MANILA - Sen. Miriam Defensor Santiago on Monday said the Freedom of Information (FOI) Bill should reconcile two provisions in the Bill of Rights so as not to face a constitutional challenge before the Supreme Court.
In her interpellation before the Senate, Santiago said there are two provisions in the Bill of Rights which might clash with each other: the Privacy of Communications, and the Right to Information.
She said the law must draw a distinction between "the mandatory duty to disclose; and on the other hand, the duty to permit access to information."
Under the Bill of Rights, the provision of communications and correspondence shall be inviolable. On the other hand, the right of the people to information on matters of public concern shall be recognized.
"We have to be able to finish the antagonism between these two provisions lest critics question the constitutionality of the FOI law in the Supreme Court,” she said.
Santiago said the FOI bill should be reconciled with the existing Data Privacy Act and other laws.
In other countries, a freedom of information law covers information only when the information is under control of the state.
Santiago said the President of the Philippines has the “presidential communication privilege,” while other executive officials are entitled to the “deliberative process privilege.”
"The Senate should be careful because the presidential communications privilege is a form of executive privilege and is rooted in the separation of powers,” Santiago said, citing the case of U.S. v. Nixon, in the United States.
The senator cited Philippine cases, including the 2012 Chavez v. Public Estates Authority, and the 2008 case of Neri v. Senate.
In her interpellation, Santiago said the FOI Bill should consider the “deliberative process privilege” to prevent premature disclosure of decisions, and to preserve the quality of decision-making.
Santiago, referring to the exceptions listed in the bill, said that it should include the exceptions consisting of those provided by the National Internal Revenue Code, AIDS Prevention and Control Act, and Inter-Country Adoption Act, in addition to information provided by foreign governments.
A previous Supreme Court ruling also emphasized the provision in the Philippine Mining Act requiring the DENR “to maintain the confidentiality of confidential information supplied by contractors who are parties to mineral agreements.”
Santiago also turned to the aim of the FOI Bill to promote “best practices of appropriate information technology.”
She stressed that when information is disclosed to the public, it should be accurate, decipherable, and user-friendly.”