Right to information

Elements of the right to information

For the proper invocation of the right to information, the following requisites must concur: (a) the
information sought is of public interest or public concern and (b) it is not exempted by law from the
operation of the constitutional guarantee.

In determining whether or not particular information is of public concern, no rigid test can be applied.
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 on a case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public.

The right, however, is not absolute. The right to information does not extend to matters recognized as
privileged information under the separation of powers, 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, which courts have long recognized as confidential.
Trade secret is also an exception to the application of the constitutional right. The right may also be
subject to other limitations that Congress may impose by law.

Restricted Under:

We on the respondents side , based on facts and jurisprudence, strongly agree that access to
information has its limitation and every privilege has its exceptions. In Akbayan Citizens Action
Party v. Aquino which involves access to the full text of the Japan-Philippines Partnership
Agreement including Japanese and Philippine offers in the course of the negotiation, petitioners asks the
Court to require the respondents to disclose said diplomatic negotiations. The Court ruled that from the
nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese
offers submitted during the negotiations towards its execution are matters of public concern. It is well-
established in jurisprudence that neither the right to information nor the policy of full public disclosure
is absolute, there being matters which, albeit of public concern or public interest, are recognized as
privileged in nature. The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final
text of the JPEPA may not be kept perpetually confidential since there should be ample opportunity
for discussion before a treaty is approved the offers exchanged by the parties during the negotiations
continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the
Japanese representatives submitted their offers with the understanding that historic confidentiality
would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not
only with Japan but with other foreign governments in future negotiations. A ruling that Philippine
offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine
representatives from frankly expressing their views during negotiations. Also, E.O. 608, Establishing
a National Security Clearance System For Government Personnel with Access to Classified Matters,
which commands all heads of government offices or agencies handling or having access to classified
matters shall strictly implement and institutionalize the security clearance procedure approved by the
Office of the National Security Adviser regarding the conduct of a comprehensive background
investigation on their personnel who by reason of their duty or employment, have access to classified
matters[51]. Its Implementing Rules and Regulations categorized[52]information as follows: Top Secret-
Information and material (matter) the improper handling of which would cause exceptionally grave
damage to the nation politically, economically, or from a security aspect. This category is reserved to the
nations closest secrets and is to be used with great reserve. Secret-Information and material (matter)
the unauthorized disclosure of which would endanger national security, cause serious injury to the
interest or prestige of the nation or of any governmental activity or would be of great advantage to a
foreign nation. Confidential- Information and material (matter) the unauthorized disclosure of which,
while not endangering national security, would be prejudicial to the interest or prestige of the nation or
any government activity, or would cause administrative embarrassment or unwarranted injury to an
individual or would be of advantage to foreign nation. Restricted- Information or material (matter)
which requires special protection other than that determined to be Top Secret, Secret, or Confidential.
Base on the Almonte v. Vasquez, Military, diplomatic and other national security matters which
in the interest of national security should not be divulged. A government privilege against disclosure is
recognized with respect to state secrets bearing on military, diplomatic and similar matters. This
privilege is based upon public interest of such paramount importance as in and of itself transcending the
individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot
enforce his legal rights. In Neri v. Senate Committee on Accountability of Public Officers and
Investigations which involves the refusal of Neri to answer three questions regarding the NBN Project on
the ground of executive privilege, the Court has been called upon to exercise its power of review and
arbitrate a debated dispute between the Courts co-equal branches of government. The issue in the case
is: Did Petitioners refusal to answer the three questions curb the publics right to information or
diminish the importance of public accountability and transparency? The Court said that the privileged
character of diplomatic negotiations has been recognized in this jurisdiction. Considering that the
information sought through the three (3) questions involves the Presidents dealings with a foreign
nation, the Court is wary of approving the view that Congress may peremptorily inquire into not only
official, documented acts of the President but even her confidential and informal discussions with her
close advisors on the pretext that said questions serve some vague legislative need. It is easy to discern
the danger that goes with the disclosure of the Presidents communication with her advisor. The NBN
Project involves a foreign country as a party to the agreement. It was actually a product of the meeting
of minds between officials of the Philippines and China. Whatever the President says about the
agreement - particularly while official negotiations are ongoing - are matters which China will surely
view with particular interest. It could adversely affect our diplomatic as well as economic relations with
the Peoples Republic of China. Lastly, Senate of the Philippines vs. Ermita which involves
E.O. 464 providing for the rule on executive privilege, petitioner questions the constitutionality of the
order on the ground that it violates the right to information. The issue in the case is: Does E.O. 464
violates the right of the people to information? The Court ruled that E.O. 464 is invalid insofar as it
allows the executive branch to evade congressional requests for information without need of clearly
asserting a right to do so and/or proffering its reasons therefor. A claim of privilege, being a claim of
exemption from an obligation to disclose information, must be clearly asserted. As U.S. v. Reynolds
teaches: The privilege belongs to the government and must be asserted by it; it can neither be claimed
nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are appropriate
for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is
designed to protect.