Saturday, October 15, 2011


Joaquin G. Bernas, S.J.
With the debate going on now on the urgency or non-urgency of the Freedom of Information Bill one might get the impression that the Bill is about a novel right. As a matter of fact, however, there already is a constitutional provision on the subject. The debate is more about the clarification of the right and about the advantages and disadvantages, or even of the danger, of providing for a statutory version.
The constitutional guarantee now reads: “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.”
As can be seen, the provision is both a grant of the right and a clarification that the right may be subjected to statutory limitations. The right was first introduced in the 1973 Constitution. It is an improvement on what was originally proposed to the 1971 Constitutional Convention. The orgitnal proposal simply said that access to official records and the right to information "shall be afforded the citizens as may be provided by law." It therefor was not a self-executory provision. It needed statutory implementaion. The draft was later reworded to make the Constitution itself give the right, but subject to statutory limitations.
The significance of this change may be seen when viewed in the light of the pre-1973 case of Subido v. Ozaeta. The question presented before the Court was whether the press, and, for that matter, the public, had a constitutional right to demand the examination of public land records. The Court answered: “We do not believe that this constitutional right [freedom of the press] is in any way involved. The refusal by the respondent does not constitute a restriction upon or censorship of publication. It only affects facilities of publication, and the respondents are correct in saying that freedom of information or freedom to obtain information for publication is not guaranteed by the constitution.” Fortunately, however, the Court finally ruled that the press had a statutory right to examine the records of the Register of Deeds because the interest of the press was real and adequate.
The 1973 Constitution went beyond the Subido case and recognized the right of access to public documents and records as a self-executory constitutional right. The role given to the National Assembly was not to give the right but simply to set limits on the right granted by the Constitution. The right is now recognized as a public right where the real parties in interest are the people. Hence, every citizen has “standing” to challenge any violation of the right and may seek its enforcement by mandamus.
The 1987 Constitution has preserved the 1973 text but with the addition of the phrase "as well as to government research data used as basis for policy development." The amendment came as a reaction to the government practice during the martial law regime of withholding social research data from the knowledge of the public whenever such data contradicted policies which the government wanted to espouse. The reference, however, is to "government research data," that is, to the findings of government funded research and not to the findings of privately funded research over which private proprietary rights might exist.
The constitutional right, however, does not mean that every day is an open house in public offices. The right given by the Constitution is "subject to such limitations as may be provided by law." Thus, while access to official records may not be prohibited, it certainly may be regulated. The regulation can come either from statutory law or from what the Supreme Court has called the "inherent power [of an officer] to control his office and the records under his custody and . . . to exercise [some discretion] as to the manner in which persons desiring to inspect, examine, or copy the record may exercise their rights."
The question then boils down now to determining the scope of official regulatory discretion. This is what the Freedom of Information Bill tries to do. While the Constitution says that the right may be limited by law, the Bill in effect seeks to limit the scope of official regulatory discretion.
The problem, however, lies in determining what matters are of public concern and what are not. For, certainly, every act of a public officer in the conduct of the governmental process is a matter of public concern. Jurisprudence in fact has said that “public concern,” like “public interest,” eludes exact definition and embraces a broad spectrum of subjects which the public may want to know, either because these directly affect their lives or simply because such matters arouse the interest of an ordinary citizen.
It is true that the right, as held by the Court, may be asserted by any citizen. But in the face of the unclarity of the meaning of matters of public concern, every time the right to freedom of information is asserted now, judicial intervention can become necessary. Clearly what is needed is balance. The challenge is how to achieve this balance especially in the face of the recognized right of “executive privilege” which has also been the subject of much dispute in recent months.
17 October 2011

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