Monday, July 25, 2016

MEL STA.MARIA | EO on the Freedom of Information: the devil is in the details

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July 24, 2016 10:46 PM

President Rodrigo Duterte has signed the Executive Order (EO) on the Freedom of Information. For many, it is a laudable act, but the rejoicing may be dampened once the EO is implemented. As they say, “the devil is in the details.” A close scrutiny of the EO provides its own causes for ineffectivity.

Section 7 of the Executive Order provides:

Section 7. Protection of Privacy. While providing access to information, public records and official records, responsible officials shall afford full protection to the right to privacy of the individuals as follows:

(a) Each government office per Section 2 shall ensure that personal information in its custody or under its control is disclosed or released only if it is material or relevant to the subject matter of the request and its disclosure is permissible under this order, or existing law, rules or regulations;

The pertinent “existing law”, or at least one of them, in relation to personal information is Republic Act 10173, otherwise known as the Data Privacy Act of 2012. It essentially provides that, as a general rule, the personal information of individuals shall not be revealed and cannot be printed, recorded, used and disseminated by others. This is applicable both to private people and government officials except that, in case of the latter, information can be obtained relating to their positions and functions in the government.

If the disclosure of the personal information has been claimed by any citizen to be important to the country and therefore should be allowed disclosure, a government sub-agency, the National Privacy Commission (NPC), can determine whether the release of the information will be harmful to the public interest or national security. In short, the NPC can control what can and what cannot be revealed, and how small or expansive can be revealed. In effect, the Data Privacy Act limits freedom of thought and information. It also curtails a citizen’s freedom of speech and expression in matters of national concern involving government officials. 

And so, pursuant to the unnamed “existing law” ( which inevitably includes the Data Privacy Act of 2012) referred to by the EO, secrecy, not transparency is the governing and general rule when it comes to the private lives of government officials. And this “existing law” can always be used as a scapegoat for non-disclosure by executive officials. It can always say that their hands are tied by the “existing law.”

This is disconcerting for obvious reasons. Government people become corrupt because they put their private interest above the public welfare. While, ostensibly, they will show that their activities serve the people, they may, in fact, be serving their private bank accounts. Let us take for example a public official, X, tasked with handling the transportation mess. He or she orders the change of 15-year old buses contributing to air pollution. The bus companies obey, and order new buses from Y company, a private entity, upon subtle overtures of X because Y company is owned by X’s Family where Z, the brother of X, is X’s corporate-dummy.

Clearly, this scheme creates a serious conflict of interest - the conflict relating to X’s public life as a government official and X’s private life as a transportation mogul. The bus companies consummate their purchases of new buses from Y company hoping for future favorable concessions from X, consequently making Y Company very profitable and also X’s family correspondingly rich. This is corruption in its most scheming form. It is dishonesty.

In matters involving public accountability, the private lives of government officials are not separable from their official public duties. They can be inquired into because their very honesty is a principal consideration for tenure. Thus, our Supreme Court said as early as 1960:

The government cannot tolerate in its service a dishonest official, even if he performs his duties correctly and well, because by reason of his government position, he is given more and ample opportunity to commit acts of dishonesty against his fellow men, even against offices and entities of the government other than the office where he is employed; and by reason of his office, he enjoys and possesses a certain influence and power which renders the victims of his grave misconduct, oppression, and dishonesty less disposed and prepared to resist and to counteract his evil acts and actuations. The private life of an employee cannot be segregated from his public life. Dishonesty inevitably reflects on the fitness of the officer or employee to continue in office and the discipline and morale of the service. (Nera vs. Garcia G.R. No. L-13160 106 Phil 1031)

As a result, under the Data Privacy Act of 2012, the private life of a government official, even if it is important in determining his or her honesty and capability, cannot easily be processed, collected, stored, used or disseminated as a general rule. Worse, penal sanctions can even be imposed for any violation of such privacy. This is one “existing law” which President Duterte’s EO on freedom of information is subordinated to. Significantly, the EO not only refers to “existing law” but also to “rules or regulations” which are still to be researched by the Office of the Solicitor General (OSG) and the Department of Justice (DOJ). Textually, it is a “layered” EO potentially subjected to further limitations and contingencies by other (to be discovered) issuances.

For President Duterte’s EO to be effective, there is a need to amend, if not repeal, Republic Act 10173 otherwise known as the Data Privacy Act of 2012, in so far as government officials are concerned. This is the “existing law” that will effectively negate President Duterte’s move towards transparency. If the President’s policy and legal advisers will not see this, they will be doing the President a great disservice. 

I hate to think that this EO is only a window-dressing issued to satisfy the public’s desire for accessing information, but, in reality, a toothless “show-off” useless in effecting the citizen’s freedom of information.

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