Making Public Enterprise Accountable: Legislating Freedom of Information as a Mechanism of Constituent Accountability Oversight

I. Introduction

In 1822, United States President James Madison warned: “A popular government without popular information or the means of acquiring it is but a prologue to farce or tragedy or perhaps both.”1 Almost two centuries later, a great tragedy plagued this nation caused by the suppression of information contained in the bank account of Jose Velarde in the impeachment proceedings of former President Joseph Estrada. It drew the people and the military to revolt that ultimately claimed his resignation.

Seven years thereafter the Philippines is still not one of the 70 nations2 that enjoy the blessings of Freedom of Information (FOI). This was recently brought to the fore when the Supreme Court, at its initiative, promulgated the rules on Writ of Habeas Data.3 Just few weeks ago, the Catholic Bishop of the Philippines was able to persuade President Gloria Macapagal-Arroyo to revoke EO 464.4 Albeit the right to information was established in 1973 Constitution and, subsequently, strengthened in 1987 Constitution, it has yet to gain legislative recognition.

This research paper argues that institutionalizing the right of information will strengthen the people’s control over public corporate officers and employees’ conduct in the performance of their duties thereby paving the way for accountability. It is here proposed that the enactment of Freedom of Information as an implement of the right of information will create a new context in which information operates. It will become an accountability mechanism and people’s oversight over public enterprise sector (PES).5 FOI will provide a vital base for a system of checks and balances (Flinders, 2000) and some scope to oversee these government activities (James, 2003) since the premise behind democracy is that public decisions should reflect the will of the people (Maskin and Tirole, 2004).

True that there are constitutional and statutory institutions that oversee public accountability, these mechanisms, however, are remedial in character and, at times, passive. As will be discussed later, FOI is a proactive and a preventive mechanism in pursuit of a more accountable government.

II. The Philippine Public Enterprise

The issue on accountability is essentially vital in public enterprise owing to their role in nation-building. As can be gleaned from their goals, government-owned and controlled corporations are established “in the interest of the common

good”6 while government instrumentalities are created to perform “essential governmental or public functions.”7 They are utilized as major tool for attainment of development goals (Briones, 1985). But the Philippines ranks 91 in 2007/08 Human Development Index and 101 in GDP per capita out of 177 countries.8

It has been written that PSE faced “distinct governance challenges” such as undue political interference and dilution of accountability challenges.9 Many of the problems attributed to poor performance of GOCCS arise from issues of poor governance. Improving corporate governance is therefore seen from its usefulness in reducing risks of poor financial performance and improving efficiency.10

In 1965, there were only 35 GOCCs. They tremendously increased to 303 by 1984. On that same year, then Ministry of Finance Cesar Verata announced that the country can no longer pay its foreign debts. Thus, debt restructuring and negotiation occurred which led to the privatization of some GOCCs since they comprise substantial portion of foreign debts. As of 2004, public enterprise was reduced to 133 with a total liabilities to P3.7 trillion compared to its total assets amounted to P4.5 trillion.11 To date, public enterprise relies heavily on national government for budget subsidy and equity. Fourteen GOCCs12 studied by the Senate Economic Planning Office posted persistent deficit since 1994 to 2004, reaching P90.7 billion in 2004 and an aggregate financial loss in the amount of P327.8 billion.13 The National Power Corporation alone had incurred financial loss of P33.7 billion (2002), P117 billion (2003) and P29.9 billion (2004) 14 or a consolidated financial loss of P180.6 billion.

III. Accountability Oversight

The search in ways to keep public officials accountable has lead scholars to identify various mechanisms of accountability. They distinguish it between formal and informal accountability. Formal mechanism are based on judicial, legislative, and executive or hierarchical controls, whereas informal mechanisms derived from society’s mores, its political and social philosophies (Roberts, 2002).

In our jurisdiction, the formal mechanisms are the courts, Commission on Audit (COA), the Office of the Ombudsman (OMB), the Congress through statutory oversights, budget hearings and hearings in aid of legislation, Civil Service Commission (CSC), Commission on Human Rights (CHR), and, Presidential Commission on Anti-Graft and Corruption (PAGC). In addition, public corporations is under “complimentary” system of monitoring wherein the primary responsibility for monitoring and coordinating the activities of GOCCs are entrusted to the executive departments to which they are attached; and in addition thereto, a regular over-all supervisory body oversees them.15 Further,

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Administrative Order No. 24 provides for various oversight agencies for GOCCs consisting of the Department of Budget and Management (DBM), National Economic Development Authority (NEDA), Bangko Sentral ng Pilipinas (BSP) and the Department of Finance (DOF) to look after the different concerns of GOCCs.16

The jurisdiction of the courts, OMB, CSC, and PAGC is to investigate and hear malfeasance and misfeasance committed by public servants. However, the nature of their oversight is remedial in inasmuch as they exercise jurisdiction when breach of official duty has been committed already; and passive as they assume jurisdiction only upon an instance of a complaint. As the nature of their oversight is highly adversarial, people tend to be discouraged in resorting to this oversight. Even if there is eagerness to prosecute cases, they are, at times barred because they are not the aggrieved party; needless to state, the expenses and delays in the prosecution of cases. On the other hand, the COA exercises power upon public fund and property only during post audit (after the fact), and CHR is limited to fact-finding investigation of human rights violations but denied of power to conduct preliminary investigation.

In the case of DBM, NEDA, BSP, and DOF they do not possess punitive jurisdiction to enforce accountability. Another impotency of these oversight agencies is the fact that PSE’s governing body is vested in the Board of Directors/Trustees which is usually chaired by a Cabinet Secretary to which the public corporation is attached. This leads to an oversight paradox where the oversight entity is co-equal rank/department and an alter ego of the President. For instance, NPC, 8 out of 9 board members are cabinet secretaries; for NDC, 5 out of 10; for LRTA, 5 out of 9; for PPA, 6 out of 9; and NHA, 6 out of 8.17

Finally, unlike corporate officers, they are periodically made accountable to the people through election and recall. This constituent oversight over elected officers are lacking in public enterprise, there is absence, therefore, of constituent nexus between the people and the corporate officers and employees.

IV. Public Corporate Good Governance and Accountability

Corporate governance refers to the distribution of rights and responsibilities among different participants in a corporation (the board, managers, shareholders and other stakeholders) (Wu and Malaluan, 2008) and it begins with a discussion of the role of the board of directors, who have a central role in corporate governance (Barrett, 2000). It is concerned with the relationship between the internal governance mechanisms of corporations, and society's conception of the scope of corporate accountability (Deakin and Hughes, 1997). Three

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fundamental principles of corporate governance are accountability, transparency and responsibility (Wu and Malaluan, 2008).

Public office is a public trust and that public officers and employees must at all times be accountable to the people are the constitutional policy on good governance. But these are not merely an abstract policy. The Constitution has established oversight bodies where abuse and misuse of governmental power may take cognizance. In keeping public servants accountable, various laws are already in place and sanctions are imposed in case of breach.

Obligations in accountability are: first, to account for the performance of their duties and, second, to accept sanctions (Mulgan, 2000). Accountability involves being answerable for decisions or actions, often to prevent the misuse of power and other forms of inappropriate behavior (Cameron, 2004, O’Loughlin, 1990, Acar et al., 2008). Accountability is the fundamental prerequisite for preventing the abuse of delegated power (Dwivedi, 1985). The notion of accountability holds government and society together like glue and it is at the heart of modern democratic processes (Hodge and Coghill 2007). It is the foundation of integrity, cuts to the soul of government and unmasks the government of the day of whatever façade it wears (Briones, 1991). As a delegate of the government, the public sector decision-maker is responsible for the public’s best interest and must make decisions accordingly (Kinchin, 2007). It is essentially about the controllability and answerability of public officials (Gregory and Hicks 1999) and is the key in the realization that public office is a public trust. The lack of accountability is the most conspicuous weakness in the corporate governance environment.18

V. Public Information as Accountability Mechanism

An informed citizenry is a prerequisite to meaningful participation in government.19 In Republic v Sandiganbayan20 it was pronounced that the right to information goes hand-in-hand with the constitutional policies of full public disclosure and honesty in the public service. It is meant to enhance the widening role of the citizenry in governmental decision-making as well in checking abuse in government. The public would gain a better perspective of vital issues confronting them and, thus, be able to criticize as well as participate in the affairs of the government in a responsible, reasonable and effective manner (Chavez v PCGG).21 This principle is aimed at affording the people an opportunity to determine whether those to whom they have entrusted the affairs of the government are honestly, faithfully and competently performing their functions as public servants.22 Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation.23 In Baldoza v. Dimaano,24 the right was considered as

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a form of participation, it held: “There can be no realistic perception by the public of the nation's problems, nor a meaningful democratic decision-making if they are denied access to information of general interest.” Also in the landmark case of Valmonte v Balmonte,25 the right was seen as a “dialogue” that will make government responsive to the people, thus:

[t]he essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the discussion are aware of the issues and have access to information relating thereto can such bear fruit.

Access to information is an essential characteristic of accountability—virtually

all accountability relies on the availability of relevant and timely information (Cameron, 2004). The linkage between public officials and citizens leads to the success and advancement of public affairs, and separation between them results in decline of public managers (Fard and Rostamy, 2007). Citizen can exact accountability and it is possible in a free and open system where information on the operation of the government is accessible to them.26 If the goal is to make the corporate sector a truly public sector, then it must be opened to the public. An active citizenship would seem to extract more political accountability and responsibility (Baker, 2001).

The curtain that shields the public from free flow information and openness of public corporations’ operations and managements has to be pierced in the name of accountability. Controllability of corporate officers’ is essential in accountability as found in the literature review above. Likewise, transparency and public information serve as external control over public corporations upon availability of relevant and timely information. It is submitted that the weakness in our corporate good governance can be attributed to a certain degree in the weakness in the right to information.

VI. Grappling the Elusive Right of Information: A Survey of Supreme Court Decisions on Administrative Denial of Right to Information

The right to information was not a constitutional right until 1973 Constitution. This right was strengthened in the 1987 Constitution, Section 7, Article III provides:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers

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pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The right covers three categories of information which are "matters of public concern," namely: (1) official records; (2) documents and papers pertaining to official acts, transactions and decisions; and (3) government research data used in formulating policies.27 In Legaspi v Civil Service Commission28 the Court declared that the constitutional guarantee to right to information arise only when the information being requested is (a) of public concern or one that involves public interest, and, (b) not exempted by law from the operation of the constitutional guarantee.

a. What Constitute Public Concern

On whether an information being sought is of public concern has not found judicial settlement. Legaspi declared that “in determining whether or not a particular information is of public concern there is no rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes exact definition.”

The case of Aquino-Sarmiento v Morato29 gives a general guideline on what is embraced in the right to information, it held that: “official acts of public officers done in pursuit of their official functions are public in character; hence, the records pertaining to such official acts and decisions are within the ambit of the constitutional right of access to public records.”30 In Subido v Ozaeta31 it is “the public concern is deemed covered by the statutory right was the knowledge of those real estate transactions which some believed to have been registered in violation of the Constitution.” In Legaspi it is premised on “the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligible.”

The case of Valmonte involved the denial to petitioner to access information on the list of names of “opposition members of Batasan Pambansa who were able to secure clean loan of P2 million each on guarantee of Mrs. Imelda Marcos.” The GSIS denied the request on the ground that it is not of public concern and, besides, it is covered by confidentiality rule. But the Court held that “transactions entered into by the GSIS, a government-controlled corporation created by special legislation are within the ambit of the people's right to be informed pursuant to the constitutional policy of transparency in government dealings.”

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In Chavez v PCGG it was held that “there is no doubt that the recovery of the Marcoses' alleged ill-gotten wealth is a matter of public concern and imbued with public interest.”32 In a later case of Chavez v Public Estates Authority33

respondent’s contention that only consummated contract is covered by the right to information was denied, the Court held that the right “includes official information on on-going negotiations before a final contract.”

Unfortunately, the issue on whether a matter is of public concern “is for the courts to determine in a case to case basis whether… it relates to or affects the public.”34 Further, “there are no specific laws prescribing the exact limitations within which the right may be exercised or the correlative state duty may be obliged.”35

b. Limitations

The right to information on "matters of public concern or of public interest" is both the purpose and the limit of the constitutional right of access to public documents (Bernas, 1996). Exempt from coverage are privileged information, military and diplomatic secrets, matters affecting national security and public order,36 matters recognized as privileged information under the separation of powers, conversations and correspondence between the President and the public official covered by this executive order 37 trade secrets and banking transactions, criminal matters, and other confidential information, information between inter-government agencies prior to the conclusion of treaties and executive agreements, and discussion in close-door Cabinet meetings 38

Additionally, Congress has also prescribed other limitations on the right to information in several legislations.39 Chavez v PCGG elaborated in detailed the matter outside the scope of the right to information, as follows:

(1) National Security Matters

At the very least, this jurisdiction recognizes the common law holding that there is a governmental privilege against public disclosure with respect to state secrets regarding military, diplomatic and other national security matters. But where there is no need to protect such state secrets, the privilege may not be invoked to withhold documents and other information, provided that they are examined "in strict confidence" and given "scrupulous protection."

Likewise, information on inter-government exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest.

(2) Trade Secrets and Banking Transactions

The drafters of the Constitution also unequivocally affirmed that, aside from national security matters and intelligence information, trade or industrial secrets

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(pursuant to the Intellectual Property Code and other related laws) as well as banking transactions (pursuant to the Secrecy of Bank Deposits Act 28 ) are also exempted from compulsory disclosure.

(3) Criminal Matters

Also excluded are classified law enforcement matters, such as those relating to the apprehension, the prosecution and the detention of criminals, which courts may not inquire into prior to such arrest, detention and prosecution. Efforts at effective law enforcement would be seriously jeopardized by free public access to, for example, police information regarding rescue operations, the whereabouts of fugitives, or leads an covert criminal activities.

(4) Other Confidential Information

The Ethical Standards Act further prohibits public officials and employees from using or divulging "confidential or classified information officially known to them by reason of their office and not made available to the public."

Other acknowledged limitations to information access include diplomatic correspondence, closed door Cabinet meetings and executive sessions of either house of Congress, as well as the internal deliberations of the Supreme Court.

c. Access may be Regulated

The right, however, is subject to reasonable regulations that the may be promulgated relating to the manner and hours of examination, to the end that damage to or loss of the records may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other persons entitled to inspect the records may be insured.40 However, the authority to regulate41 the manner of examining public records does not carry with it the power to prohibit. Legaspi held that:

A distinction has to be made between the discretion to refuse outright the disclosure of or access to a particular information and the authority to regulate the manner in which the access is to be afforded. The first is a limitation upon the availability of access to the information sought, which only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the government agency charged with the custody of public records. Its authority to regulate access is to be exercised solely to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional right by other persons shall be assured.

VII. The US’ Freedom of Information Act: A Possible Model of Legislation Because of our constitutional kinship with the United States where our concept of freedom of expression and of the press is largely derived, I present US’ Freedom of Information Act42 (FOIA) as a possible model. In fact, US

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jurisprudence and commentary on FOIA had found its way in the opinion in Neri v. Senate43and Senate v Ermita44 and in not more distance jurisprudence the cases of Legaspi, Chavez v PCGG, Chavez v PEA, Aquino-Sarmiento, Valmonte, Baldoza, and Subido.

The US FOIA was founded upon the philosophy that because governmental decisions belong to the public, the people, as of right, may claim access to them and lets the citizen strip away the secrecy that surrounds the lawmaking process and discover who is making the law, for what purposes, to affect whom (Clark, 1975). But FOAI is not exclusive for citizens, broad access to government information one of the grand objectives of the law is “reasonable protection of privacy and national defense, intelligence, and business trade secrets” (Horowitz and Miller, 1982).

a. Federal Registry and its Content

The US FOIA applies only to the executive branch of federal government. It is divided into three categories: first, those which require the agencies to give notice of what their files contain; second, those which grant to a person a right of access to the files and a remedy if the right is refused; and, third, those which exempt certain information from disclosure (Clark, 1975). In the first, it required each agency of federal government to maintain Federal Register.45 The registry book contains: (1) descriptions of its central and field organization, statements of the general course and method; (2) rules of procedure, descriptions of forms; and (3) substantive rules of general applicability. 46 These matters, however, require no publication in the Philippine jurisdiction, as they are considered internal matters in nature.

The counterpart of Federal Registry is the Official Gazette. The Gazette is the official government repository to promulgate and publish the texts of all such decrees, orders and instructions so that the people may know where to obtain their official and specific contents.47 And only legislative acts and resolutions of a public nature, executive and administrative orders and proclamations, important decisions of the Supreme Court and the Court of Appeals, documents required by law or by the President to be published.48 In Tañada v. Tuvera,49 only statutes, including those of local application and private laws, administrative rules and regulations” are required to be published and, unfortunately, the publication is not premised on right to information but in compliance with due process.

As can be shown, there is a stark contrast with public information under FOAI and the Philippines’ concept of public information.

b. Public Inspection, Copying and Reproducibility of Documents

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Federal agencies (which include US’ GOCCs) shall make available for public inspection and copying such as: (1) final opinions, those statements of policy and interpretations; (2) administrative staff manuals and instructions to staff that affect a member of the public; (3) copies of all records which have been released to any person under paragraph; and (4) general index of the records.50

In making access to information more accessible, the head of agency shall prepare and make publicly available upon request: (1) an index of all major information systems of the agency; (2) a description of major information and record locator systems maintained by the agency; and (3) a handbook for obtaining various types and categories of public information from the agency.51 In further strengthening this right, the agency is required to “maintain its records in forms or formats that are reproducible”52 and “shall make reasonable efforts to search for the records in electronic form or format.”53

In this jurisdiction foregoing is inexistence in every agency of the government. It has no data base for public consumption. In Valmonte, access to official records does not include “to compel custodians of official records to prepare lists, abstracts, summaries and the like in their desire to acquire information or matters of public concern.”

c. Exempted Information

Exempt from the FOIA are: (1) interest of national defense or foreign policy and executive privilege; (2) those specifically exempted from disclosure by statute; (3) trade secrets and commercial or confidential financial information; (4) inter-agency or intra-agency memorandums or letters; (5) personnel and medical files and similar files; (6) records or information compiled for law enforcement; (7) documents prepared by an agency responsible for the regulation or supervision of financial institutions; or (8) geological and geophysical information and data, including maps, concerning wells.54

d. Reporting and Court Examination

All federal agencies are required to submit annual report to the Attorney General as regards the statistics on requests and actions made thereto of information and amount of fees collected. Finally, should the request is denied there “the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof”55 is exempt from the law. In such case the burden of proof rests upon the agency.

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VIII. Conclusion

The people is still groping in the dark because the right to information as embedded in the Constitution struggles for real recognition. While it is a self-executory right, it does not mean that it is a functional right. Although there is an unambiguous constitutional duty imposed upon government to allow access to public information its clarity is blurred by semantics—the elusiveness of what “public concern” really means. The outright administrative rejection of prima facie official public documents such as names of civil service eligible in Legaspi, the names of debtors in GSIS in Valmonte, examination of land titles in Subido, documents regarding ill-gotten wealth in Chavez v PCGG, and documents pertaining to on-going contracts in Chavez v PEA are manifestation on how the right to information is so infirm in this jurisdiction.

But the disability in the right to information is more on its functionality than its elusive meaning. The transcendental issue at hand is that whether under the existing legal framework the State has fulfilled its duty to fully recognize the right. The right has to be concretized in medium, readily available to the public. The State is obliged to give information to the public: information which are not unilaterally chosen by the concerned agency but predetermined by the legislature. Information does not belong to corporate officers and employees themselves but belong to the people and, therefore, the latter has a right to demand for them.

As their charters provide, the citizens as a constituent entity are not integrated within their internal and external control of the organizational structures of the GOCCs. This is so since they are not part of the political framework of the government, they are corporate entities with separate juridical personalities enjoying operational autonomy and independence through their statutory charters or under general law. But when foreign debts and report of non-performing public corporations beset the GOCCs and when 14 corporations as previously mentioned suffered P327.8 billion financial loss and no explanation and information were relayed to the people, transparency and openness have to be instituted as means of securing accountability.

As it stands, there is lacking mechanism in giving, receiving, storing, and accessing information in the Philippines. Official registry book is inexistence in GOCCs and instrumentalities of the government. The descriptions of their central and field organizations, statements of the general course and method, rules of procedure, descriptions of forms, and substantive rules of general applicability open to the public are shunned from the public. The matter on indexing information systems as well as its description of major information and record locator and a handbook for obtaining various types and categories of public

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information is not required of any agency. Data base where forms and documents including contracts in a reproducible form are not available.

Consequently, lacking all these information the people had been put in a quandary and had been effectively denied of participation, of feedback, of dialogue, of consultation, and, possibly, make pubic corporate officers accountable. How can people complement the existing accountability oversights such the courts, OMB, CSC, and PAGC when they are unaware of the operations of the GOCCs for unavailability of information that they can bring to these oversights. As held in Chavez v PEA “unless citizens have the proper information, they cannot hold public officials accountable for anything.”

IX. Recommendation

It is herein recommended that Freedom of Information be legislated by the Congress, the US’ FOIA can be viewed as possible model. By enacting it, it is hoped that it will promote culture of openness and transparency. That it will secure people’s participation in the decision-making and will ultimately make public servants more accountable.

As no nexus exist between corporate officers and the people in terms of accountability mechanism, a law on Freedom of Information will close the gap. It will serve as an external control mechanism that the people can exercise over them, the people in this case act as citizens, as stakeholders/stockholders, and as customers.

Said law will not invade privacy rather the right to privacy will be protected as well as state’s secrets, privilege communication and business trade secrets. The institutionalization of freedom of information will perhaps prevent a similar tragedy that struck this nation seven years ago.

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1 End Notes

Clark, E. Holding Government Accountable: The Amended Freedom of Information Act: An Article in Honor of Fred Rodell, The Yale Law Journal, Vol. 84, No. 4. (Mar., 1975), pp. 741-769 citing Environmental Protection Agency v. Mink, 410 U.S. 73, 110-11 (1973) (Douglas, J., dissenting).

2 <http://en.wikipedia.org/wiki/Freedom_of_Information_Act> visited on March 22, 2008.3 A. M. No. 08-1-16-SC, January 22, 2008.4 EO 464 was affirmed as Constitutional in Senate v Ermita, G.R. No. 169777, April 20, 2006.5 I refer to public enterprise here as both the government-owned and controlled corporations and government

instrumentalities under Section 2 (10) and (13) of the Introductory Provisions of the Administrative Code of 1987, respectively.

6 Sec. 15, Art. 12, 1987 Const.7 Manila International Airport Authority vs Court of Appeals, GR No 155650, July 20, 2006.8 http://hdrstats.undp.org/countries/country_fact_sheets/cty_fs_PHL.html visited on March 29, 2008.9 Senate Economic Planning Office and United Nations Development Programme, supra. 10 Id.11 Senate Economic Planning Office and United Nations Development Programme, A Profile of Selected Philippine

Government-Owned and –Controlled Corporations, 2006.12 Home Guaranty Corporation (HGC), Light Rail Transit Authority (LRTA), Local Water Utilities Administration (LWUA),

Metropolitan Waterworks and Sewerage System (MWSS), National Development Company (NDC), National Electrification Administration (NEA), National Food Authority (NFA), National Housing Authority (NHA), National Irrigation Administration (NIA), National Power Corporation (NPC), Philippine Amusement and Gaming Corporation (PAGCor), Philippine Charity Sweepstakes Office (PCSO), Philippine Economic Zone Authority (PEZA), Philippine National Oil Company (PNOC), Philippine National Railways (PNR), and Philippine Ports Authority (PPA).

13 Senate Economic Planning Office and United Nations Development Programme, A Profile of Selected Philippine Government-Owned and –Controlled Corporations, 2006.

14 COA Report 2002, 2003 and 2004 cited in Senate Economic Planning Office and United Nations Development Programme, A Profile of Selected Philippine Government-Owned and –Controlled Corporations, 2006.

15 Santos, M.F., Jr., The Imperative of Adopting the Pillars of Good Governance Towards a More Rational and Effective Monitoring and Coordination of Government-Owned or Controlled Corporations, 2007 (unpublished).

16 Id.17 Senate Economic Planning Office and United Nations Development Programme, supra..18 Economic and Public Sector Review World Bank, The Public Enterprise Sector 2002,

(http://www.adb.org/documents/books/tuvalu_2002_Economic_PSR/chap3.pdf visited on March 10, 2008)19 Justice Puno dissenting opinion in Tolentino v Comelec, G.R. No. 148334, January 21, 2004.20 Republic v Sandiganbayan, G.R. No. 104768, July 21, 2003.21 Chavez v PCGG, G.R. No. 130716, December 9, 1998 citing 16A Am Jur 2d 315-317, § 497.22 Id. citing 66 Am Jur § 19, Records and Recording Laws, citing MacEwan v. Holm, 266 Or 27, 359 P2d 413, 85,

ALR2d 1086.23 Chavez v Public Estates Authority, G.R. No. 133250, July 9, 2002.24 71 SCRA 14 (1976).25 Valmonte v. Belmonte, Jr. 170 SCRA 256 (1989). 26 Philippine Public Enterprise in the 80’s: Problems and Issues, Development Research News, Vol. III, No. 4 , July-

August 1985.27 Chavez v Public Estates Authority, supra.28 150 SCRA 530 (1987).29 203 SCRA 515, 522-23, November 13, 1991.30 See Chavez v PCGG, supra.31 80 Phil. 383 (1948).32 Chavez v PCGG, supra. citing Republic v. Provident International Resources Corp., 269 SCRA 316, 325, March 7,

1997; Republic v. Palanca, 182 SCRA 911, 918, February 28, 1990; Republic v. Lobregat et al., 376 SCRA 388, January 23, 1995.

33 G.R. No. 133250. July 9, 2002.34 Id.35 Chavez v PCGG, supra.36 People's Movement for Press Freedom, et al. v. Hon. Raul Manglapus, G.R. No. 84642, April 13, 1988.37 Almonte v. Vasquez, 244 SCRA 286 (1995).

38 Chavez v PCGG, supra.39 Chavez v Public Estates Authority, supra. citing Section 270 of the National Internal Revenue Code punishes any

officer or employee of the Bureau of Internal Revenue who divulges to any person, except as allowed by law, information regarding the business, income, or estate of any taxpayer, the secrets, operation, style of work, or apparatus of any manufacturer or producer, or confidential information regarding the business of any taxpayer, knowledge of which was acquired by him in the discharge of his official duties. Section 14 of R.A. No. 8800 (Safeguard Measures Act) prohibits the release to the public of confidential information submitted in evidence to the Tariff Commission. Section 3 (n) of R.A. No. 8504 (Philippine AIDS Prevention and Control Act) classifies as confidential the medical records of HIV patients. Section 6 (j) of R.A. No. 8043 (Inter-Country Adoption Act) classifies as confidential the records of the adopted child, adopting parents, and natural parents. Section 94 (f) of R.A. No. 7942 (Philippine Mining Act) requires the Department of Environment and Natural Resources to maintain the confidentiality of confidential information supplied by contractors who are parties to mineral agreements or financial and technical assistance agreements.

40 Valmonte v. Belmonte, Jr., supra.41 Legaspi v. Civil Service Commission, 150 SCRA 530 (1987). 42 5 U.S.C. § 552, As Amended in 2002.43 G.R. No. 180643, March 25, 2008.44 G.R. No. 169777, April 20, 2006.45 5 U.S.C. § 552(a)(1).46 Id. Each agency shall separately state and currently publish in the Federal Register for the

guidance of the public—(A) descriptions of its central and field organization and the established places at which, the employees (and in the

case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions;

(B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;

(C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

(D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and

(E) each amendment, revision, or repeal of the foregoing.47 Justice Claudio Teehankee said in Peralta vs. COMELEC 82 SCRA 30, dissenting opinion.48 Section 1 of Commonwealth Act 638.49 135 SCRA 27(1985).50 5 USC 552 (a) (2) Each agency, in accordance with published rules, shall make available for public

inspection and copying—(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;(B) those statements of policy and interpretations which have been adopted by the agency and are not published in

the Federal Register;(C) administrative staff manuals and instructions to staff that affect a member of the public;(D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3)

and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and

(E) a general index of the records referred to under subparagraph (D);51 5 USC 552 (g) (1) to (3) 52 Id. (a) (3) (B).53 Id. (a) (3) (C).54 Id. (b) (1) to (9).55 5 USC 552 (a) (4) (B).

References

Acar, M. et al., Accountability When Hierarchical Authority Is Absent: Views From Public-Private, The American Review of Public Administration, 2008; 38; 3.

Baker, A., Accountability and Responsibility of Government Public Bodies, The Political Quarterly, 2001.

Barrett, P., Balancing Accountability and Efficiency in a More Competitive Public Sector Environment, Australian Journal of Public Administration, 59(3)58–71, September 2000.

Bernas, J., The 1987 Constitution of the Republic of the Philippines a Commentary 335, (1996 ed.).

Briones, L, Public Financial Accountability for Integrity and Results: The Case of the Philippine Bureau of the Treasury in Governance, Corruption and Public Financial Management edited by Salvatore Schiavo-Campo, 1991.

Briones, L, The Role of Government-Owned or Controlled Corporations in Development, Philippine Journal of Public Administration, Vol. XXIX, No. 4, October 1985

Cameron, W., Public Accountability: Effectiveness, Equity, Ethics, Australian Journal of Public Administration, 63(4):59–67, December 2004.

Clark, E. Holding Government Accountable: The Amended Freedom of Information Act: An Article in Honor of Fred Rodell, The Yale Law Journal, Vol. 84, No. 4. (Mar., 1975), pp. 741-769 citing Environmental Protection Agency v. Mink, 410 U.S. 73, 110-11 (1973) (Douglas, J., dissenting).

Deakin S. and Hughes A., Comparative Corporate Governance: An Interdisciplinary Agenda, Journal of Law and Society, Vol. 24, No. 1, Corporate Governance. (Mar., 1997), pp. 1-9.

Dwivedi, O., Ethics and Values of Public Responsibility and Accountability, International Review of Administrative Sciences, 1985; 51; 61

Fard H. and Rostamy, A., Promoting Public Trust in Public Organizations: Explaining the Role of Public Accountability, Public Organize Rev. (2007) 7:331–344.

Flinders, M., The Politics of Accountability: A Case Study of Freedom of Information Legislation in the United Kingdom, The Political Quarterly, 2000.

Gregory, R and Hicks, C. Promoting Public Service Integrity: A Case for Responsible Accountability, Australian Journal of Public Administration, 58(4): 3-15, December 1999

Hodge, G. and Coghill Ken, Accountability in the Privatized State Governance, An International Journal of Policy, Administration, and Institutions, Vol. 20, No. 4,October 2007 (pp. 675–702).

Horowitz, P. and Miller P., The Freedom of Information Act: Federal Policy and the Writing of Contemporary History, The Public Historian, Vol. 4, No. 4. (Autumn, 1982), pp. 87-96.

James, C., Economic Rationalism and Public Sector Ethics: Conflict and Catalysts, Australian Journal of Public Administration, 62(1): 95-108, March 2003.

Kinchin, N., More than Writing on aWall: Evaluating the Role that Codes of Ethics Play in Securing Accountability of Public Sector Decision-Makers, The Australian Journal of Public Administration, Vol. 66, No. 1, pp. 112–120, 2007.

Maskin, E and Tirole, J., The Politician and the Judge: Accountability in Government, The American Economic Review, Vol. 94, No. 4. (Sep., 2004), pp. 1034-1054.

Mulgan, R., Comparing Accountability in the Public and Private Sector, Australian Journal of Public Administration, 59(1): 87-89, March 2000.

O’Loughlin, G., What is Bureaucratic Accountability and How can We Measure it?, Administration & Society, 22, (1990) (pp. 275-302).

Roberts, N., Keeping Public Official Accountable Through Dialogue: Resolving the Accountability Paradox, Public Administration Review, November/December 2002, Vol. 62, No. 6.

Wu, X. and Malaluan, N., A Tale of Two Concessionaires: A Natural Experiment of Water Privatisation in Metro Manila, Urban Studies Journal Limited, 45(1) 207–229, January 2008.