This file photo shows former Supreme Court Chief Justice and current Executive Secretary of President Ferdinandg Marcos Jr., Lucas Bersamin. INQUIRER PHOTO
Official goings on may become more blurry to the public eye after Malacañang added more exceptions to what could be accessed under former President Rodrigo Duterte’s executive order (EO) on freedom of information (FOI) based on a memorandum disclosed on Thursday.
The expanded list of information excluded from public disclosure is contained in Memorandum Circular (MC) No. 15 issued on March 17 by Executive Secretary Lucas Bersamin, with authority from Marcos, updating what was included in Duterte’s Executive Order (EO) No. 2.
Issued in July 2016, Duterte’s EO did not cover access to information from the legislature, judiciary, and even local governments, although it encouraged them to provide the same.
One of the exceptions to public access and disclosure are records of surveillance of terror suspects and the “communications” that had been intercepted and recorded, or wiretaps, by law enforcement agents or military personnel pursuant to the Anti-Terrorism Act of 2020.
Duterte’s EO No. 2 said this kind of information was “deemed confidential.”
He signed the antiterrorism law in July 2020 despite massive opposition due to fears that it would violate civil and political rights.
PACC records
Also no longer accessible to the public, including the media, are the records or information on any investigation by the Presidential Anti-Corruption Commission (PACC) “when such disclosure will deprive the respondent of the right to a fair and impartial investigation.”
The PACC, however, was abolished under Marcos’ EO No. 1. Its powers and functions were transferred to the Office of the Deputy Executive Secretary for Legal Affairs.
Included in the exceptions are state attorney-client privilege, and information and proceedings deemed confidential under rules and regulations issued by government agencies, or as decided by the courts.
READ: Duterte’s FOI order leads to ‘unintended consequences’
Cases of gender-based sexual harassment on streets and public spaces, including information on the victim and the accused who is a minor, and children in situations of armed conflict, are also excluded from public access or disclosure.
The new circular said the list of exceptions shall be “without prejudice to existing laws, jurisprudence, rules or regulations authorizing the disclosure of the excepted information upon satisfaction of certain conditions in certain cases, such as the concerned party or as may be ordered by the courts.”
“In evaluating requests for information, all heads of offices are enjoined to ensure the meaningful exercise of the public of their right to access to information on public concerns,” it said.
Duterte order
Under Duterte’s EO No. 2, the original exceptions included information covered by executive privilege; privileged information relating to national security, defense or international relations; information concerning law enforcement and protection of public and personal safety; and information deemed confidential for the protection of the privacy of persons and certain individuals such as minors, victims of crimes, or the accused.
Other exceptions are official information, documents or records that are confidential in nature.
These include those submitted or disclosed by some entities to government agencies, tribunals, boards, or officers, or to inquiries or investigation they had conducted.
“Prejudicial premature disclosure” of records of proceedings or information from proceedings which are treated as confidential or privileged, also are not permitted.
Matters considered confidential under banking and finance laws, and other exceptions to the right to information under the law, jurisprudence, rules and regulations were also exceptions under EO No. 2.
Unkept promise
No freedom of information bill was approved during the previous administration despite Duterte’s call on Congress to pass such a measure.
An FOI law was one of Duterte’s campaign promises that were not fulfilled.
Already nine months into his term, Marcos has not publicly called for an FOI law and it was not in the priority bills he submitted to Congress.
But when he ran for vice president in 2016, Marcos said he was in favor of such a law for transparency in government.
EO No. 2 laid down a policy of full public disclosure and transparency in public service to promote accountability, and set the guidelines for requesting and releasing information from offices under the executive branch.
eFOI portal
The executive order resulted in “unintended consequences” that have not always led to greater transparency.
Aside from many requests being denied or information being kept under wraps and taking longer to be released as it passed through the bureaucracy, in some cases, government agencies released information more readily before Duterte’s EO took effect.
Under EO No. 2, most government agencies were enrolled in the electronic Freedom of Information (eFOI) portal, except for the Office of the President (OP).
The eFOI is a website where the public can file requests for information from select government agencies.
FOI requests for the OP must be filed at the Malacañang Records Office.
Requests
In October last year, the Inquirer requested information on the costs of all of the President’s trips since June 30, 2022, including a complete list of people in his delegation per trip.
In an email in November 2022, Malacañang Records Office said it was denying the Inquirer’s request “on the ground that the documents/lists requested are not among the records in the possession or custody of the Office of the President (OP).”
“Moreover the requested information involves the preparation of lists, which is not covered by the right to information,” it added.
Malacañang has said that the President’s official trips abroad have yielded P3.48 trillion in investments pledges but it has yet to release the expenses incurred by the government for his foreign visits.
During the Duterte administration, the Inquirer was able to obtain information on the cost of the president’s foreign trips through an FOI request to the Malacañang Records Office.
Seeking SALN
In October 2016, Duterte created an inter-agency committee to review the exceptions under EO No. 2. New exceptions were listed in November that year and updated in September 2021.
The statement of assets, liabilities and net worth (SALN) is often a measure of transparency, but in September 2021, the Office of the Ombudsman rejected an FOI request for Duterte’s SALN by several lawyers.
READ: Ombudsman denies request of lawyers to get copy of Duterte’s SALN
In a Facebook post on September 6, 2021, lawyers Dino de Leon, Josef Garcia and Teddy Rigoroso—who filed their request on behalf of detained opposition former Senator Leila de Lima— said the Ombudsman rejected their request based on an earlier circular banning the release of SALNs without the subject’s authorization.
The circular was issued by Martires to stop what he called the “weaponization” of these documents against public officials.
READ: Ombudsman rejects De Lima bid to make Duterte SALN public
Duterte’s last publicly available SALN was released in 2017 when he declared a net worth of P28.5 million as of December that year.
—WITH A REPORT FROM INQUIRER RESEARCH
Sources: Inquirer Archives, Official Gazette of the Philippines