Justice is an impossible dream and an illusion in a regime of secrecy and exclusion and in a culture of hidden agendas and non-disclosure.
I understand that for some years now concerned non-governmental organizations have been heroically but silently pushing for the passage by Congress of a Freedom of Information Act of the Philippines, but their efforts seemed to have been drowned in the deep sea of selfish noise created by the Cha-Cha (charter change) moves of obedient congressmen under the flock of their shepherd Pres. Gloria Arroyo and by the tensions, jealousies, in-fighting, and positioning among our mercenary-type politicians created by the coming 2010 general elections.
All the loud and bombastic speeches and press releases of our corrupt and inutile politicians, legislators and bureaucrats about the fantasies of democracy, freedom, justice and development are useless, empty, hypocritical and delusional, because our Government refuses or neglects to adopt a Freedom of Information Act that will truly give flesh to the purifying principles of transparency, good governance and accountability.
I regret to say this, but, in general, Filipinos do not seem to appreciate the long-term value, significance, relevance and wisdom of a Freedom of Information Act, a sad fact that explains why they have failed to exert enough pressure on their parasitic and lazy legislators and political leaders to push for the passage of such a monumental Act.
Let me digest the salient parts of the Freedom of Information Act of the United States (5 U.S.C. 552).
The spirit of the law is full disclosure and transparency with respect to public information, agency rules, opinions, orders, records, and proceedings. Genuine democracy is founded on the honest concepts of openness, not secrecy, and inclusion, not exclusion.
Under the said law, each agency shall separately state and currently publish in the US Federal Register for the guidance of the public:
1. Descriptions of its central and field organization and the established places at which, the employees from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;
2. Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
3. Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
4. Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and
5. Each amendment, revision, or repeal of the foregoing.
Lack of publication gives immunity to citizens. The law provides that except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.
The law further provides that each agency, in accordance with published rules, shall make available for public inspection and copying:
1. Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
2. Those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and
3. Administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale.
To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing.
Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication.
A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if it has been indexed and either made available or published; or the party has actual and timely notice of the terms thereof.
Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests and establishing procedures and guidelines for determining when such fees should be waived or reduced in connection with document search, duplication, and review, when records are requested for commercial use. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies.
It must be stressed that documents shall be furnished without any charge or at a charge reduced below the fees established under clause if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section.
Judicial relief may be had to assert ones right sunder the said law.
On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in the law.
The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.
In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.
Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding.
Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall determine within ten days after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and make a determination with respect to any appeal within twenty days after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination.
The agency may seek a judicial extension of the period within which is shall disclose the documents requested under "unusual circumstances" such as the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein.
If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records.
Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request.
The provisions of the law do not apply to matters that are:
1. Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order;
2. Related solely to the internal personnel rules and practices of an agency;
3. Specifically exempted from disclosure by statute, provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matter to be withheld;
4. Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
5. Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
6. Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
7. Records or information compiled for law enforcement purposes, but to the extent that the production of such law enforcement records or information could reasonably be expected to interfere with enforcement proceedings, would deprive a person of a right to a fair trial or an impartial adjudication, could reasonably be expected to constitute an unwarranted invasion of personal privacy, could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or could reasonably be expected to endanger the life or physical safety of any individual;
8. Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
9. Geological and geophysical information and data, including maps, concerning wells.
Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.
Whenever a request is made which involves access to records and the investigation or proceeding involves a possible violation of criminal law; and there is reason to believe that the subject of the investigation or proceeding is not aware of its pendency, and disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to disclosure.
Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to disclosure unless the informant's status as an informant has been officially confirmed.
Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation (FBI) pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information, the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.
The exclusionary rule is not authority to withhold information from Congress.
What is noteworthy about the law is how consciously it affirms and preserves the oversight powers of the US Congress over the status of compliance by government agencies with the provisions of the law. It provides that on or before March 1 of each calendar year, each agency shall submit a report covering the preceding calendar year to the Speaker of the House of Representatives and President of the Senate for referral to the appropriate committees of the Congress. The report shall include:
1. The number of determinations made by such agency not to comply with requests for records made to such agency and the reasons for each such determination;
2. The number of appeals made by persons, the result of such appeals, and the reason for the action upon each appeal that results in a denial of information;
3. The names and titles or positions of each person responsible for the denial of records requested under this section, and the number of instances of participation for each;
4. The results of each proceeding conducted in connection with the disciplinary action taken against the officer or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;
5. A copy of every rule made by such agency regarding this section;
6. A copy of the fee schedule and the total amount of fees collected by the agency for making records available under this section; and
7. Such other information as indicates efforts to administer fully this section.
Compliance with the law is administratively monitored and enforced by the US Department of Justice. The Attorney General shall submit an annual report on or before March 1 of each calendar year which shall include for the prior calendar year a listing of the number of cases arising under the law, the exemption involved in each case, the disposition of such case, and the cost, fees, and penalties assessed. Such report shall also include a description of the efforts undertaken by the Department of Justice to encourage agency compliance with this section.
For purposes of the law, the term "agency" includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.
Atty. Manuel J. Laserna Jr.
lcnmlaw@gmail.com
