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No real need for FOI Law

The proposed Freedom of Information Act being deliberated upon by the Congress is unnecessary and, ironically, limits freedom of information.  Why?  Section 7, Article IV of the 1987 Constitution says it all –

 “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.”

 The foregoing provision is self-executing, meaning, there is no need for a law for the provision to operate.  So far, the jurisprudence on this constitutional right says just that (Legaspi v. Civil Service Commission [1987] and Guingona, Jr. v. Comelec [2010]).  In fact, government agencies may be compelled by court order to release public documents involving matters of public interest.  The phrase “subject to such limitations as may be provided by law” does not mean that prior legislation is required for the enjoyment of the right.  It simply means that if the Congress finds it necessary to impose certain limitations to the enjoyment of the right, then the Congress must enact the necessary law.  Therefore, with or without such law, the right under Section 7 is immediately enforceable.

So far, the constitutional right appears plenary enough, save for current restrictions imposed by the laws on national security and personal privacy.  It is fine as it is.

Proponents of the Freedom of Information Act may not know it but they are actually encouraging the Congress to enact a law to limit the enjoyment of the constitutional right under Section 7.  By demanding such legislation, they are urging the Congress to limit the enjoyment by the people of this important constitutional right. 

 For instance, enacting this law will only give the government an opportunity to add to the list of information and documentation which the public may be denied access to.  The law may even require compliance with a complicated administrative procedure before a document may be obtained from a government office.  It may even go to the extent of requiring the payment of excessive fees for such information and documentation.  All that should not happen. 

Some supporters of the bill are apparently unaware of the consequences of such a law if it gets enacted.  We certainly cannot blame them because the title of the act is very attractive.  After all, it’s a motherhood statement—who does not want freedom of information?

That is precisely the problem.  Because the Freedom of Information Act sounds nice, it attracts a big following.  That is where the danger lies.  Not all government-imposed restrictions assume the stereotype form of “do not do this” and “this is prohibited,” etc.  More often than not, they assume very attractive, but misleading titles.

In 2010, President Benigno Aquino III issued Executive Order No. 1 creating the so-called Philippine Truth Commission.  The name of the agency actually sounded good.  Who does not want truth in government?  It turned out, however, that its creation was attended with legal infirmities.  In the end, the Supreme Court declared Executive Order No. 1 unconstitutional (Biraogo v. Philippine Truth Commission).

 Take the defunct Right to Reply bill once upon a time deliberated in the Congress.  Under this bill, everybody who may be affected by news coverage done by the media will have a right to reply.  It sounded nice because it seemed to level the playing field in the relation between newsmakers and the news media.  Proponents of the bill seemed unaware that in 1974, the United States Supreme Court declared the right to reply law unconstitutional (Miami Herald v. Tornillo).  The Court pointed out that to require a newspaper to publish a reply is to tell the newspaper what to put in its pages.

 Decades ago, the US Federal Communications Commission (FCC) came out with the so-called Fairness Doctrine, a broadcast version of right to reply regulations.  While the word fairness as used in the rule sounded nice, and was meant to encourage the wider dissemination of political commentaries and coverage, the opposite was realized.  Stations which refused to afford publicity to political figures they disapproved of, chose to avoid broadcasting political commentaries and coverage completely altogether.  That way, they were not covered by the fairness rule.  In the end, the lofty objectives of the rule were not realized.  The FCC ended up repealing the Fairness Doctrine. 

Champions of free speech in the United States lauded the demise of the Fairness Doctrine.  Attempts on the part of the US Congress to convert this FCC rule to a federal law met tough opposition.  Then US President Ronald Reagan also threatened to veto any such law.  So far, the defunct Fairness Doctrine remains dead. 

Before we cheer the anticipated passage of the Freedom of Information Act, let us take time to study its consequences.  If this law is actually enacted and it ended up limiting fundamental freedoms, then its imposition on the people will be an embarrassing case of self-inflicted injury.

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