Investigating ODA: Gov’t curbs access to information amid Senate scrutiny of projects

By KAROL ANNE M. ILAGAN
Philippine Center for Investigative Journalism

THE public’s right to information is expressly guaranteed by the 1987 Constitution and affirmed by the judiciary. Yet access to data held by state agencies not only remains limited, it has become nil in some cases, apparently because of the current Senate scrutiny of particular government projects.

In fact, based on the recent experience of the PCIJ, agencies that had previously been accommodating of requests for information have suddenly shut their doors on such.

One stark example is the National Economic and Development Authority (NEDA), which last year initially granted PCIJ’s various requests for data regarding projects using official development assistance (ODA). But after Executive Secretary Eduardo Ermita issued a memorandum order last September 28 restricting the release of specific national broadband network (NBN) documents to the Senate Blue Ribbon Committee, as well as to media agencies, NEDA stopped processing requests for information connected to the project.

As of this writing, NEDA even plans to draft new guidelines for the release of project documents, a move that could further curb information access.

Sliding back?

Which is sad, says veteran journalist and occasional PCIJ fellow Roel R. Landingin. Before scandals involving state projects began erupting late last year, he says, the government seemed headed toward transparency. At the very least, advances in technology had been enabling agencies to increase transparency in their dealings and make more data available online.

“One hundred percent access, NEDA used to be like that,” Landingin says. “Perhaps, because of the intensity of attacks (on the President), access to information has been restricted.”

Nepomuceno Malaluan, lawyer and Access to Information Network (ATIN) co-convenor, says that when an agency withholds the information, it is probably to protect certain public officers from embarrassment, or from criminal or administrative liability. Landingin, the Manila senior correspondent of The Financial Times of London, adds that “some agencies are covering their backs.”

Landingin wrote the latest PCIJ series on ODA projects. Apart from interviews, his report was based largely on a six-month review of official documents that covered 71 of these projects. This meant gathering various ODA project documents such as copies of contracts, memoranda of agreement, feasibility studies, cost-benefit studies, presentation materials, status reports, and other related materials. This also meant submitting official requests for data and documents from various government agencies.

The PCIJ research team kept a log of request approvals and denials from July to December 2007, during the data-gathering work for the story. The PCIJ also recorded the number of phone calls made, letters sent by fax and e-mail, and the number of employees the researchers had spoken with or and were referred to. (see table)

Law affirms access

Republic Act 6713 or the Code of Conduct and Ethical Standards for Government Officials and Employees, provides a general rule on access to information. Implemented on March 25, 1989, Section 5 of the Code states: “All public documents must be made accessible to, and readily made for inspection by, the public within reasonable working hours.”

Malaluan explains: “When you go there (a government office) and make a request — based on that single rule — they (government officials) should make it available as long as it is of public concern.”

The PCIJ made 23 official requests but only 15 were addressed and eventually granted. This makes for a 65 percent rate of approval of requests for information. Still, most of the agencies that approved the requests also did not provide all the information that PCIJ had asked for.

For sure, some turned out to have incomplete data and had to refer PCIJ to other offices for the missing materials. Others, however, chose to release some information while withholding the rest of the data requested.

The Department of Transportation and Communications (DOTC), for instance, gave PCIJ a copy of the NBN contract, but excluded the annexes.

Contacted by phone, the DOTC’s Contract Review and Documentation Division said the project supplier, China’s Zhong Xing Telecommunication Equipment Company Limited (ZTE), had claimed “proprietary rights” over the contract annexes and feasibility study.

PCIJ then requested the DOTC for a formal written explanation for the exclusion the annexes, but the department has yet to do so. Landingin, meanwhile, says the DOTC can still find a way to make important information like component costs (to check for overpricing) available without compromising the supplier’s rights.

‘Executive privilege’

PCIJ also asked for a formal written response from the agencies that rejected its requests. Out of the eight rejected requests, however, only three agencies issued a written response that stated the reason why the request was turned down. All the responses invoked either the so-called confidential nature of the information requested, or simply, executive privilege.

The Department of Finance (DOF) said the request for the loan agreement between Export-Import Bank of China and the Philippine Government for the Non-Intrusive Container Inspection System Project would have to be referred to the Office of the Chief Presidential Legal Counsel because the requested document “may fall within the mantle of executive privilege and information.” This is even though government deals, once signed, become public documents.

The Philippine Domestic Construction Board (PDCB), for its part, said it was turning down the request for the Excel file version of its Consolidated Constructors Performance Summary Report because its policy is “to keep the source documents or files in strict confidence.”

It must be stressed that the same report was already available in PDF format on the web site of the Government Procurement Policy Board (GPPB). PCIJ requested for a copy in Excel only because this would make it easier for researchers to segregate foreign-funded projects from locally funded ones, list contractors and projects by implementing agency, and rank contractors by worth of projects awarded to them. PCIJ later got the requested Excel version from the GPPB.

Then there was the Philippine National Railways (PNR), which declined to release North Rail and South Rail Linkage Project documents to PCIJ because, according to a PNR representative, its Korean partners in the venture had “reservations of some sort.”

Landingin says that in the past, he was able to secure North Rail documents. This time around, the PNR was not the only state institution that decided to withhold the requested papers. North Luzon Railways Corporation (NLRC) took almost seven weeks — during which it waited for the appointment of a new chief — to decide to turn down the request for North Rail project data. The PCIJ also had to call NLRC the most number of times (21) among the agencies it contacted for Landingin’s report to follow up requests.

North Rail, another ODA project that has encountered controversy and seems to be currently in limbo, was the subject of a PCIJ investigative report in 2005. It was therefore no surprise that procuring data on it turned out to be among the most difficult to pull off, as was also the case with those on the NBN.

Somehow, though, information on a lesser-known project was even harder to get — at least from its implementing agency. R.A. 6713 stipulates: “All public officials and employees shall, within 15 working days from receipt thereof, respond to letters, telegrams, or other means of communications sent by the public.” The Department of Public Works and Highways (DPWH), however, took 59 days just to say that the documents for the President Arroyo’s Bridges Program were undergoing audit by the Commission on Audit (COA).

Fortunately, PCIJ had mailed a request for copies of the same documents to the aid provider, Britain’s Department for International Development (DfID), in Scotland. PCIJ received the documents from DfID, by mail, 44 days later (October 5). PCIJ also had no problem getting a different set of requested information on the same project from NEDA.

Run-around game?

In this case, the problem may have been more with the agency involved rather than the project. PCIJ’s research intern Philip Ney recalls his dealings with DPWH officials during the process: “(A) department secretary referred me to the undersecretary, who referred me back to the secretary, who told me to talk to the same undersecretary, who once again told me that I needed to ask the secretary.”

But DPWH was not the only agency that seemed to be unused to entertaining requests for ODA project information, and wound up giving disorganized responses and unclear instructions. For example, the Metropolitan Waterworks and Sewerage System (MWSS) had already given permission to pick up the executive summaries of the Angat Water Utilization and Aqueduct Improvement Project and Laiban Dam Project on September 21, 2007. But when PCIJ showed up at the MWSS doorstep to get the papers, the decision had been reversed and the documents withdrawn. Another letter was sent and more calls had to be made before the documents were released — more than a month later.

Indeed, apparent disorganization among the agencies approached by the PCIJ was one of the major factors that led to more than half of the requests taking over 15 working days to process.

Agencies also often do not really follow the provision on the law that says, “The reply must contain the action taken on the request.” Apart from PCIJ, many other groups that had tried to secure documents from state agencies have experienced getting nothing more than an acknowledgment of the receipt of their request.

Vincent Lazatin, Transparency and Accountability Network (TAN) executive director, points out that the usual agency response letter saying, “We’ve received your letter,” or “We’re endorsing your request” does not necessarily mean action was already taken, as stipulated by law.

“What they do is they endorse you to a supervisor or the next higher official, but that’s not replying,” says senior journalist Tess Bacalla, who had also worked as a PCIJ fellow.

Helpful agencies

Still, the PCIJ did find some agencies and employees helpful. Some officials, who believed in the ODA projects they oversaw, were eager for the media — and ultimately, the public — to know more about these.

The Department of Social Welfare and Development (DSWD), for example, provided substantial documents for the Kapit-Bisig Laban sa Kahirapan – Comprehensive Integrated Delivery of Social Services (Kalahi-CIDSS) project eight days after PCIJ sent its letter of request. These included the contract agreement, loan agreement, implementation status report, annual reports, and project review and project appraisal documents with annexes that contained project cost analysis, cost-benefit analysis, sensitivity analysis, cost-effectiveness analysis, environmental and social safeguards and other important details.

The Bases Conversion Development Authority (BCDA) and the Pasig River Rehabilitation Commission (PRRC) were also two of the most cooperative in providing data for the Subic-Clark-Tarlac Expressway project and the Pasig River Environmental Management and Rehabilitation Sector Development Program (PREMRSDP), respectively. Both agencies took less than 15 working days to approve the requests.

Lawyer Malaluan says that any citizen who is denied access to public information can take several actions to assert his or her right. “You can file before the Supreme Court a petition for mandamus or you can exhaust your administrative remedies by going to the next higher office such as the Departments and then the Office of the President,” Malaluan suggests. “Or you may request assistance from the Office of the Ombudsman or file an administrative case with the Civil Service Commission.”

He concedes, though, that these remedies take a great deal of time.

In the meantime, Landingin encourages journalists to use all available avenues to get the right information to the public at the right time. He says that on one level, journalists must insist on their right to access information and documents affecting public welfare and use of public funds. On another, he says, the reality of red tape means journalists must also nurture contacts and develop sources to increase their chances of accessing information.

Simply put, transparency is an important element of good governance. ATIN has thus proposed the “Freedom of Information Act of 2007,” a law that will help mend the gaps in access to information and provide more teeth to Republic Act 6713. The bill is currently set for plenary hall debates in Congress. – Philippine Center for Investigative Journalism, 2008

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