H. Right to Information (See also EO 2, s. 2016; RA 6713, Sec. 5(e))

I. Right to Information

• Executive Order No. 2, s. 2016 or Freedom of Information
• R.A. No. 11032 or the Ease of Doing Business Act

1987 CONST., art. II, sec. 28; art. III, sec. 7; art. XVI, sec. 10

> art. II, sec. 28 SECTION 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

> art. III, sec. 7 SECTION 7. 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.

> art. XVI, sec. 10 SECTION 10. The State shall provide the policy environment for the full development of Filipino capability and the emergence of communication structures suitable to the needs and aspirations of the nation and the balanced flow of information into, out of, and across the country, in accordance with a policy that respects the freedom of speech and of the press.

RIGHT TO INFORMATION

The right of the people to information on matters of public concern shall be recognized. (PHIL. CONST., art. III, § 7)

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (PHIL. CONST., art. II, § 28)

Rights Guaranteed

• Right to information on matters of public concern
• Right of access to official records and documents

These are political rights available to citizens only. They are "subject to such limitations as may be provided by law." (Bernas, The 1987 Philippine Constitution: A Comprehensive Reviewer)

Not absolute

The constitutional guarantee to information does not open every door to any and all information. It is limited to matters of public concern, and is subject to such limitations as may be provided by law. Likewise, the State’s policy of full public disclosure is restricted to transactions involving public interest, and is further subject to reasonable conditions prescribed by law. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, Nov. 21, 2016)

Matters of Public Concern

The people have the right to information on matters of public concern, and access to official records shall be allowed to citizens as may be provided by law. It is a self-executing provision.

The threshold question is, therefore, whether or not the information sought is of public interest or public concern. "Public concern" like "public interest" is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public. (Legaspi v. CSC, G.R. No. L-72119, May 29, 1987)

In case of conflict, there is a need to strike a balance between the right of the people and the interest of the Government to be protected. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210, Nov. 21, 2016)

Examples of Matters of Public Concern according to jurisprudence:

• Loanable funds of GSIS
• Civil service eligibility of sanitarian employees
• Appointments made to public offices and the utilization of public property
• National board examinations such as the CPA Board Exams
• Names of nominees of partylists
• Negotiations leading to the consummation of the transaction (Valmonte v. Belmonte, G.R. No. 74930; Legaspi v. CSC, G.R. No. L-72119; Gonzales v. Narvasa, G.R. No. 140835; Antolin v. Domondon, G.R. No.165036; Bantay Republic v. COMELEC, G.R. No. 177271; Chavez v. PEA and Amari, G.R. No. 133250)

Examples of Matters of Public Information according to Jurisprudence:

• Decision and voting slips of the MTRCB board for the classification of movies
• Civil Service eligibility of sanitarians
• Party-list nominees through medium other than the “Certified List”
• GSIS loans granted to former Batasang Pambansa members
• Examination papers and answer keys in the CPA Board Exam
• Definite propositions and “official recommendations” of agencies preceding and even before the consummation of the contract (Aquino-Sarmiento v. Morato, G.R. No. 92541; Legaspi v. CSC, G.R. No. L-72119; Bantay Republic Act or BA-RA 7941 v. COMELEC, G.R. No. 177271,; Valmonte v. Belmonte Jr., G.R. No. 74930,; Antolin v. Domondon, G.R. No.165036; Chavez v. Public Estates Authority, G.R. No. 133250)

The threatened restraint on airing the “Hello Garci” recordings implicated freedom of speech and of the press and the prohibition on prior restraint; the ruling did not hold that the right to information overrides wiretapping concerns. (Chavez v. Gonzales, G.R. No. 168338)

Limitations

Restrictions to the right to information may be:

• Based on kinds of information
• Based on access
• Based on reasonable regulation for the convenience of and for order in the office that has custody of the documents (Baldoza v. Dimaano, A.M. No. 1120-MJ, 1976)
• Based on availability

Based on Kinds of Information

Right to information. The constitutional right to information is subject to recognized exceptions and privileges. Information that may be withheld includes:

• Banking transactions;
• Information from executive sessions;
• National security matters;
• Trade secrets;
• Confidential diplomatic correspondence;
• Intelligence information;
• Supreme Court deliberations; and
• Information from closed-door Cabinet meetings.

Information that may be withheld from the public, and even from Congress, also includes the identities of informants in criminal investigations and confidential or classified matters learned by public officials because of their office. (Chavez v. PCGG, G.R. No. 130716)

The right to information may cover official information concerning ongoing negotiations before a final contract when the information constitutes a definite proposition, such as an official recommendation. It remains subject to applicable privileges and exceptions. Preliminary recommendations, drafts, and advisory opinions may be protected by the qualified deliberative process privilege; whether that privilege yields to a request for disclosure depends on the circumstances. (DFA v. BCA International, G.R. No. 210858)

Protecting a frank exchange of ideas among officials preparing tariff recommendations for the President may justify nondisclosure. The privilege depends on the nature of the information, not on whether every committee member belongs to the Cabinet. The right to information and the government’s interest in candid deliberation must be balanced. (Sereno v. Committee on Trade and Related Matters of NEDA, G.R. No. 175210)

The chemical composition of special lubricants is a trade secret: its ingredients are central to the company’s business. Compelling their disclosure would put the company at an undue disadvantage. Trade secrets warrant protection from discovery because their economic value rests on their not being generally known or readily ascertainable by the public. (Air Philippines v. Pennswell, Inc., G.R. No. 172835)

Access to records.

• A person may inspect and copy accessible records at that person’s expense. (Chavez v. PEA and Amari, supra)
• The right does not require custodians to prepare lists, abstracts, summaries, or similar materials. (Valmonte v. Belmonte, supra)

Refusing access to information outright differs from regulating how access is provided. Only the Legislature may impose the former limitation; the agency holding the records may regulate the latter. (Legaspi v. CSC, G.R. No. 72119, May 29, 1987)

Regulations governing examination of land registration records may prescribe its manner and hours to prevent damage or loss, avoid undue interference with custodians and other employees, and protect other persons’ opportunity to inspect. (Subido v. Ozaeta, G.R. No. L-1631, May 29, 1987)

Although citizens may access official records on matters of public concern, they cannot compel their custodians to create lists, abstracts, summaries, or similar materials for them. (Valmonte v. Belmonte Jr., G.R. No. 74930, Feb. 13, 1989)

See also EO No. 2, s. 2016, and RA 6713, Sec. 5(e).

Access to Court Records

The right of the public to be informed of the proceedings in court is not founded in the desire or necessity of people to know about the doing of others, but in the necessity of knowing whether its servant, the judge, is properly performing his duty.

Unlike court orders and decisions, however, pleadings and other documents filed by parties to a case need not be matters of public concern or interest. For they are filed for the purpose of establishing the basis upon which the court may issue an order or a judgment affecting their rights and interests.

In fine, access to court records may be permitted at the discretion and subject to the supervisory and protective powers of the court, after considering the actual use or purpose for which the request for access is based and the obvious prejudice to any of the parties. (Hilado v. Judge Reyes, G.R. No. 163155)

Court deliberations are traditionally recognized as privileged communications (deliberative process privilege). This privilege may be invoked by judges and also by court officials and employees who are privy to these deliberations. It is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process. However, to invoke the privilege, there must be a showing that the document is both predecisional and deliberative. Court records which can be shown to possess both these qualities cannot be the subject of subpoena. (In Re: Production of Court Records and Documents and the Attendance of Court officials and employees as witnesses under the subpoenas of Feb 10, 2012 and the various letters for the Impeachment Prosecution Panel dated Jan 19 and 25, 2012, Feb. 14, 2012)

Deliberative Process Privilege

U.S. courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked:

• Predecisional – The communication must be predecisional, i.e., antecedent to the adoption of an agency policy; and
• Deliberative – The communication must be deliberative, i.e., a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters.

The deliberative process privilege exempts materials that are 'predecisional' and 'deliberative,' but requires disclosure of policy statements and final opinions 'that have the force of law or explain actions that an agency has already taken.

As a qualified privilege, the burden falls upon the government agency asserting the deliberative process privilege to prove that the information in question satisfies both requirements - predecisional and deliberative. The agency bears the burden of establishing the character of the decision, the deliberative process involved, and the role played by the documents in the course of that process. It may be overcome upon a showing that the discoverant's interests in disclosure of the materials outweigh the government's interests in their confidentiality. The determination of need must be made flexibly on a case-by-case, ad hoc basis, and the factors relevant to this balancing include: the relevance of the evidence, whether there is reason to believe the documents may shed light on government misconduct, whether the information sought is available from other sources and can be obtained without compromising the government's deliberative processes, and the importance of the material to the discoverant's case. (DFA v. BCA International, G.R. No. 210858, June 29, 2016)

Publication of Laws and Regulations

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official Gazette..." The word "shall" used therein imposes upon respondent officials an imperative duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of public concern is to be given substance and reality. The law itself makes a list of what should be published in the Official Gazette. It is needless to add that the publication of presidential issuances "of a public nature" or "of general applicability" is a requirement of due process. It is a rule of law that before a person may be bound by law, he must first be officially and specifically informed of its contents. Publication is necessary to apprise the public of the contents of [penal] regulations and make the said penalties binding on the persons affected thereby. (Tanada v. Tuvera, G.R. No. L-63915, April 24, 1985).

Other Constitutional Provisions Related to the Right to Information

Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest. (PHIL. CONST., art. II, § 28)