H. Right to information

Atty. Jericho Del Puerto

Atty. Jericho Del Puerto

Lawyer, Author, Mentor

Frequency: ★★☆☆☆

1. Scope and limitations

a. Scope

Concept: Right to information. 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. (Section 7, Article III, 1987 Constitution)

Legaspi v. CSC, En Banc, (May 1987)
These constitutional provisions are self-executing. They supply the rules by means of which the right to information may be enjoyed (Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the duty to afford access to sources of information. Hence, the fundamental right therein recognized may be asserted by the people upon the ratification of the constitution without need for any ancillary act of the Legislature. (Id. at, p. 165) What may be provided for by the Legislature are reasonable conditions and limitations upon the access to be afforded which must, of necessity, be consistent with the declared State policy of full public disclosure of all transactions involving public interest (Constitution, Art. 11, Sec. 28). However, it cannot be overemphasized that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter. Therefore, the right may be properly invoked in a mandamus proceeding such as this one.
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the authority to regulate the manner of examining public records does not carry with it the power to prohibit. A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the custody of public records. Its authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional right by other persons shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case.
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The information sought by the petitioner in this case is the truth of the claim of certain government employees that they are civil service eligibles for the positions to which they were appointed.
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles. Public officers are at all times accountable to the people even as to their eligibilities for their respective positions.

Same: Constitutional policy – full public disclosure in all transactions involving public interest. The constitutional guarantee of the right to information on matters of public concern enunciated in Section 7 of Article III of the 1987 Constitution complements the State’s policy of full public disclosure in all transactions involving public interest expressed in Section 28 of Article II of the 1987 Constitution. (Ibid.)

 
That the subject of the information sought in the present cases is a matter of public concern faces no serious challenge. In fact, respondents admit that the MOA-AD is indeed of public concern. In previous cases, the Court found that the regularity of real estate transactions entered in the Register of Deeds,116 the need for adequate notice to the public of the various laws, the civil service eligibility of a public employee, the proper management of GSIS funds allegedly used to grant loans to public officials, the recovery of the Marcoses’ alleged ill-gotten wealth, and the identity of party-list nominees, among others, are matters of public concern. Undoubtedly, the MOA-AD subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects the lives of the public at large.
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Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is merely directed to provide for “reasonable safeguards.” The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say that the broader right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an implementing legislation as an excuse in not effecting such policy.
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The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents’ action in providing the Court and the petitioners with the official copy of the final draft of the MOA-AD and its annexes.
The people’s right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetry with the state policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the executory nature or commercial character of the agreement.

Same; Same; Transparency. These provisions are aimed at ensuring transparency in policy-making as well as in the operations of the Government, and at safeguarding the exercise by the people of the freedom of expression. In a democratic society like ours, the free exchange of information is necessary, and can be possible only if the people are provided the proper information on matters that affect them. (Sereno v. Committee on Trade and Related Matters, G.R. No. 175210, 01 February 2016)

Valmonte v. Belmonte, Jr., En Banc, (February 1989)
Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to check the accuracy of information the disseminate. For them, the freedom of the press and of speech is not only critical, but vital to the exercise of their professions. The right of access to information ensures that these freedoms are not rendered nugatory by the government’s monopolizing pertinent information. For an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people’s will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to speech and expression. But this is not to say that the right to information is merely an adjunct of and therefore restricted in application by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes hand-in-hand with the constitutional policies of full public disclosure  “and honesty in the public service.” It is meant to enhance the widening role of the citizenry in governmental decision-making as well as in checking abuse in government.
Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi, the people’s right to information is limited to “matters of public concern,” and is further “subject to such limitations as may be provided by law.” Similarly, the State’s policy of full disclosure is limited to “transactions involving public interest,” and is “subject to reasonable conditions prescribed by law.”
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The information sought by petitioners in this case is the truth of reports that certain Members of the Batasang Pambansa belonging to the opposition were able to secure “clean” loans from the GSIS immediately before the February 7, 1986 election through the intercession of the former First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its employees and the administrator of various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest and other amounts payable to GSIS by the government, as employer, as well as the obligations which the Republic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is expected to manage its resources with utmost prudence and in strict compliance with the pertinent laws or rules and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A. No. 186, as amended) was the necessity “to preserve at all times the actuarial solvency of the funds administered by the System” [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent himself admits, the GSIS “is not supposed to grant ‘clean loans.'” [Comment, p. 8.] It is therefore the legitimate concern of the public to ensure that these funds are managed properly with the end in view of maximizing the benefits that accrue to the insured government employees. Moreover, the supposed borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with the greatest degree of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged borrowers make the information sought clearly a matter of public interest and concern.

b. Limitations

Same; Not to all information. The constitutional guarantee to information does not open every door to any and all information, but is rather confined to matters of public concern. It is subject to such limitations as may be provided by law. The State’s policy of full public disclosure is restricted to transactions involving public interest, and is tempered by reasonable conditions prescribed by law. (Sereno v. Committee on Trade and Related Matters, supra.)

2 requisites must concur before the right to information may be compelled by writ of mandamus:
1) The information sought must be in relation to matters of public concern or public interest.
2) It must not be exempt by law from the operation of the constitutional guarantee.

First requisite. As to the first requisite, there is no rigid test in determining whether or not a particular information is of public concern or public interest. Both terms cover a wide-range of issues that the public may want to be familiar with either because the issues have a direct effect on them or because the issues “naturally arouse the interest of an ordinary citizen.” As such, whether or not the information sought is of public interest or public concern is left to the proper determination of the courts on a case to case basis. (Ibid.)

Sereno v. Committee on Trade and Related Matters (February 2016)
In his capacity as a citizen and as the Executive Director of the APMP, the petitioner has sought to obtain official information dealing with the policy recommendation of the CTRM with respect to the reduction of tariffs on petrochemical resins and plastic products. He has asserted that the recommendation, which would be effected through E.O. No. 486, not only brought significant losses to the petrochemical industry that undermined the industry’s long-term viability and survival, but also conflicted with official government pronouncements, policy directives, and enactments designed to support and develop an integrated petrochemical industry. He has claimed that the implementation of E.O. No. 486 effectively deprived the industry of tariff support and market share, thereby jeopardizing large investments without due process of law.
The Philippine petrochemical industry centers on the manufacture of plastic and other related materials, and provides essential input requirements for the agricultural and industrial sectors of the country. Thus, the position of the petrochemical industry as an essential contributor to the overall growth of our country’s economy easily makes the information sought a matter of public concern or interest.

Second requisite; Exclusions. The second requisite is that the information requested must not be excluded by law from the constitutional guarantee. In that regard, the Court has already declared that the constitutional guarantee of the people’s right to information does not cover national security matters and intelligence information, trade secrets and banking transactions and criminal matters. Equally excluded from coverage of the constitutional guarantee are diplomatic correspondence, closed-door Cabinet meeting and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.

Same; Same. the right to information does not extend to matters acknowledged as “privileged information under the separation of powers,” which include “Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings.” Likewise exempted from the right to information are “information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused.”

Sereno v. Committee on Trade and Related Matters (February 2016)
In Chavez v. Public Estates Authority, the Court has ruled that
The respondents claim exemption on the ground that the May 23, 2005 meeting was classified as a closed-door Cabinet meeting by virtue of the committee’s composition and the nature of its mandate dealing with matters of foreign affairs, trade and policy-making. They assert that the information withheld was within the scope of the exemption from disclosure because the CTRM meetings were directly related to the exercise of the sovereign prerogative of the President as the Head of State in the conduct of foreign affairs and the regulation of trade, as provided in Section 3 (a) of Rule IV of the Rules Implementing R.A. No. 6713.
The respondents are correct. It is always necessary, given the highly important and complex powers to fix tariff rates vested in the President, that the recommendations submitted for the President’s consideration be well-thought out and well-deliberated. The Court has expressly recognized in Chavez v. Public Estates Authority that “a frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power.” In Almonte v. Vasquez, the Court has stressed the need for confidentiality and privacy, stating thusly: “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.” Without doubt, therefore, ensuring and promoting the free exchange of ideas among the members of the committee tasked to give tariff recommendations to the President were truly imperative.
Every claim of exemption, being a limitation on a right constitutionally granted to the people, is liberally construed in favor of disclosure and strictly against the claim of confidentiality. However, the claim of privilege as a cause for exemption from the obligation to disclose information must be clearly asserted by specifying the grounds for the exemption. In case of denial of access to the information, it is the government agency concerned that has the burden of showing that the information sought to be obtained is not a matter of public concern, or that the same is exempted from the coverage of the constitutional guarantee.36 We reiterate, therefore, that the burden has been well discharged herein.

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