines has been pivotal in interpreting the right to information. In several landmark cases, the Court has reiterated the importance of this right as a mechanism for promoting transparency, accountability, and participatory governance.
     • In Tañada v. Tuvera (1986), the Supreme Court affirmed that government agencies have the duty to disclose information to the public, particularly with regard to laws and regulations that affect the people.
     • In Chavez v. National Housing Authority (2007), the Court highlighted that the right to information is a tool for public participation in governance and for checking government abuses. In this case, the Court held that contracts entered into by the government using public funds must be disclosed to the public upon request.
     • Chavez v. PCGG (1998) further underscored that information relating to the use of public funds is a matter of public concern, and that the government has a duty to disclose such information to the public.

7. Relation to Other Constitutional Rights

   • The right to information is closely related to other fundamental rights, such as the freedom of expression and freedom of the press. The right to information complements these rights by ensuring that the public and the media have access to the information they need to form opinions and hold the government accountable.
   • It is also tied to the principle of transparency and accountability in government, which are cornerstones of democratic governance.
   • The Supreme Court has ruled that the right to information, particularly regarding public funds and government transactions, is indispensable in ensuring that citizens can meaningfully exercise their right to participate in public affairs (as in Chavez v. Public Estates Authority (2002)).

8. Enforcement of the Right

   • The right to information can be enforced through the courts via writ of mandamus. A citizen may file a petition for mandamus to compel government agencies to release information that has been unlawfully withheld.
   • In Legaspi v. Civil Service Commission (1987), the Supreme Court ruled that any citizen has the legal standing to file such a petition, as the right to information is of public concern, and thus, any denial affects the general public.

Conclusion

The right to information under the 1987 Philippine Constitution is a powerful tool for promoting transparency, accountability, and participation in government processes. While it is a fundamental right, it is not absolute and is subject to reasonable limitations to protect national security, privacy, and other interests of public welfare. Judicial precedents have further clarified and expanded the scope of this right, making it an essential element of a functioning democracy.

R.A. No. 11032 or the Ease of Doing Business Act | Right to Information | THE BILL OF RIGHTS

R.A. No. 11032 - Ease of Doing Business and Efficient Government Service Delivery Act of 2018

Overview

Republic Act No. 11032, or the Ease of Doing Business and Efficient Government Service Delivery Act of 2018, aims to streamline government procedures to promote business competitiveness by reducing bureaucratic red tape and expediting the issuance of permits, licenses, and certificates, among others. The law primarily enhances the right to information under the Bill of Rights by ensuring that government transactions are transparent and efficient, giving the public greater access to timely government services.

Objectives

1. Simplification of Government Processes - The Act mandates the government to streamline procedures and eliminate unnecessary steps in securing business-related documents.
2. Citizen-Centric Services - It aims to improve public access to government services, thereby reinforcing the people's right to information on matters affecting public interests.
3. Promoting Transparency and Accountability - By enforcing strict processing deadlines and penalizing government employees for non-compliance, the Act fosters transparency and accountability.
4. Enhancing Business Competitiveness - The ultimate goal is to create a business-friendly environment to encourage local and foreign investments by removing unnecessary bureaucratic hurdles.

Key Provisions

1. Processing Time Limits The Act sets clear time limits within which government agencies must act on applications for licenses, permits, certifications, and other services. The law provides the following standard timelines for processing:

   • Simple Transactions: Maximum of 3 working days.
   • Complex Transactions: Maximum of 7 working days.
   • Highly Technical Transactions: Maximum of 20 working days.

   Any application not processed within these periods will be deemed approved by default, provided all required documents have been submitted and all government fees paid.

2. Zero-Contact Policy

   • A "zero-contact policy" is mandated for the submission of requirements. This means that once an application or request is filed, no further direct contact with the applicant is allowed, unless an inspection is required.
   • This provision is crucial in preventing corruption and ensuring fairness in the processing of permits and other regulatory documents.

3. Single or Unified Business Application Form

   • The law requires all local government units (LGUs) and national government agencies to implement a single or unified business application form. This form integrates applications for business permits, clearances, and certificates, reducing the need for applicants to fill out multiple documents.

4. Business One-Stop Shops (BOSS)

   • LGUs are mandated to set up Business One-Stop Shops (BOSS) where all processes related to the application for business permits and licenses are centralized.
   • This makes it easier for businesses to comply with government regulations in a more efficient and organized manner.

5. Automated or Electronic System

   • Government agencies and LGUs are encouraged to adopt automated systems to reduce processing time and enhance the efficiency of public services.
   • A Philippine Business Databank is established, accessible to all government agencies, where they can verify the legitimacy of businesses to avoid redundant document submissions.

6. Anti-Red Tape Authority (ARTA)

   • The law establishes the Anti-Red Tape Authority (ARTA) under the Office of the President, which serves as the overseeing body responsible for implementing R.A. No. 11032.
   • ARTA has the power to receive and act on complaints regarding non-compliance with the provisions of the Act. It is also tasked with conducting audits and recommending reforms to streamline government processes.

7. Penalties for Non-Compliance

   • Government officers and employees who fail to process applications within the prescribed time limits or demand additional fees not stipulated by law will face strict penalties, including:
     • First offense: Administrative liability with a 6-month suspension.
     • Second offense: Administrative and criminal liability, with a penalty of dismissal from public service, perpetual disqualification from holding public office, forfeiture of retirement benefits, and imprisonment of 1 to 6 years.

8. Streamlined Processes for National Government Agencies

   • National government agencies involved in issuing business permits and licenses, such as the Department of Trade and Industry (DTI), Bureau of Internal Revenue (BIR), and Securities and Exchange Commission (SEC), are required to streamline their processes in line with R.A. No. 11032.
   • These agencies must ensure that their procedures are simplified and that timelines are adhered to strictly.

9. Judicial Recourse

   • If an applicant believes their rights under the Act have been violated, such as if their request for a permit is unduly delayed, they may take legal action. Courts may issue mandamus orders to compel government offices to comply with the law.

Relationship with the Right to Information under the Bill of Rights

The right to information, enshrined in Section 7, Article III of the 1987 Constitution, grants Filipino citizens the right to access official documents, records, and government information of public interest. R.A. No. 11032 reinforces this constitutional right in several ways:

1. Enhanced Transparency - By mandating government agencies to act swiftly and disclose clear procedures for business transactions, the public's right to information is given practical effect.
2. Accountability - The law holds government officials and agencies accountable for delays and inefficiencies, making the process more transparent and reinforcing the right to know.
3. Data Availability - The establishment of the Philippine Business Databank and the streamlining of documentary requirements reduce the need for businesses to repeatedly submit the same information, thereby promoting ease of access to data by the public.
4. Public Service Efficiency - The simplification of processes means that government data, forms, and services are more accessible to the public, empowering citizens and businesses with the information they need without unnecessary delays.

Role of Public International Law

While R.A. No. 11032 primarily affects domestic transactions, it has implications for public international law, particularly concerning commitments to international standards on transparency, anti-corruption, and ease of doing business. The Philippines, as a signatory to various international agreements promoting good governance and anti-corruption measures, such as the United Nations Convention against Corruption (UNCAC), aligns its domestic laws with these international principles through acts like R.A. No. 11032.

The law also supports the Philippines' commitments under the World Trade Organization's (WTO) Trade Facilitation Agreement (TFA), which requires member-states to streamline customs procedures and improve transparency to facilitate international trade. By improving the business environment, the Philippines boosts its global competitiveness and complies with its international obligations.

Conclusion

R.A. No. 11032, or the Ease of Doing Business Act, is a vital legislative reform aimed at eliminating red tape and improving government efficiency. Its provisions on streamlined processes, strict deadlines, accountability, and transparency reflect the broader constitutional right to information. Through the enforcement of these provisions, the law supports the Philippines' international commitments to transparency and competitiveness while directly benefiting the domestic business landscape and enhancing public trust in government services.

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.