FOI anyone?

After listening to a discussion on FOI on tv, I’m convinced that we don’t need an FOI law, but perhaps not for the reasons advanced by officials of the Executive, such as that the right would be “abused.” Manolo Quezon’s heart bleeds for “innocents” whose secrets might come out. This is a lame excuse.

What is more important is the question of whether we even need an FOI act at all to enforce the public’s right to information.

The right to information is in the Bill of Rights, and such rights are typically self-executing. In Legaspi vs. Civil Service Commission, the SC held that mandamus is sufficient to enforce the right.  In other words, the right to information does NOT require an implementing law.

Art. III, Sec. 7 states: “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.”

What the Constitution seems to say is that if the state wishes to keep something secret, there should be a law or laws providing for such secrecy. And there already are. The penumbral constitutional right of privacy is one. Another is the jurisprudence on the secrecy of matters of law enforcement and national security. There are also civil code rules on secrets, including trade secrets, that have been shared with public agencies.

Absent such secrecy-protection devices, the public has already a “recognized right” to certain information, and, as held by the SC, the Constitution does not require the existence of an implementing FOI law to enforce that right.

The question then arises: Is the remedy of mandamus insufficient, as a practical means, to enforce the right? Here views likely differ.  Proponents of an FOI law believe that the remedy is insufficient.  Accepting, for the sake of argument, that mandamus can be insufficient, I believe the issue then boils down to details.  If the FOI law criminalizes the withholding of information, this may simply add to the laws that are difficult to enforce.  This is, of course, because criminal conviction requires proof beyond reasonable doubt.  What is perhaps sensible or needed is not just any FOI law, but one that is easy to enforce and not likely to backfire.  That is a fair challenge to those who have been agitating for an FOI law.

We already have laws and rules that are either bent or disobeyed. There is also the danger that an FOI law, when pushed by media, can be an aid to pushing the envelope of journalism. In short, adding to prostitutable laws can even do harm.

So why bother?


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