TECHNOLOGY AND THE LAW
ATTY. BERNE GUERRERO
AURE, LELILA G. (2007-0228) 2 September 2011
REACTION PAPER
“ARE ORDINARY CITIZENS ENTITLED TO FREE ACCESS TO INFORMATION EVEN IF THE INFORMATION IS CONFIDENTIAL?”
Our law recognizes the right to information and freedom of expression. Freedom is a right or liberty guaranteed by a constitution or fundamental law (Webster 1971). In this regard, Section 7 of the Bill of Rights of the 1987 Constitution reads: “The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers 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 limitations as may be provided by law.” In addition, Article II (Declaration of Principles and State Policies), Section 28 also states: “Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.” Hence, it is clear that access to information is a guaranteed right.
However, every right has its limitation. It can be observed that the 1987 Constitutions also stated limitations to access information as may be provided by law. Thus, an ordinary citizen may be denied to access certain information if it is confidential or the revelation of information requested will create a clear and present danger of war, invasion or any external threat to the State, or would unduly weaken the negotiating position of the government in an ongoing bilateral or multilateral negotiation or seriously jeopardize the diplomatic relations of the Philippines with one or more states with which it intends to keep friendly relations or the information requested pertains to the personal information of a natural person other than the requesting party, and its disclosure would constitute a clearly unwarranted invasion of his or her personal privacy (Senate Committee Report No. 534 2009).
On the other hand, ordinary citizens should be able to access the restricted or confidential information if public interest in the disclosure outweighs the harm to the interest sought to be protected by non-disclosure (ATIN 2009). Thus, the paramount consideration of the accessibility of information is not the nature of information but the magnitude of benefits over its costs. In this regard, ordinary citizens must be allowed to access confidential information if its disclosure will outweigh the harm of its non-disclosure.
In view of the above discussion, it is also worth to point out that our law also protects the right to privacy. An important part of that right is the protection of confidential information such as but not limited to financial, credit, insurance, medical and other records that are expected to be confidential most especially to private individuals. Between the Right to Information and Right to Privacy, the latter prevails. The limits of freedom of information and expression are reached when it touches upon matters of private concern. The improper access to confidential information, most especially on personal matters violates the constitutional right to privacy. Section 3, Article III of the Constitution provides that “The privacy of communication and correspondence shall be inviolable, except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law”.
With regard to the record keeper of such confidential information, he also has the duty not to disclose the information in the record without the consent of the individual unless required to do so by legal process or government reporting requirements. Real protection demands that the individual have the means to prevent improper disclosures by a record keeper and secure redress against a record keeper who violates the basic expectation of confidentiality.
However, similar to the right to information, right to privacy also has limitations. A record keeper's duty not to disclose recorded information in which an individual has a legitimate expectation of confidentiality should not prohibit every disclosure. Obviously, there are circumstances in which the record keeper should have the discretion, or even the duty, to disclose. Protecting privacy does not mean completely insulating an individual. If a record keeper becomes aware from information generated in its relationship with an individual that he is engaged in illegal activity, then the record keeper should be under some obligation to disclose that information to proper authorities, as would any other citizen. For example, if a bank holds confidential documentary information which indicates that an individual is engaged in illegal transfers of funds to a foreign nation, the bank might be implicated as an accessory if one of its officers were aware of the transfer and the bank did not report it.
In summary, ordinary citizen are generally prohibited to access information in which a legitimate expectation of confidentiality should exist most especially if it is within the ambit of one’s privacy. However, if non-disclosure of the information will harm public interest such as national security, ordinary citizen who access such information should not be sanctioned.
References:
Access to Information Network (ATIN) 2009, Freedom of Information Bill, House Bill No. 3732, A presentation to CHAT.
Philippine Constitution 1987, Declaration of Principles and State Policies, Section 28
Philippine Constitution 1987, Bill of Rights, Section 7
Senate Committee Report No. 534 2009, Senate Bill No. 3308.
Webster Third New International Dictionary 1971
38 Burdeau v. McDowell, 256 U.S. 465 (1921)
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