With the proliferation of different contracts entered into by the Philippine Government, whether in the local or international arena, Filipino people have become cautious and vigilant of its effects on their lives. The people, however, cannot give opinion without being speculative, unless properly informed of the terms of the contracts. 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.[1]

The right of the people to information on matters of public concern is a constitutionally enshrined right. The Constitution provides that:

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 the policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.[2]

This is a self executory provision which can be invoked by any citizen before the courts.[3] Said provision is usually invoked in conjunction with Section 28, Article II of the 1987 Constitution which states that:

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.

Purpose of the constitutional provisions.

In the case of Chavez vs. PEA[4], the Supreme Court has articulated the purpose of the above stated provisions in this wise:

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. These twin provisions are essential to the exercise of freedom of expression. If the government does not disclose its official acts, transactions and decisions to citizens, whatever citizens say, even if expressed without any restraint, will be speculative and amount to nothing. These twin provisions are also essential to hold public officials “at all times x x x accountable to the people,” for unless citizens have the proper information, they cannot hold public officials accountable for anything. Armed with the right information, citizens can participate in public discussions leading to the formulation of government policies and their effective implementation. An informed citizenry is essential to the existence and proper functioning of any democracy.

In the case of Valmonte v. Belmonte, Jr.[5], the Court stated that:

“An 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.”

Elements of the right to information.

For the proper invocation of the right to information, the following requisites must concur: (a) the information sought is of “public interest” or “public concern” and (b) it is not exempted by law from the operation of the constitutional guarantee.[6]

In determining whether or not particular information is of public concern, no rigid test can be applied. ‘Public concern’ like `public interest’ is a term that eludes exact definition. Both terms embrace a broad spectrum of subjects which the public may want to know, either because these directly affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is of interest or importance, as it relates to or affects the public.[7]

The right, however, is not absolute. The right to information does not extend to matters recognized as privileged information under the separation of powers, information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, which courts have long recognized as confidential.[8] Trade secret is also an exception to the application of the constitutional right.[9] The right may also be subject to other limitations that Congress may impose by law.


In Chavez vs. PCGG[10] which involves a compromise agreement with the Marcos heirs, petitioner demands that respondents make public any and all negotiations and agreements pertaining to PCGG’s task of recovering the Marcoses’ ill-gotten wealth. The main issue posed by the case is: Does the right to information on matters of public concern include access to the terms of government negotiations prior to their consummation or conclusion? The Court ruled that considering the intent of the Constitution, it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the “exploratory” stage.

In Chavez vs. PEA[11] which involves a Joint Venture Agreement reached through negotiation without public bidding, petitioner prays that PEA publicly disclose the terms of any renegotiation of the JVA. The issue posted is: Does the constitutional right to information include official information on on-going negotiations before a final agreement? The Court disposed the case in this manner:

We must first distinguish between information the law on public bidding requires PEA to disclose publicly, and information the constitutional right to information requires PEA to release to the public. Before the consummation of the contract, PEA must, on its own and without demand from anyone, disclose to the public matters relating to the disposition of its property. These include the size, location, technical description and nature of the property being disposed of, the terms and conditions of the disposition, the parties qualified to bid, the minimum price and similar information. PEA must prepare all these data and disclose them to the public at the start of the disposition process, long before the consummation of the contract, because the Government Auditing Code requires public bidding. If PEA fails to make this disclosure, any citizen can demand from PEA this information at any time during the bidding process.

Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no “official acts, transactions, or decisions” on the bids or proposals. However, once the committee makes its official recommendation, there arises a “definite proposition” on the part of the government. From this moment, the public’s right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition.

The right to information “contemplates inclusion of negotiations leading to the consummation of the transaction.” Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.1âw

In Senate of the Philippines vs. Ermita[12] which involves E.O. 464 providing for the rule on executive privilege, petitioner questions the constitutionality of the order on the ground that it violates the right to information. The issue in the case is: Does E.O. 464 violates the right of the people to information? The Court ruled that E.O. 464 is invalid insofar as it allows the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. A claim of privilege, being a claim of exemption from an obligation to disclose information, must be clearly asserted. As U.S. v. Reynolds[13] teaches:

The privilege belongs to the government and must be asserted by it; it can neither be claimed nor waived by a private party. It is not to be lightly invoked. There must be a formal claim of privilege, lodged by the head of the department which has control over the matter, after actual personal consideration by that officer. The court itself must determine whether the circumstances are appropriate for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is designed to protect.

In Neri vs. Senate Committee on Accountability of Public Officers and Investigations[14] which involves the refusal of Neri to answer three questions regarding the NBN Project on the ground of executive privilege, the Court has been called upon to exercise its power of review and arbitrate a debated dispute between the Court’s co-equal branches of government. The issue in the case is: Did Petitioners’ refusal to answer the three questions curb the public’s right to information or diminish the importance of public accountability and transparency? The Court said that the privileged character of diplomatic negotiations has been recognized in this jurisdiction. Considering that the information sought through the three (3) questions involves the President’s dealings with a foreign nation, the Court is wary of approving the view that Congress may peremptorily inquire into not only official, documented acts of the President but even her confidential and informal discussions with her close advisors on the pretext that said questions serve some vague legislative need. It is easy to discern the danger that goes with the disclosure of the President’s communication with her advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product of the meeting of minds between officials of the Philippines and China. Whatever the President says about the agreement – particularly while official negotiations are ongoing – are matters which China will surely view with particular interest. It could adversely affect our diplomatic as well as economic relations with the People’s Republic of China.

In Akbayan Citizens Action Party vs. Aquino[15] which involves access to the full text of the Japan-Philippines Partnership Agreement including Japanese and Philippine offers in the course of the negotiation, petitioners asks the Court to require the respondents to disclose said diplomatic negotiations. The Court ruled that from the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and Japanese offers submitted during the negotiations towards its execution are matters of public concern. It is well-established in jurisprudence that neither the right to information nor the policy of full public disclosure is absolute, there being matters which, albeit of public concern or public interest, are recognized as privileged in nature. The privileged character of diplomatic negotiations has been recognized in this jurisdiction.

Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA may not be kept perpetually confidential – since there should be “ample opportunity for discussion before a treaty is approved” – the offers exchanged by the parties during the negotiations continue to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese representatives submitted their offers with the understanding that “historic confidentiality” would govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with Japan but with other foreign governments in future negotiations. A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would discourage future Philippine representatives from frankly expressing their views during negotiations.

In Garcia vs. Board of Investments[16] which involves the transfer of site of petrochemical complex from Bataan to Batangas, petitioner prays that his request from DTI for a copy of the amendment submitted by Taiwanese investors to their original application for the installation of the Bataan Petrochemical Plant, as well as the original application together with all attachments and the amendment thereto be granted. The issue in the case is: Can the BOI be ordered to publish investor’s application for registration, allow petitioner to have access to its records, and set for hearing Petitioner’s opposition? The Court ruled that the provision in the Investments Code requiring publication of the investor’s application for registration in the BOI is implicit recognition that the proposed investment or new industry is a matter of public concern on which the public has a right to be heard. And, when the BOI approved BPC’s application to establish its petrochemical plant in Limay, Bataan, the inhabitants of that province, particularly the affected community in Limay, and the petitioner herein as the duly elected representative of the Second District of Bataan acquired an interest in the project which they have a right to protect. Their interest in the establishment of the petrochemical plant in their midst is actual, real, and vital because it win affect not only their economic life but even the air they will breathe.

Hence, they have a right to be heard or “be consulted” on the proposal to transfer it to another site for the Investments Code does require that the “affected communities” should be consulted. In this case, what the petitioner seeks is for the Board of Investments to hold a hearing where he may present evidence in support of his opposition to the BPC’s amended application for registration (which amounts to a new application) since one of the effects of the amendment is to change the site of its petrochemical plant from Bataan to Batangas.

The petitioner’s request for xerox copies of documents may not be denied, as it is the constitutional right of a citizen to have access to information on matters of public concern under Article III, Section 7 of the 1987 Constitution. The confidentiality of the records on BPC’s applications is not absolute for Article 81 of the Omnibus Investments Code provides that they may be disclosed “upon the consent of the applicant, or on orders of a court of competent jurisdiction.’

In Valmonte vs. Belmonte[17] which involves members of Batasang Pambansa who were able to secure a clean loan through the intercession of Mrs. Marcos from GSIS, petitioner asked the Court that GSIS be compelled to furnish petitioner with the names of the said borrowers. The issue posted is: Can the GSIS refuse access to said documents on the ground of confidential relationship/privacy? The Court ruled that there can be no doubt that right to privacy is constitutionally protected. When the information requested from the government intrudes into the privacy of a citizen, a potential conflict between the rights to information and to privacy may arise. However, the competing interests of these rights need not be resolved in this case. The right to privacy belongs to the individual in his private capacity, and not to public and governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the GSIS.

Neither can the GSIS invoke the right to privacy of its borrowers. The right is purely personal in nature and hence may be invoked only by the person whose privacy is claimed to be violated. Even the concerned borrowers themselves may not succeed if they choose to invoke their right to privacy, considering the public offices they were holding at the time the loans were alleged to have been granted. It cannot be denied that because of the interest they generate and their newsworthiness, public figures, most especially those holding responsible positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their actions being subject to closer public scrutiny.

In Legaspi vs. Civil Service Commission[18] which involves civil service eligibility of certain persons employed as sanitarians, petitioner prays that the Civil Service Commission be ordered to disclose the eligibility of said employees. The Court ruled that while the manner of examining public records may be subject to reasonable regulation by the government agency in custody thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion.

In every case, the availability of access to a particular public record must be circumscribed by the nature of the information sought, i.e., (a) being of public concern or one that involves public interest, and, (b) not being exempted by law from the operation of the constitutional guarantee. The information sought by the petitioner in this case is the truth of the claim of certain government employees that they are civil service eligibles for the positions to which they were appointed. Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern of citizens to ensure that government positions requiring civil service eligibility are occupied only by persons who are eligibles. In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has failed to cite any provision in the Civil Service Law which would limit the petitioner’s right to know who are, and who are not, civil service eligibles. Hence, there is nothing secret about one’s civil service eligibility, if actually possessed.

In Gonzales vs. Narvasa[19], petitioner asks the Court to issue a writ of mandamus ordering Executive Secretary Zamora to answer his letter requesting for the names of executive officials holding multiple positions in government, copies of their appointments, and a list of the recipients of luxury vehicles seized by the Bureau of Customs and turned over to Malacanang. The Court ruled that Article III, Section 7 of the 1987 Constitution is a self-executory provision which can be invoked by any citizen before the courts. Respondent Zamora, in his official capacity as Executive Secretary, has a constitutional and statutory duty to answer petitioner’s letter dealing with matters which are unquestionably of public concern – that is, appointments made to public offices and the utilization of public property. With regard to petitioner’s request for copies of the appointment papers of certain officials, respondent Zamora is obliged to allow the inspection and copying of the same subject to the reasonable limitations required for the orderly conduct of official business. The Code of Conduct and Ethical Standards for Public Officials and Employees provides that, in the performance of their duties, all public officials and employees are obliged to respond to letters sent by the public within fifteen (15) working days from receipt thereof and to ensure the accessibility of all public documents for inspection by the public within reasonable working hours, subject to the reasonable claims of confidentiality.

In Baldoza vs. Dimaano[20] which involved dispute between municipal secretary and a municipal judge over access to criminal docket records, the Court ruled that the judge did not act arbitrarily in the premises because he allowed the complainant to open and view the docket books of respondent certain conditions and under his control and supervision. It has not been shown that the rules and conditions imposed by the respondent were unreasonable. The access to public records predicated on the right of the people to acquire information on matters of public concern. Undoubtedly in a democracy, the public has a legitimate interest in matters of social and political significance. The New Constitution now expressly recognizes that the people are entitled to information on matters of public concern and thus are expressly granted access to official records, as well as documents of official acts, or transactions, or decisions, subject to such limitations imposed by law.

In Air Philippines Corporation vs. Pennswell, Inc.[21] which involved a Motion to Compelrespondent to give a detailed list of the ingredients and chemical components of products, the Court ruled that the chemical composition, formulation, and ingredients of respondent’s special lubricants are trade secrets within the contemplation of the law.

A trade secret is defined as a plan or process, tool, mechanism or compound known only to its owner and those of his employees to whom it is necessary to confide it. The definition also extends to a secret formula or process not patented, but known only to certain individuals using it in compounding some article of trade having a commercial value. A trade secret may consist of any formula, pattern, device, or compilation of information that: (1) is used in one’s business; and (2) gives the employer an opportunity to obtain an advantage over competitors who do not possess the information. Generally, a trade secret is a process or device intended for continuous use in the operation of the business, for example, a machine or formula, but can be a price list or catalogue or specialized customer list. It is indubitable that trade secrets constitute proprietary rights. The inventor, discoverer, or possessor of a trade secret or similar innovation has rights therein which may be treated as property, and ordinarily an injunction will be granted to prevent the disclosure of the trade secret by one who obtained the information “in confidence” or through a “confidential relationship.”


The above stated constitutional provisions are also invoked against the government in relation to different provisions of domestic laws such as:

  1. Section 79 of the Government Auditing Code which reinforces the right of the people to be informed of the disposition of government property by requiring a public bidding.
  2. Section 5 (a) and (e) of R.A. 6713, otherwise known as the Code of Conduct and Ethical Standards for public officials and employees, in relation with Rule VI, Section 1 and Section 3 of its Implementing Rules, which obligates all public officials and employees to respond to letters sent by the public within fifteen (15) working days from receipt thereof and to ensure the accessibility of all public documents for inspection by the public within reasonable working hours, subject to the reasonable claims of confidentiality.
  3. Article 2, (2) of the Omnibus Investments Code mandates the holding of consultations with affected communities whenever necessary. Article 33 thereof requires that: whenever necessary, the Board, through the People’s Economic Councils, shall consult the communities affected on the acceptability of locating the registered enterprise within their community.
  4. Section 18, of R.A. 9904 otherwise known as An Act Providing for a Magna Carta for Home Owners and Home Owners’ Associations, which mandates LGUs to, upon due notice, hold public consultations with the members of the affected associations, especially their officers and directors, where proposed rules, zoning and other ordinances, projects and/or programs affecting their jurisdiction and surrounding vicinity are to be implemented prior to the effectivity or implementation of such rules, zoning, ordinances, projects or programs: Provided, That in cases of zonal reclassification, the approval of a simple majority of homeowners shall be required.
  5. Section 10(a) of R.A. 6658 otherwise known as An Act Creating the Cordillera Regional Consultative Commission, which mandates the commission to conduct public consultations and hearings at the district level and on regional basis, where the view and recommendations of various sectors, both governmental and non-governmental, shall be taken and recorded.
  6. Section 3 of R.A. 6727 otherwise known as the Wage Rationalization Act, which mandates the Regional Board, in the performance of its wage determining functions, to conduct public hearings/consultations, giving notices to employees’ and employers’ groups, provincial, city and municipal officials and other interested parties.
  7. R.A. 6649, otherwise known as An Act Creating the Regional Consultative Commission in Muslim Mindanao, which states that whenever a vacancy occurs in the Commission, the President may, upon the certification by the Chairman of the Commission, fill the vacancy by appointment, with the consent of the Commission on Appointments, after consultation with the group or sector represented by the member whose seat has become vacant[22] and that the Congress shall enact an organic act for the autonomous region in Muslim Mindanao with the assistance of the Regional Consultative Commission, and for this purpose: conduct public consultations and hearings at the district level and on regional basis, where the views and recommendation of various sectors, both governmental and non-governmental, shall be taken and recorded[23].
  8. Section 3(l) of R.A. 6939, otherwise known as Act Creating the Cooperative Development Authority, which states that the authority shall formulate and adopt continuing policy initiatives consultation with the cooperativesector through public hearing.
  9. Section 2, 4(b) of R.A. 8425, otherwise known as Social Reform and Poverty Alleviation Act, which declares that the Social Reform Agenda shall be enhanced by government in equal partnership with the different basic sectors through appropriate and meaningful consultations and participation in governance.
  10. R.A. 7279, otherwise known as the Urban Development and Housing Act of 1992, which declares that it is the policy of the State to undertake, in cooperation with the private sector, a comprehensive and continuing Urban Development and Housing Program which shall encourage more effective people’s participation in the urban development process[24] and that opportunities for adequate consultation shall be accorded to the private sector involved in socialized housing project[25].
  11. E.O. 226, otherwise known as the Omnibus Investments Code of 1987, which declares that the State shall encourage private Filipino and foreign investments in industry, agriculture, forestry, mining, tourism and other sectors of the economy which shall: provide significant employment opportunities relative to the amount of the capital being invested; increase productivity of the land, minerals, forestry, aquatic and other resources of the country, and improve utilization of the products thereof improve technical skills of the people employed in the enterprise; provide a foundation for the future development of the economy; meet the tests of international competitiveness; accelerate development of less developed regions of the country; and result in increased volume and value of exports for the economy[26]; that the State shall ensure holistic development by safeguarding the well-being of the social, cultural and ecological life of the people. For this purpose, consultation with affected communities will be conducted whenever necessary[27]; andthe Board of Investments, after consultation with the appropriate government agencies and the private sector, shall submit to the President an Investment Priorities Plan.[28]
  12. The Local Government Code, which states that it is the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate local government units, non-governmental and people’s organizations, and other concerned sectors of the community before any project or program is implemented in their respective jurisdictions[29]; the formulation and implementation of policies and measures on local autonomy shall be guided by the participation of the private sector in local governance, particularly in the delivery of basic services, shall be encouraged to ensure the viability of local autonomy as an alternative strategy for sustainable development[30]; the barangay development council shall exercise mobilize people’s participation in local development efforts[31];the sangguniang barangay, as the legislative body of the barangay, shall organize regular lectures, programs, or fora on community problems such as sanitation, nutrition, literacy, and drug abuse, and convene assemblies to encourage citizen participation in government[32]; the planning and development coordinator shall take charge of the planning and development office and shall promote people participation in development planning within the local government unit concerned[33]; the population officer shall establish and maintain an updated data bank for program operations, development planning and an educational program to ensure the people’s participation in and understanding of population development[34]; the Liga shall assist in the education of barangay residents for people’s participation in local government administration in order to promote united and concerted action to achieve country-wide development goals[35]; the league of municipalities[36], league of cities[37] and league of provinces[38] , shall encourage people’s participation in local government administration in order to promote united and concerted action for the attainment of country-wide development goals.
  13. Section 12 of R.A. 9147, otherwise known as An Act Providing for the Conservation and Protection of Wildlife Resources and their Habitats, which states that the proponent (introduction, reintroduction or restocking of endemic and indigenous wildlife) shall also conduct public consultations with concerned individuals or entities.
  14. R.A. 9275, otherwise known as An Act Providing for Comprehensive Water Quality Management, which provides that it shall be the policy of the State to promote public information and education and to encourage the participation of an informed and active public in water quality management and monitoring[39]; within twenty-four (24) months from the effectivity of this Act, and every two (2) years thereafter, the Department shall, through due public consultation, revise and publish a list of categories of industry sector for which effluent standards will be provided for each significant wastewater parameter per industry sector[40].
  15. R.A. 7844, otherwise known as the Export Development Act of 1994, which provides that the President of the Republic of the Philippines shall approve a rolling three-year Philippine Export Development Plan prepared by the Department of Trade and Industry (DTI) which shall form part of the medium -term Philippine Development Plan (MTPDP). It shall be formulated in consultation with the private sector, validated and updated semestrally; and that the PEDP shall define the country’s annual and medium-term export thrusts, strategies, programs and projects and shall be jointly implemented by the government, export and other concerned sectors.[41]
  16. R.A. 8371, otherwise known as the Indigenous Peoples Rights Act of 1997, which provides that The State shall take measures, with the participation of the ICCs/IPs concerned, to protect their rights and guarantee respect for their cultural integrity, and to ensure that members of the ICCs/IPs benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population[42]; that the State recognizes its obligations to respond to the strong expression of the ICCs/IPs for cultural integrity by assuring maximum ICC/IP participation in the direction of education, health, as well as other services of ICCs/IPs, in order to render such services more responsive to the needs and desires of these communities[43]; that the State shall take effective measures, in consultation with ICCs/IPs concerned, to eliminate prejudice and discrimination and to promote tolerance, understanding and good relations among ICCs/IPs and all segments of society[44]; that the ICCs/IPs shall have the right to stop or suspend, in accordance with this Act, any project that has not satisfied the requirement of this consultation process.
  17. Administrative Code of the Philippines, which provides that governmental power shall be exercised in accordance with the following basic principles and policies:

The right of the people and their organizations to effective and reasonable participation at all levels of social, political, and economic decision-making shall not be abridged. The State shall, by law, facilitate the establishment of adequate consultation mechanisms;[45]

that the State is committed to the care, protection, and rehabilitation of individuals, families and communities which have the least in life and need social welfare assistance and social work intervention to restore their normal functioning and enable them to participate in community affairs[46]; that it is recognized that the formulation of the required socio-economic development policies and plans is a vital process that calls for the participation of the various government agencies and private sector institutions and individuals concerned, both on national, regional, and local levels[47].

  1. Article 19 (2) of the International Covenant on Civil and Political Rights[48], which states that everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
  2. Executive Order 100, creating the Philippine Information Agency, which states that the PIA shall provide for free flow of accurate, timely and relevant information to assist people in decision making and identification of opportunities to improve quality of life[49] and to enable citizens to participate meaningful in the democratic processes[50].
  3. E.O. 608, Establishing a National Security Clearance System For Government Personnel with Access to Classified Matters, which commands all heads of government offices or agencies handling or having access to classified matters shall strictly implement and institutionalize the security clearance procedure approved by the Office of the National Security Adviser regarding the conduct of a comprehensive background investigation on their personnel who by reason of their duty or employment, have access to classified matters[51]. Its Implementing Rules and Regulations categorized[52]information as follows:
    1. Top Secret-Information and material (matter) the improper handling of which would cause exceptionally grave damage to the nation politically, economically, or from a security aspect. This category is reserved to the nation’s closest secrets and is to be used with great reserve.
    2. Secret-Information and material (matter) the unauthorized disclosure of which would endanger national security, cause serious injury to the interest or prestige of the nation or of any governmental activity or would be of great advantage to a foreign nation.
    3. Confidential- Information and material (matter) the unauthorized disclosure of which, while not endangering national security, would be prejudicial to the interest or prestige of the nation or any government activity, or would cause administrative embarrassment or unwarranted injury to an individual or would be of advantage to foreign nation.
    4. Restricted- Information or material (matter) which requires special protection other than that determined to be Top Secret, Secret, or Confidential.
  4. E.O. 464, Ensuring Observance of the Principle of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, which provides that:

SECTION 1. Appearance by Heads of Departments Before Congress. – In accordance with Article VI, Section 22 of the Constitution and to implement the Constitutional provisions on the separation of powers between co-equal branches of the government, all heads of departments of the Executive Branch of the government shall secure the consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the President so states in writing, the appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege. –

(a) Nature and Scope. – The rule of confidentiality based on executive privilege is fundamental to the operation of government and rooted in the separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees provides that Public Officials and Employees shall not use or divulge confidential or classified information officially known to them by reason of their office and not made available to the public to prejudice the public interest.

Executive privilege covers all confidential or classified information between the President and the public officers covered by this executive order, including:

Conversations and correspondence between the President and the public official covered by this executive order (Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002);

Military, diplomatic and other national security matters which in the interest of national security should not be divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of treaties and executive agreements (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9 December 1998);

Matters affecting national security and public order (Chavez v. Public Estates Authority, G.R. No. 133250, 9 July 2002).

[1] Gonzales vs. Narvasa, G.R. No. 140835, 14 August 2000

[2] Section 7, Article III, 1987 Constitution

[3] Gonzales vs. Narvasa, G.R. No. 140835, 14 August 2000

[4] Chavez vs. PEA, G.R. No. 133250, 9 July 2002

[5] 170 SCRA 256 (1989), cited in Chavez vs. PEA, supra

[6] Valmonte vs. Belmonte, G.R. No. 74930, 13 February 1989

[7]Akbayan vs. Aquino, G.R. No. 170516, 16 July 2008

[8] Chavez vs. PEA, G.R. No. 133250, 9 July 2002

[9] Air Philippines Corporation vs. Pennswell Inc., G.R. No. 172835, 13 December 2007

[10] G.R. No. 130716, 9 December 1998

[11] G.R. No. 133250, 9 July 2002

[12] G.R. Nos. 169777, 169659, 169660, 169667, 169834, and 171246, 20 April 2006

[13] 345 U.S. 1 , 73 S. Ct. 528, 97 L.Ed. 727, 32 A.L.R.2d 382 (1953), cited in Senate of the Philippines vs. Ermita

[14] G.R. No. 180643, 4 September 2008

[15] G.R. No. 170516, 16 July 2008

[16] G.R. No. 88637, 7 September 1989

[17] G.R. No. 74930, 13 February 1989

[18] G.R. No. L-721119, 29 May 1987

[19] G.R. No. 140835, 14 August 2000

[20] A.M. No. 1120-MJ, 5 May 1976

[21] G.R. No. 172835, 13 December 2007

[22] Section 8

[23] Section 10 (a)

[24] Section 2(e)

[25] Section 24

[26] Article 2 (1)

[27] Article 2 (2)

[28] Article 27

[29] Section 2(c)

[30] Section 3 (1)

[31] Section 109, b(1)

[32] Section 391 (17)

[33] Section 476 b(7)

[34] Section 488 b(3) (ii)

[35] Section 495 (b)

[36] Section 498 (d)

[37] Section 501 (d)

[38] Section 504 (d)

[39] Section 2 (h)

[40] Section 12

[41] Article II, Section 5

[42] Section 2 (e)

[43] Section 2 (f)

[44] Section 31

[45] Section 1 (7)

[46]Book IV, Title XVI, Chapter 1, Section 1

[47]Book V, Title II, Subtitle C, Chapter 1, Section 1

[48] signed by the Philippines on 19 December 1966

[49] Section 2 (1)

[50] Section 2 (2)

[51] Section 1 (a)

[52] Rule IV, Section III

A Review of Philippine Laws and Cases On Access to Information and Peoples’ Participation

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