Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Supreme Court of the Philippines held that the 1987 Constitution provides that there is a duty on the government to permit access to information related to government projects and policies even though there is no enabling law that imposes a duty on government bodies to publicly disclose such information. The Solicitor General petitioned the Court for, among other things, access to all documents and information relating to a state sponsored infrastructure development project that had gone awry. The Court ruled that access must be granted because of twin provisions of the Constitution which seek to promote transparency in government operations, as well as provide the people sufficient information to effectively exercise their constitutional rights.
This analysis was contributed by Right2Info.org.
In his capacity as taxpayer, the Solicitor General Francisco Chavez petitioned the Court directly for, among other things, access to all documents and information relating to the Smokey Mountain Development and Reclamation Project (the “Project”), including its underlying Joint Venture Agreement (JVA) between the National Housing Authority (NHA), a government body, and R-II Builders, Inc. (RBI).
With Congress having approved the Project as a boost to infrastructure through its development of low-cost housing projects, a private sector joint venture scheme was pursued in accordance with the Build-Operate-and-Transfer Law whereby “the contractor undertakes the construction . . . [for] the government agency or local government unit concerned which shall pay the contractor its total investment expended on the project, plus reasonable rate of return”. After multiple design changes, cost overruns, and corresponding amendments to the JVA, the Project was ultimately suspended, and RBI made demands for payment. A few years later, the Housing and Urban Development Coordinating Council initiated a bidding process for the work remaining on the Project, and the NHA reached a settlement with RBI to terminate the original JVA. Raising constitutional issues and asserting his right to all information related to the Project, Mr. Chavez filed a petition directly with the Court.
Deciding on the issue of whether the NHA must be compelled to disclose all information related to the Project, the Court ruled that relief must be granted because the right of the people to information on matters of public concern is enshrined in the 1987 Constitution. Specifically, Article II, Section 28 and Article III, Section 7 of the Constitution, taken together as “twin provisions,” adopt a policy of full public disclosure on all transactions involving public interest and acknowledge the people’s right to information. Case law further elucidates these constitutional tenets by stating that “an essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people . . . These twin provisions of the Constitution seek to promote transparency in policy-making and in the operations of the government, as well as provide the people sufficient information to exercise effectively other constitutional rights”. In defining the limits of these freedoms, the Court noted that such information requests must pertain to definite propositions of the government and that information might be shielded by applicable privileges (e.g. military secrets and information relating to national security). Finally, the Court recognized that because no enabling law exists providing government agencies with the procedural mechanics to disclose such information, the NHA cannot be faulted for an inability to disclose. Nevertheless, where a duty to disclose does not exist, there still may exist a duty to permit access, and so the Court ordered the NHA to permit access to all information related to the Project.
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