Legal basis and updating mechanism
- Section 4 of Executive Order No. 02 (s. 2016) requires the Department of Justice (DOJ) and the Office of the Solicitor General (OSG) to update the Inventory of Exceptions as the need arises, while directing the Office of the President (OP) to accordingly reflect the updates.
- Memorandum Circular No. 49 (s. 2018) created the Inter-Agency Freedom of Information Exceptions Policy Committee (IA-FOI-EPC).
- Memorandum Circular No. 49 (s. 2018) places DOJ and OSG as co-chairs of the IA-FOI-EPC to review and periodically update the Inventory of Exceptions to reflect changes in laws and jurisprudence.
- Memorandum Circular No. 89 (c. 2021) circularized the updated Inventory of Exceptions.
- IA-FOI-EPC Resolution Nos. 2021-002 and 2022-001 proposed further updates adopted for circularization here.
Policy, purpose, and guidance
- The circular recognizes exceptions to the right of access to information that are recognized by the Constitution, existing laws, or jurisprudence.
- The circular requires that in evaluating requests for information, all heads of offices must ensure the meaningful exercise of the public’s right to access to information on public concerns.
- The circular states that the listed exceptions are without prejudice to existing laws, jurisprudence, rules, and regulations that authorize disclosure of excepted information upon satisfaction of specified conditions, such as consent of the concerned party or as ordered by the courts.
Core exception categories (inventory)
- Executive privilege covers exceptions to the right to access information, including:
- Presidential conversations, correspondences, and discussions in closed-door Cabinet meetings.
- Deliberative process privilege, including:
- advisory opinions, recommendations, resolutions, minutes of meetings, and deliberations comprising part of governmental decision- and policy-formulation;
- intra-agency or inter-agency recommendations or communications during stages when assertions are still being formulated or are exploratory; or information pertaining to decision-making of executive officials; and
- information, record, or document comprising drafts of decisions, orders, rulings, policy decisions, memoranda, and similar materials.
- Privileged information relating to national security, defense or international relations is an exception when it involves:
- information that must be kept secret in the interest of national defense or security;
- diplomatic negotiations and other information required to be kept secret in the conduct of foreign affairs; or
- patent applications where publication would prejudice national security and interests.
- Information concerning law enforcement and protection of public and personal safety is an exception when disclosure would:
- interfere with enforcement proceedings;
- deprive a person of a right to a fair trial or impartial adjudication;
- disclose the identity of a confidential source (and, for records compiled during criminal investigation or lawful national security intelligence investigation, confidential information furnished only by the confidential source);
- unjustifiably disclose investigative techniques and procedures;
- involve informer's privilege or the Government’s privilege not to disclose the identity of persons who furnish information of violations of law to law-enforcement officers;
- put an individual’s life and safety in imminent danger;
- involve information given by informants leading to recovery of carnapped vehicles and apprehension of persons charged with carnapping; or
- involve all proceedings involving application for admission into the Witness Protection Program and action taken thereon.
- Information deemed confidential for the protection of privacy of persons (including minors, victims of crimes, and the accused) is an exception when it falls under the privacy and confidentiality categories detailed in the circular.
- Information, documents, or records deemed confidential due to official capacity are exceptions, including those submitted or disclosed to government agencies, tribunals, boards, or officers in relation to their functions or inquiries/investigations conducted through administrative, regulatory, or quasi-judicial powers, including:
- trade secrets, intellectual property, business, commercial, financial, and other proprietary information;
- data furnished to statistical inquiries, surveys and censuses of the Philippine Statistics Authority;
- records and reports submitted to the Social Security System by the employer or member;
- information of registered persons with the Philippine Identification System;
- information gathered for the HIV and AIDS monitoring and evaluation program under RA No. 11166 and related health intelligence activities;
- confidential information submitted to the Philippine Competition Commission prohibited from disclosure by law, including the identity of the anonymous person who provided it;
- applications and supporting documents filed pursuant to the Omnibus Investments Code of 1987;
- documents submitted through the Government Electronic Procurement System;
- information obtained from accessing any electronic key, electronic data message, or electronic document book, register, correspondence, information, or other material under powers conferred by the Electronic Commerce Act of 2000;
- confidential information supplied by contractors in mineral agreements and financial or technical assistance agreements under the Philippine Mining Act of 1995 and its IRR during the project term;
- information received by the Department of Tourism related to accreditation of accommodation establishments and travel and tour agencies;
- the fact that a covered transaction report to the Anti-Money Laundering Council (AMLC) has been made, its contents, or any related information;
- information submitted to the Tariff Commission that is confidential or submitted on a confidential basis;
- certain information and reports submitted to the Insurance Commissioner pursuant to the Insurance Code;
- information on registered cultural properties owned by private individuals;
- data submitted by a higher education institution to the Commission on Higher Education (CHED);
- secret, valuable, or proprietary information of a confidential character known to a public officer, or secrets of private individuals;
- records or information connected with any investigation by the Presidential Anti-Corruption Commission (PACC) when disclosure would deprive the respondent of the right to fair and impartial investigation; and
- records of surveillance of suspects and interception and recording of communications acquired by law enforcement agent or military personnel pursuant to the Anti-terrorism Act of 2020.
- Prejudicial premature disclosure is an exception when premature disclosure would:
- in the case of agencies regulating currencies, securities, commodities, or financial institutions, likely lead to significant financial speculation in currencies, securities, or commodities, or significantly endanger the stability of a financial institution; or
- be likely or significantly frustrate implementation of a proposed official action,
- except where the agency already disclosed to the public the content or nature of its proposed action, or where required by law to disclose on its own initiative before final official action.
- Records of proceedings or information from proceedings treated as confidential or privileged by law or relevant rules are exceptions, including:
- mediation and domestic or international arbitration proceedings, including records, evidence, and arbitral awards, under the Alternative Dispute Resolution Act of 2004;
- matters involved in an Investor-State mediation;
- statements made at conciliation proceedings under the Labor Code;
- arbitration proceedings before the Construction Industry Arbitration Commission (CIAC);
- results of examinations by the Securities and Exchange Commission (SEC) on corporate operations, books, records, and related interrogatories and answers;
- information related to investigations deemed confidential under the Securities Regulations Code;
- proceedings prior to issuance of a cease and desist order against pre-need companies by the Insurance Commission;
- information related to assignment of cases to reviewing prosecutors or undersecretaries in violations of the Comprehensive Dangerous Drugs Act of 2002;
- investigation report and supervision history of a probationer;
- matters classified as confidential under the Anti-Terrorism Act of 2020 and its IRR;
- preliminary investigation proceedings before committees on decorum and investigation of government agencies;
- investigation proceedings and records during preliminary investigation in civil service administrative cases;
- matters deemed confidential or privileged by Supreme Court rules, such as disbarment proceedings, DNA profiles and results, or court-ordered confidentiality; and
- information on bank inquiry orders issued by the Court of Appeals, including contents and receipt.
- Banking and finance confidentiality is an exception, including information protected under:
- RA No. 1405 (Law on Secrecy of Bank Deposits);
- RA No. 6426 (Foreign Currency Deposit Act of the Philippines) and relevant regulations;
- RA No. 8791 (General Banking Law of 2000);
- RA No. 9160 (Anti-Money Laundering Act of 2001), as amended by RA No. 11521;
- RA No. 9510 (Credit Information System Act); and
- RA No. 245, as amended by Presidential Decree No. 1878.
- Other exceptions are recognized when confidentiality arises from treaties, executive agreements, other international agreements, international proceedings, or specific privileges and restrictions, including:
- treaty-based confidentiality affecting investor-states where disclosure would prejudice legitimate commercial interest or competitive position under investment agreements;
- confidential or protected information under UNCITRAL Transparency Rules for treaty-based investor-state arbitration;
- refugee proceedings and documents under the 1951 Convention Relating to the Status of Refugees, as implemented by DOJ Circular No. 58 (s. 2012);
- testimony from a government official unless pursuant to a court or legal order;
- restrictions on requests for Statement of Assets, Liabilities and Net Worth when for any purpose contrary to morals or public policy, or for any commercial purpose other than by news and communications media for dissemination to the general public;
- failure to comply with records-access regulations imposed by the records custodian;
- lists, abstracts, and summaries of requested information when such lists, abstracts, or summaries are not part of the duties of the government office requested;
- information and proceedings deemed confidential by rules and regulations of relevant agencies or as decided by courts;
- requests covering comments and disclosures on pending cases in judicial proceedings; and
- attorney-client privilege between government lawyers and their client.
Privacy and personal information limits
- Privacy confidentiality applies to information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy, including personal information or records, such as sensitive personal information, birth records, school records, and medical or health records.
- The circular defines sensitive personal information by reference to the Data Privacy Act of 2012 as personal information about:
- race, ethnic origin, marital status, age, color, and religious, philosophical or political affiliations;
- health, education, genetic or sexual life, or proceedings for an offense committed or alleged, disposal of proceedings, or sentence of a court in such proceedings;
- government-issued identifiers peculiar to an individual, including social security numbers, previous or current health records, licenses or denials, suspension or revocation, and tax returns; and
- information specifically established by an executive order or an act of Congress to be kept classified.
- Personal information may be disclosed only to the extent the requested information is shown to be a matter of public concern or interest, does not meddle with or disturb the private life or family relations of the individual, and is not prohibited by any law or regulation.
- Any disclosure of personal information must follow the principles of transparency, legitimate purpose and proportionality.
- Information about any individual who is or was an officer or employee of a government institution is allowed when it relates to the position or functions of the individual, including:
- the fact that the individual is or was an officer or employee;
- title, business address and office telephone;
- classification, salary range and responsibilities of the position; and
- the name of the individual on a document prepared in the course of employment with the government.
- Privacy confidentiality includes confidential sources of news reports or information obtained in confidence appearing in newspapers, magazines, or periodicals of general circulation.
- Privacy confidentiality also includes records of proceedings and processes deemed confidential by law for the protection of specified persons, including detailed categories for child and family cases, children in conflict with the law, children who are victims, witnesses, cases of violence against women and their children, support cases involving recognition/enforcement of foreign decisions, trafficked persons, victims of child abuse, bullying-related student identities, children in armed conflict, minor drug offenders under specified discharge programs, HIV/AIDS identity and medical records, and other listed child-protection categories.
Procedural guidance and implementing effect
- The circular requires heads of offices to ensure the meaningful exercise of the public’s right to access to information on public concerns when evaluating requests.
- The circular provides that the exceptions list is for guidance and is implemented through the application of recognized confidentiality rules under the Constitution, laws, and jurisprudence, including conditions allowing disclosure in certain cases.
- The circular frames the enumerated exceptions as continuing standards that do not prevent disclosure when consent of the concerned party is satisfied or when courts order disclosure.
- The circular circularizes the updated inventory to be followed by government offices and instrumentalities covered by EO No. 02.
Scope of exception invocation (government executive-only)
- The circular states that the exceptions apply only to governmental bodies within the control and supervision of the Executive department.
- The circular allows invocation by officials, officers, or employees in the Executive branch in possession of relevant records or information when the exemption is not specifically identified.
- The circular limits executive privilege invocation to the President and close advisors, with the extent of privilege defined by jurisprudence including Senate v. Ermita (G.R. No. 169777, 20 April 2006), Neri v. Senate Committee on Accountability of Public Officers and Investigations (G.R. No. 180643, 4 September 2008), Akbayan v. Aquino (G.R. No. 170516, 16 July 2008), and Chavez v. PCGG (G.R. No. 130716, 9 December 1998).
- The circular states that the privilege of invoking the deliberative process exception ends when the executive agency adopts a definite proposition.
Cross-referenced legal bases and jurisprudence
- The circular bases the privacy exception categories on the Data Privacy Act of 2012 and enumerated privacy-protective statutes, rules of procedure, and Supreme Court rules governing confidentiality of specific proceedings and records.
- The circular cross-references banking and finance secrecy statutes including RA No. 1405, RA No. 6426, RA No. 8791, RA No. 9160 (as amended by RA No. 11521), RA No. 9510, and RA No. 245 (as amended by Presidential Decree No. 1878).
- The circular cross-references multiple confidentiality frameworks for law enforcement records, witness protection, arbitration and mediation confidentiality, civil service administrative case preliminary investigation records, anti-terrorism classification, and Supreme Court–ordered confidentiality rules.
- The circular incorporates treaty and international proceeding confidentiality through examples including UNCITRAL Transparency Rules and the 1951 Refugee Convention as implemented by DOJ Circular No. 58 (s. 2012).
- The circular uses jurisprudence to define executive privilege boundaries, including Senate v. Ermita, Neri v. Senate Committee, Akbayan v. Aquino, and Chavez v. PCGG.