Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
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The Supreme Court of the Philippines ruled that a foreign investment group’s applications to build a petrochemical plant had to be disclosed, but any trade secrets and other confidential information could be redacted. The Bataan Petrochemical Corporation (BPC) applied to invest into Bataan State, but later amended its application to invest in a different region of Batangas. This angered a Bataan congressman who requested a copy of BPC’s original and amended application documents, which was denied, leading to a lawsuit. The Court reasoned that the inhabitants of Bataan had an interest in the establishment of a petrochemical plant because it would affect their economic life and health, and that BPC’s amended application required a new public notice to be filed and a new hearing to be held.
This case analysis was contributed by Right2Info.org
The Bataan Petrochemical Corporation (BPC), a Taiwanese private corporation, applied for registration with the Board of Investments (BOI) in February 1988 as a new domestic producer of petrochemicals in the Philippines. It originally specified the province of Bataan as the site for the proposed investment but later submitted an amended application to change the site to Batangas. Unhappy with the change of the site, Congressman Enrique Garcia of the Second District of Bataan requested a copy of BPC’s original and amended application documents.
The BOI denied the request on the basis that the investors in BPC had declined to give their consent to the release of the documents requested, and that Article 81 of the Omnibus Investments Code protected the confidentiality of those documents absent consent to disclose.
The BOI subsequently approved the amended application without holding a second hearing or publishing notice of the amended application. Garcia filed a petition before the Supreme Court.
The Court ruled that the BOI violated Garcia’s Constitutional right to have access to information on matters of public concern under Article III, Section 7 of the Constitution. The Court found that the inhabitants of Bataan had an “interest in the establishment of the petrochemical plant in their midst [that] is actual, real, and vital because it will affect not only their economic life, but even the air they breathe”. [p. 4] The Court also ruled that BPC’s amended application was in fact a second application that required a new public notice to be filed and a new hearing to be held.
Although Article 81 of the Omnibus Investments Code provides that “all applications and their supporting documents filed under this code shall be confidential and shall not be disclosed to any person, except with the consent of the applicant,” the Court emphasized that Article 81 provides for disclosure “on the orders of a court of competent jurisdiction”. [p. 4] The Court ruled that it had jurisdiction to order disclosure of the application, amended application, and supporting documents filed with the BOI under Article 81, with certain exceptions.
The Court went on to note that despite the right to access information, “the Constitution does not open every door to any and all information” because “the law may exempt certain types of information from public scrutiny”. [p. 4] Thus it excluded “the trade secrets and confidential, commercial, and financial information of the applicant BPC, and matters affecting national security” from its order. [p. 4] The Court did not provide a test for what information is excluded from the Constitutional privilege to access public information, nor did it specify the kinds of information that BPC could withhold under its ruling.
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