Need to know vs Right to know

Yellow Pad
Mario M. Galang

Posted on March 31, 2014

THE FREEDOM of Information bill recently passed the Senate on Third Reading and moved on to the House of Representatives for concurrence. This early, I want to put the bill to a test, just to know in some detail what the advocates have been giving all-out support to.

I would like to use for this purpose an online piece written several months back by the eminent Constitutionalist Fr. Joaquin Bernas S. J. on precisely the same topic.

Fr. Bernas contends that the people’s right to be informed has been adequately served by laws and jurisprudence that we already have in place. So, he writes, the “question that should be asked is what the Freedom of Information bill hopes to add.” I take this as my focus question.

What we have, first and foremost, is a Constitutional item, in the Bill of Rights, that guarantees our right to information. It says:

“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.”

Fr. Bernas assures us that this item does not need an enabling law to get implemente -- it is self-executory. But rights are not absolute. What the item allows, in fact, is for Congress to set out the limitations with which to regulate access to information. This is issue No. 1: What are the exceptions to the right of the people to information?

Given these exceptions, who decides which information belongs to what exception? The question, says Fr. Bernas, “boils down to a determination of the scope of official regulatory discretion.” This is issue No. 2.

Issues 1 and 2 are sides of the same FOI coin; they are inseparable.

Issue No. 1 is well-covered by jurisprudence, says Fr. Bernas. He illustrates the point by enumerating some “recognized limitations on the right to information,” such as national security matters, trade secrets and banking transactions, criminal or classified law enforcement matters, and other confidential matters. On top of all these are the Ethical Standards Act (RA 6713) and its implementing rules and regulations (IRRs) setting out their own list of exceptions.

The current exceptions are enough to render the FOI bill, other things remaining equal, superfluous. In fact, its suggested exceptions match exactly, in terms of substance, those listed under the Ethical Standards Act and its IRRs. Some new items are indeed added, but I think they are not enough to warrant going through the tedious process of enacting a new law. Even if they are, merely amending the existing law may serve the purpose.

Other things, however, do not remain equal. We have issue No. 2 to consider.

Under what regime do the people exercise their right to information? What is their experience given current policy (laws, issuances and jurisprudence.) A good study on this topic would make for an interesting read, but I have yet to come across one. I will infer from what has been available.

I have in mind Memorandum Circular No. 78, as amended, issued in 1964. The MC sets out the rules, “in the interest of national security,” for classifying official information into four hierarchical categories (top secret, secret, confidential, restricted); designates the classifying officer; and restricts access to them to “properly cleared persons” on a need-to-know basis.

It defines “need to know” as “the principle whereby access to classified matter may only be given to those persons to whom it is necessary for the fulfillment of their duties.”

Classifying information per se is not wrong. What casts a cloud of doubt over the exercise is the wide scope of discretion given to officers in classifying matters, which may come handy in hiding any information from the public. When unauthorized disclosure of classified matters is penalized, but misclassification is not, the authorized officer unerringly gets the message: it is safer to conceal than to reveal.

In the face of a restive public, MC No. 78 came in handy for Ferdinand Marcos to invoke in September 1984, when he issued Letter of Instructions No. 1420, expressly prohibiting all government officials and officers from disclosing classified matters to the media and the general public, under pain of prosecution. It’s the same MC that Gloria Macapagal-Arroyo made reference to in issuing Executive Order 608 in 2007 to set up a national security clearance system for government personnel and further restrict access to official information.

MC No. 78 remains in force and never ceased giving mandate to the need-to-know regime, only quietly. The FOI bill seeks its repeal.

Under what regime does the FOI bill propose to implement the people’s right to information? It’s one that is built on an explicit legal presumption that is “in favor of access to information.” It says: “No request for information shall be denied unless it clearly falls under the exceptions provided under this Act. Accordingly, government agencies shall have the burden of proof of showing by clear and convincing evidence that the information requested is exempted from the disclosure by this Act.”

Meet the regime of “right to know.”

It does not merely add to what we already have. From the presumption of right to know flows the bill’s proposed operational provisions. The authority to know which of the exceptions apply is assigned to certain officers who are required to take the exceptions as “strictly construed,” thus narrowing the scope of discretion. Some exceptions carry expiry dates. The bill suggests the development by agencies of an FOI manual and proposes the setting up of access procedures. Remedies are provided in the event that requests for information are denied. Penalties are suggested for administrative and criminal offenses committed under the act.

Need to know. No! Right to know. Right!

Galang is a fellow of Action for Economic Reforms.