Department of Transportation(DOTr)

Greetings!	

We would like to request a copy of the feasibility study of the PNR South Long-Haul Project, which has been listed by NEDA’s latest updates on the Duterte administration’s infrastructure flagship projects, as having been completed as of 13 June 2018.

The studies obtained will be used for a policy research paper regarding the 75 flagship projects under the Build, Build, Build program, which we hope to publish in the next few months.

We hope for your good office’s kind consideration in this matter.

Apologies for the late response as we needed to consult our legal department regarding your request. Please take note that the project you are requesting has not yet been procured/awarded.

Below is the reply of our legal department.

"After review, this Office is of the view that the request of Mr. Enriquez cannot be given due course considering that the disclosure of the said “Feasibility Studies” are subject to certain limitations and restrictions as provided by law.

It should be noted that the Freedom of Information principle under Executive Order No. 2 dated 23 July 2016 (An Order Operationalizing the Executive Branch the People’s Constitutional Right to Information and the State Policies to Full Public Disclosure and Transparency in the Public Service and Providing Guidelines Therefor) is not absolute since there are information and documents that the Government may still withhold from the public or any requesting person.

Accordingly, in the case of Chavez vs. Presidential Commission on Good Government, the Supreme Court clearly emphasized that aside from national security matters, intelligence information, bank transactions (pursuant to Secrecy of Bank Deposit Act), trade or industrial secrets (pursuant to Intellectual Property Code and other related laws) are also exempt from compulsory disclosure. Trade Secrets may not be the subject of compulsory disclosure. By reason of their confidential and privileged character, if disclosed, would eventually exposed to unwarranted business competition with others who may imitate and market the same kind of products or industry in violation of proprietary rights.

Relatively, in accordance with Memorandum dated 24 November 2016 (Inventory of Exceptions to Executive No. 2, Series of 2016 or the Freedom of Information Order) of Executive Secretary Salvador C. Medialdea, trade secrets, intellectual property, business, commercial, financial and other proprietary information are one of the exceptions to the public’s Right of Access to Information.

Thus, as regards the requested “Feasibility Studies” for the above-mentioned Projects, this Office opines that the same contains trade and industrial secrets as well as non-disclosure provisions affecting the Intellectual Property Rights of certain individuals, consulting firms and institutions that conducted the plans, designs and surveys for the said projects. As such, those persons or entities possessed certain proprietary and economic rights on the “Feasibility Studies” considering that its plans, designs and surveys thereof are not known to the general public and are peculiar to them.

For this reason, the DOTr, being the recipient of the “Feasibility,” has the right to safeguard its trade or industrial secrets against competitors of said individuals, consulting firms and institutions as well as the public. Otherwise, such information, if disclosed or disseminated can be illegally and unfairly utilized by other business competitors who, through their access to those business secrets, may use the same for their own private gain and to the irreparable prejudice of the owner of the said “Feasibility Studies.”

In addition, given the fact that the requested “Feasibility Studies” has yet to be submitted to other appropriate Government agencies for their corresponding comments, recommendations and issuance of permits, licenses and clearances, the information contained therein falls within the concept s of established privilege, which are strictly exclusive to those Government Agencies who will review and evaluate the railway projects.

Pursuant to Section 3 (d), Rule IV of the Rules Implementing Republic Act No. 6713, otherwise known as the “Code of Conduct and Ethical Standards for Public Officials and Employees,” every department, office of agency shall provide official information, records or documents to any requesting public, except if:
-xxx- “Such information, record or document sought falls within the concepts of established privilege or recognized exceptions as may be provided by law or settled policy or jurisprudence; and Such information, record or document comprises drafts of decisions, orders, rulings, policy and decisions memoranda, etc.” –xxx-

Relatively, it appears that the subject “Feasibility Studies,” which are still under evaluation by other Government agencies, partake the nature of an information or document comprising drafts of decisions, orders, rulings, policy and decisions memoranda that are addressed to the Government Officials concerned who are yet to finalize its recommendation and decision whether to approve or disapprove the railway projects. Hence, pending the decision or resolution of these Government agencies on the approval or disapproval of the railway projects, the same cannot yet be disclosed or disseminated to the public."