FOI Practice of the Action for Economic Reforms on the Implementation of the TRAIN Law’s Social Mitigating Measures
I. Organizational Profile
Action for Economic Reforms (AER) is a public-interest organization that conducts policy analysis and advocacy on key macroeconomic and governance issues. Access to relevant and timely data that can be easily managed and used for analysis is a critical tool in its work. Together with transparency (FOI Program), industrial policy and fiscal policy constitute AER’s flagship programs.
AER supported the passage of the Tax Reform for Acceleration and Inclusion (TRAIN) Law, in line with its advocacy for a fairer tax system. Recognizing that the law is not perfect, mindful of the transitory issues, and aware that implementation is critical, AER enrolled in the R2KRN FOI Practice Round 4 the monitoring of the revenues generated and social mitigating measures under TRAIN.
The FOI Practice is meant to demonstrate that succesful tax reform does not end with legislation, and that conscientious implementation is one of the pathways for greater understanding and acceptability of the reform. Response of target agencies will also showcase how they coordinate with each other, how seriously they treat specific provisions of the law, and will check how efficiently they perform their mandate.
II. Context for the Information Request
In December 2017, Republic Act No. 10963 (the TRAIN Law) was signed. It was the first of a series of tax-reform packages being pushed by the government. TRAIN aims to correct weaknesses in the country’s tax system, and make it simpler, more efficient, and progressive. It is expected to generate additional revenues for government. Seventy percent of the incremental revenues from TRAIN are earmarked for the Build, Build, Build Program to boost the country’s infrastructure. Included in this tax-reform package are:
III. Results
AER used email, the eFOI portal, fax, phone calls, and personal visits to send and follow up FOI requests. The eFOI portal is the website created by the Philippine Communications Operations Office (PCOO) where FOI requests to different agencies can be lodged. Requesters are encouraged to use the eFOI portal for the speedy processing of their requests. In actual practice, however, agencies follow different protocols in receiving requests. Some still prefer emails or personal visits. Table 2 summarizes AER’s FOI requests done through different modes. Multiple entries for agencies indicate multiple and separate requests. In case of a referral, a new request is given as a new entry. Table 3 provides a list of FOI Receiving Officers (FRO) and other agency officials engaged in the FOI Practice.
AER filed 14 requests to 10 agencies, and made a total of 156 contacts: 75 phone calls, 58 emails, 21 eFOI requests, and two personal visits.
On a per request basis, NFA required the most number of contacts (12 phone calls, 10 emails and three eFOI filings). BIR came in second, requiring 16 contacts (10 phone calls, five emails and one eFOI filing). DBM and LTFB tied on third, requiring 15 contacts (DBM: seven phone calls, six emails and two eFOI filings; LTFRB: eight phone calls, three emails, three eFOI filings and one personal visit).
Lack of clarity or awareness on who were responsible for receiving and processing FOI requests resulted in many referrals and redirection of phone calls and emails, especially in the NFA, BIR, and LTFRB. Related problems were non-working emails (NFA) and absence of contact information for the FRO (BIR).
Non-working (LTFRB) or incorrect (DOF) published phone numbers resulted in the need to go direct to specific offices (DOF) or for personal visits (LTFRB). In a few instances, phones were kept ringing, or when picked up, the responsible officers were not around (and nobody would take the request, and the requester was just asked to call again).
Inadequate email disk space has also been cited for un-received and un-acknowledged emails (BIR). Some emails were not properly transmitted to the FRO (TESDA).
Response time to eFOI filings was mixed. DBM, DOF, and DSWD were fast. NFA took one month to respond, while SRA, LTFRB, TESDA, and BIR did not respond at all. AER was able to engage these agencies through phone calls, emails, and personal visits, but they have not engaged the group in the eFOI portal.
Of the different modes of engagement, the two personal visits were most unpleasant. Requesters felt unattended, while the officer went in and out of the room, minding other matters. Moreover, upon follow-up, a hand-delivered request was denied as being submitted, despite a signed receiving copy.
In the end, it is the outcome, shown in Table 4, that matters most.
AER filed 14 requests to 10 agencies, and made a total of 156 contacts: 75 phone calls, 58 emails, 21 eFOI requests, and two personal visits.
On a per request basis, NFA required the most number of contacts (12 phone calls, 10 emails and three eFOI filings). BIR came in second, requiring 16 contacts (10 phone calls, five emails and one eFOI filing). DBM and LTFB tied on third, requiring 15 contacts (DBM: seven phone calls, six emails and two eFOI filings; LTFRB: eight phone calls, three emails, three eFOI filings and one personal visit).
Lack of clarity or awareness on who were responsible for receiving and processing FOI requests resulted in many referrals and redirection of phone calls and emails, especially in the NFA, BIR, and LTFRB. Related problems were non-working emails (NFA) and absence of contact information for the FRO (BIR).
Non-working (LTFRB) or incorrect (DOF) published phone numbers resulted in the need to go direct to specific offices (DOF) or for personal visits (LTFRB). In a few instances, phones were kept ringing, or when picked up, the responsible officers were not around (and nobody would take the request, and the requester was just asked to call again).
Inadequate email disk space has also been cited for un-received and un-acknowledged emails (BIR). Some emails were not properly transmitted to the FRO (TESDA).
Response time to eFOI filings was mixed. DBM, DOF, and DSWD were fast. NFA took one month to respond, while SRA, LTFRB, TESDA, and BIR did not respond at all. AER was able to engage these agencies through phone calls, emails, and personal visits, but they have not engaged the group in the eFOI portal.
Of the different modes of engagement, the two personal visits were most unpleasant. Requesters felt unattended, while the officer went in and out of the room, minding other matters. Moreover, upon follow-up, a hand-delivered request was denied as being submitted, despite a signed receiving copy.
In the end, it is the outcome, shown in Table 4, that matters most.
Almost two-thirds of AER’s 14 FOI requests were unsuccessful. Only five were either partially (three) or completely successful (two), while the rest were unsuccessful (eight were pending including one referral, and one was denied and still under appeal). The successful requests all breached the 15-working day period for response. DSWD was the quickest to (partially) release information at 17 working days. Denied requests and referrals were within the prescribed period (three to 12 days). As of this writing, some requests have been pending for as long as 68 working days. Not one of the agencies (including those that released information late) issued a notice of extension.
The requests that required most contact (NFA, BIR, DBM and LTFRB) were 75 percent unsuccessful, with only NFA partially releasing the requested information.
Of the two denials (one full, one partial), AER chose to appeal the partial denial by DSWD. The appeal clarified the request related to the 2018 UCT and the 2019 budget for UCT. DSWD released the information on UCT, but only covering the UCT targets per region and not actual distribution, and have yet to send details of the 2019 allocations.
Does AER have enough information to draw a picture of how TRAIN is faring in terms of revenues and mitigating measures?
Based on retrieved documents and experience from the FOI Practice, information from agency websites, and news reports, some elements of this picture include:
• There is confusion as to which agency is responsible for keeping records of the inter-agency committee on social mitigating measures. The FOI Request to DBM was referred to DOF, which referred the request back to DBM. No document from the request or from the website was generated, and there were no news reports to get leads from.
o A Joint Memorandum Circular (JMC No. 1 s. 2018) on the general guidelines on the implementation of the social welfare and benefits programs under TRAIN was issued by DBM, DOF and DSWD only in August 2018.
• In February 2018, DSWD promulgated the implementing rules and regulations (IRR) for the UCT program, outlining its procedures, management, and timeline. Based on this, distribution of UCT should have been completed by August 2018. DSWD only released a document on UCT targets per region, and not of actual distribution, which is not enough to make a determination of how well the program is being implemented. There are also no details yet on how much allocation the program will get for 2019. The IRR says that distribution of the UCT in 2019 and 2020 shall be completed within the first quarter.
o In different months, some regional news reports would carry detailed updates from the some regional DSWD offices (Bicol, Caraga, Central Visayas, Socksargen). National news would quote figures and updates from congressional and Senate hearings.
• The LTFRB website and Facebook page carry information on the process for accessing the PantawidPasada and the deadlines for claiming the subsidy (only FB page has this information). The master list of eligible accounts is published in the LTFRB website, but there are no updates/details on how much and where the actual availment has been.
o There were news reports, quoting government officials, on supposed extent of distribution of the fuel subsidy. However, as no official record can be accessed, it is difficult to verify the reports.
• NFA issued guidelines for the TRAIN Rice Distribution Program. JMC No. 1 s. 2018 also has provisions on subsidized NFA rice.
o While doing the FOI Practice, NFA staff said that that because NFA rice is already highly subsidized, the additional 10-percent discount mandated in TRAIN will not be implemented anymore. This is a misleading statement. According to the JMC, what in fact will be given is more than what TRAIN requires. This subsidy (for 20 kilograms per month) is available to 2.6 million UCT household beneficiaries and senior pensioners.
• The DPWH budget is available on its website. As the 2019 budget is not yet available, it remains to be seen how the agency will reflect incremental allocations from TRAIN earmarks.
• There was no official document accessed on the breakdown of incremental revenues from TRAIN to show whether or not it is meeting its target. Absent the official data, it is not possible to check the accuracy of news reports on this.
IV. Insights
While much of the problems encountered are still procedural, AER also flags several substantive issues.
Poor communication infrastructure. Non-functioning phones and email addresses, low email storage capacity, and irregular checking of email (including forwards from the eFOI portal) not only hampers the FOI program, but slows down overall public service. Some agencies that give central contact details (email address, phone/fax numbers, websites) sometimes do not have the capacity to route requests or queries. While this is not something that afflicts all agencies, it is jarring that it burdens some of key frontline agencies like LTFB and NFA.
The eFOI portal provides a more accessible way to lodge requests, but not all government agencies respond through the platform. This again indicates poor routing capacity, and/or the lack of dedicated personnel to check the platform (or the central email, for that matter). In any case, traditional request modes are still important, which makes the quality of traditional communication devices a primary consideration.
Low awareness of FOI procedures; low information consciousness. Two years since EO No. 2, some agencies still grapple with the FOI program, with their FROs in need of capacity building or are yet to be assigned. This may be understandable as government programs tend to have long gestation periods. Of greater concern is the persistent low consciousness of where a specific piece of information is and who is responsible for it. This betrays government personnel’s lack of appreciation of who is doing what, and what information is generated where, or perhaps simply a case of nobody wanting to take responsibility. This results in frequent redirection and referrals, which could frustrate requesters.
Breach of FOI request timeline.The 15-day response period is habitually violated. Extensions are done de-facto, and without formal notice. Rare occasions of appeal also get ignored. All these are closely linked to the two previous issues. It also points to poor client orientation of government offices.
Quality of information received. Most of those marked “successful” or “partially successful” requests involved being directed to the agencies’ websites. However, not all were able to give exact instructions or links; some just directed requesters to the general website. Some older datasets are also not found on the websites – quick checks with the Philippine Statistics Authority’s website also yielded negative results, raising questions on how and where older information is stored.
Document format is also an issue. Some documents are available only as images.
Special channels/access. Beyond the FOI Practice, and rooting out what may be weaknesses in the implementation of the FOI program, getting hold of the documents and information is primary for requesters. Since AER needs the documents to inform its work better, it sent a special request to DOF, through Undersecretary Karl Chua, for the TRAIN-related data. R2KRN made a separate request, on behalf of all Practice Teams, to PCOO, through Assistant Secretary Kris Ablan, for all the pending or problematic requests. Both offices promptly acknowledged the requests, and nudged the offices concerned. The hope is that such special access can help expedite FOI requests.
Having special access, whether through prior engagement or personal ties, to government offices facilitates service delivery. Such access sometimes provides shortcuts to procedures or help direct requesters to the proper offices. But special channels are not always available, and it certainly is not available to everyone. Citizens should be able to expect a minimum standard of service without need for special access.
Poor coordination and accountability? Lack of clarity on what unit or which personnel should have certain information exposes a deeper problem in governance. It can be symptomatic of poor coordination. When it happens in relation to a policy that has wide-ranging effects, including the further marginalization of already poor segments of the population, it can be taken as a disregard for accountability. It diminishes the effectivity of policies and threatens their acceptability. Citizens will not always take government’s word that a policy will benefit them; they have to see for themselves. Unless information is freely available, in a timely manner, there will always be doubt.
V. Recommendations
• Create permanent positions for FOI in every agency, integrating critical information and communication concerns. To raise the profile of and properly implement the program, an FOI officer at the Director level might be necessary, supported by permanent positions for the FRO. This office shall be responsible for preparing the agency information map, and training the personnel on handling information and carrying out the FOI program.
• Address gaps in information and communication infrastructure and knowledge of various platforms (including eFOI). This includes proper information handling and storage (archiving).
• Proactively disclose information related to issues of most interest to the public (e.g. TRAIN, BBB, China agreements).
• Put more teeth to the FOI program by passing the FOI Law.