FOI Practice Report from the Ateneo Policy Center (APC)
I. Organizational Profile
Established in 1996, the Ateneo School of Government boasts 20 years of experience in delivering leading-edge policy research and in promoting good-governance reforms. The School’s programs have made significant contributions in advancing discussion for policy reforms and innovative solutions that strengthen key democratic institutions like elections, political parties, legislature, bureaucracy, and accountability mechanisms. In 2017, amidst efforts to respond more effectively to emerging political, economic, and social issues, the Ateneo Policy Center (APC) was established to serve as the School’s dedicated research and public policy unit. The APC’s present engagements include work in advancing Inclusive Economies, Inclusive Democracies, and Inclusive Societies.
Throughout 2018, the APC has been undertaking a monitoring initiative of the Duterte administration’s ambitious PhP 8.4-trillion Build, Build, Build (BBB) infrastructure program. The initiative aims to examine the governance processes of the administration in the planning, procurement, and implementation of Build, Build, Build projects (both flagship and non-flagship), and has also involved an assessment of its progress on the transparency, accountability, and anti-corruption fronts. The aim of the research is to provide a scoping as well as an evidence-based assessment of the emerging issues in infrastructure and public-works planning and procurement amidst BBB’s implementation.
II. Context for the Information Request
Significant steps toward improving government transparency in infrastructure have unfolded under the current administration of President Rodrigo R. Duterte. Within his first month of assuming office, President Duterte signed Executive Order no. 2 (s. 2016), which mandated freedom of information for agencies under the executive branch, including agencies involved in infrastructure governance and development. As part of this effort, an electronic freedom of information (e-FOI) portal (http://www.foi.gov.ph) was also launched in November 2016 to facilitate easier information requests by the public. More recently, in April 2017, several government agencies publicly unveiled the Philippine Infrastructure Transparency Portal (http://www.build.gov.ph), to proactively share information concerning the flagship ventures of the BBB program. The National Economic Development Authority (NEDA) also releases specific updates on the 75 flagship infrastructure projects in its website.
Despite these commendable initiatives, the administration’s transparency drive has not eluded challenges. While cabinet members have provided assurance on their willingness to provide information on infrastructure projects, several government agencies have not been as forthcoming in providing information as expected. With regards to proactive disclosure measures, a cursory survey of the Philippine Infrastructure Transparency Portal reveals only limited coverage of BBB projects (with information for only 61 ventures in total, including 21 flagship projects, showcased as of August 2018). On a similar note, requests for information access on BBB projects can likewise be restricted on the basis of legal limitations, such as those expressed in the FOI executive order. These exceptions to the access of information have been enumerated in a November 2016 memorandum to all government agencies, which includes information deemed to be confidential, such as “trade secrets, intellectual property, business, commercial, financial, and other proprietary information,” as well as “documents submitted through the Government Electronic Procurement System.” Throughout 2017, several FOI requests related to BBB and its priority projects have reportedly not been met for reasons ranging from the unavailability of such information online to confidentiality grounds .
The potential risks posed by a lack of transparency in the BBB program are well-known. An infrastructure transparency deficit could obscure procedural weaknesses and potential rent-seeking dynamics in the conceptualization, selection, planning, procurement, and implementation of both large-scale and small-scale infrastructure projects— the ultimate costs of which will be borne by Filipino taxpayers. At minimum, a lack of full disclosure is bound to inhibit proper understanding and deliberation among the public of the true benefits, costs, and risks of projects. Even from the government’s perspective, such discussions are best had prior to the execution of infrastructure ventures, to ensure stronger buy-in, greater financial sustainability, and clarity on the measures needed to mitigate and equitably distribute the long-term burdens of such projects on the public.
Target Government Institutions and Specific Information/Documents Requested
To better assess the quality of infrastructure transparency in the Duterte administration, a total of 55 requests were lodged through the e-FOI portal, between June 26 and July 24, 2018, for copies of the feasibility studies of 48 flagship infrastructure projects that NEDA listed as having complete feasibility studies as of its June 13, 2018 update . Feasibility studies were focused upon specifically by the APC team, given the importance of such studies to determining the costs, benefits, risks, and overall viability of proposed infrastructure projects. Presently, according to NEDA operations manuals , full feasibility studies are a mandatory documentary requirement for the evaluation of major infrastructure projects by the NEDA Investment Coordinating Committee.
These 48 projects listed as having completed feasibility studies spanned eight different government agencies: (1) the Bases Conversion and Development Authority (BCDA), (2) the Department of Transportation (DOTr), (3) the Department of Agriculture (DA), (4) the Philippine Fisheries Development Authority of the Department of Agriculture (DA/PFDA), (5) the Philippine Ports Authority (PPA), (6) the Department of Public Works and Highways (DPWH), (7) the National Irrigation Authority (NIA), (8) the Metropolitan Waterworks and Sewerage System (MWSS), (8) and the National Power Corporation (NAPOCOR). Table 1 lists down the specific projects as well as the implementing agencies affiliated with them in the NEDA update.
III. Results
Out of the 55 requests lodged through the e-FOI portal, only 26 were duly received by the FOI Receiving Offices (RO) of pertinent IAs within the 15 business days prescribed by the FOI executive order. Out of the 26 requests, 10 were marked ‘successful’ by the agencies requested. One other request was marked as ‘partially successful.’
Meanwhile, 15 requests were denied by the receiving agencies, nine of which were turned down within the 15-day period, and the remaining six done belatedly. Six of these requests were denied because the agencies in question (i.e. the DA, DOTr, PPA, and CPA) referred the FOI requests to a different IA, even if they had been identified by NEDA or other agencies as the entity responsible for the listed projects (see Table 2). Another six projects under the DOTr were also denied, following a review of the said agency’s legal department on trade secrecy grounds for projects that have not yet been awarded, the full response for which is provided for in Annex III. Finally, three other denied information requests concerned the Kaliwa Dam project (for which APC was asked to contact MWSS directly outside the e-FOI portal), and the Pulangi 4 Selective Dredging Phase 3 project (for which APC was first requested via a formal request letter, which was afterward denied on the reported unavailability of the document in question).
In a number of requests, the respective implementing agencies of each project were also contacted through telephone for follow-up purposes. Indeed, this was especially necessary in the case of three agencies (i.e. DA-PFDA, NIA, and MWSS) who reported not having access to their e-FOI portals, and thus were or could not taking action in response to respective e-FOI requests within the 15-day period. Additionally, two agencies asked for a formal request letter aside from the e-FOI request — but even filing a request letter did not automatically translate to an approved request.
All told, of the 48 projects access to the feasibility studies requested were granted in only seven instances— with only one, moreover, involving the actual provision of a digital file of the feasibility study by the IA in question. For two projects under the BCDA, an in-house viewing of the feasibility studies was granted due to confidentiality concerns cited by the said agency; meanwhile, access to the studies of four other airport projects handled by DOTr required visiting the said Department’s office in Clark, Pampanga, as only hard copies were reported to be available. Table 3 presents the roster of these successful requests.The request log and details of problems encountered with the remaining requests is shown in Annexes I and II respectively.
IV. Insights
Despite the promise of ease of access to documents through the e-FOI portal, various feasibility study requests still suffered from bureaucratic obstacles and legal limitations. Out of the 55 requests made, 29 were not acted upon by project IAs within the 15 working-day period prescribed by Executive Order No. 2. Of these 29, 18 e-FOI requests— all submitted to the Department of Public Works and Highways (DPWH)— were accepted by the department beyond the 15 working-day period. No further action on the request has been undertaken by the DPWH on the requests up until the time of writing (i.e. November 12, 2018). Another seven requests were accepted by the agencies within the 15 working-day period, but were not approved or denied within the same time frame.
The results reveal a clear disparity in the responsiveness and service quality among agencies in the e-FOI portal. Some agencies stand out as prompt and effective in accepting and reviewing the requests— particularly the BCDA and the DOTr, who together accounted for the seven cases in which potential access to project feasibility studies were granted— whereas others, such as the DPWH, were much more sluggish in acting on the requests.
Unevenness was not only evident across different agencies, but could also be witnessed in different divisions within the same agencies. For example, the DOTr, which had been quite prompt in accepting e-FOI requests, was not as consistent in approving or denying the requests within the 15 working-day period. On one hand, the DOTR Air Transport Planning Division demonstrated a high level of responsiveness in approving requests under their jurisdiction. On the other hand, requests on projects of the Philippine National Railways and the Metro Manila Bus Rapid Transits , which are also under DOTr jurisdiction, were denied outside the prescribed time period.
Providing the data has come with other symptoms of uneven service quality— particularly with handling confidentiality concerns. Citing confidentiality concerns, BCDA allowed a limited in-house viewing for two of its projects’ feasibility studies . Yet other IAs have used confidentiality as reason to completely deny access to their feasibility studies. This was specifically the case with numerous projects under different divisions of the DOTr, for which the access to feasibility studies were denied on trade secrecy grounds following a legal review. On a similar note, the feasibility study for the DOTr’s Mindanao Railway Project was not shared on the basis of the confidentiality of the project’s ongoing bidding process.
Other denials of requests seem to have resulted mainly from coordination issues between agencies, as well as between agencies and their e-FOI portals. In one project, the New Cebu International Container Port, neither the DOTr, the PPA, and the CPA appeared to have clarity on which specific government office was supposed to have been the ultimate recipient agency for the request. Meantime, several government agencies such as the DA-PFDA, the MWSS, and the NIA, seemed to have had no access whatsoever to their e-FOI portals, and up to the present have left requests for feasibility studies unheeded in the e-FOI website . Coupled with major gaps in the project coverage of the Philippine Infrastructure Transparency Portal, such situations have been indicative of coordination failures between infrastructure-related agencies and the transparency mechanisms established under the present administration.
Positive experiences with the BCDA and the DOTr Air Transport Division aside, these trends in documentary requests concerning the administration’s flagship infrastructure projects are not encouraging. While the establishment of the e-FOI portal has increased the convenience of making information/document access requests, major hurdles remain in accessing critical documents for ascertaining the viability and integrity of flagship BBB projects. With the feasibility studies for most of these projects remaining out of reach, it is possible to imagine increased chances for avoidable flaws to remain in the development and design of these projects, which heightened public access to information could help minimize. Indeed, recent scandals in various agencies— e.g. Department of Tourism, Department of Justice, the Bureau of Customs, the National Food Authority—further underscores the urgency of more robust transparency measures.
V. Recommendations
In the medium term, the FOI executive order of the Duterte administration must be expanded into a full-fledged FOI law, which will cover not only the national executive branch, but also the legislature, local government units, and the judiciary, to further expand and strengthen citizen’s access to key public documents concerning infrastructure projects. In the shorter term, however, the following recommendations are advanced to better ensure that a “golden age of transparency” can parallel the administration’s vaunted “golden age of infrastructure.”
● Discrepancies and gaps in public information portals need to be streamlined into a single authoritative database, compared to the fragmented, and occasionally conflicting set-up across multiple government agencies. While such a database can be a multi-agency initiative (as with the BBB Portal), a designated lead agency with expertise in infrastructure-project formulation and/or implementation, should have the final say on public information shared concerning projects so as to promote coherence and consistency in released data.
● Building upon the BCDA’s practice of allowing in-house viewing of documents marked as confidential, other agencies and offices of government should explore middle-ground options that respect such confidentiality concerns, while nonetheless enabling greater public access to key data and information. The formulation of a set of guidelines in handling and publicizing such confidential data and documents can help standardize some degree of disclosure across the various infrastructure-related agencies.
● While the Government Procurement Reform Act(R.A. 9184) enables participation and monitoring of public procurement processes, including for infrastructure and public works development, opportunities for citizen participation and monitoring appear to still be sparse at the planning and pre-bidding stage of project formulation and development. In this regard, it is recommended that public hearings and consultations with qualified representatives from civil society, the academe, and other relevant sectors for the conducting of needs and risks assessments, feasibility studies, and environmental and social impact studies, among others, be made part and parcel of infrastructure development procedures. Similarly, the celebrated practice of Citizen’s Participatory Audits for public works and infrastructure projects can likewise be extended to the assessment of Feasibility Studies and other key project formulation documents by qualified representatives from outside the public sector. — Ateneo Policy Center, Right to Know, Right Now! Coalition, December 2018
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Prepared by Jerik Cruz, Economist of the Ateneo Policy Center (APC), as well as Miguel Enriquez, an APC intern, during the information request period for this practice effort. Any errors are solely those of the authors. The views and conclusions of the paper do not necessarily reflect those of the Ateneo School of Government or the Ateneo de Manila University.
This report’s content is condensed and adapted from a forthcoming working paper of the Ateneo Policy Center, “Governing the ‘Golden Age of Infrastructure’: Build, Build, Build from an Accountability Perspective.” We invite readers to visit http://www.ateneo.edu/aps/asog/research_and_publications/research_materials/working_paper_series in late December 2018 for a copy of this forthcoming paper.