July 7, 2020
Dear Grace A. Graciadas,
Greetings!
Thank you for your request dated Jun 30, 2020 01:01:41 PM under Executive Order No. 2 (s. 2016) on Freedom of Information in the Executive Branch.
Your Request
You asked for Mandate of the SEC for LC & FC Investigations - Explanation on Conferences.
Response to Request
This refers to your requests filed under the Freedom of Information (FOI) Program of the Securities and Exchange Commission on 30 June 2020.
At the outset, please be informed that the FOI Program is the government’s response to the call for transparency and full public disclosure of information. FOI is a government mechanism, which allows Filipino citizens to request any information about government transactions and operations, provided that it shall not put into jeopardy – privacy and matters of national security.
Section 3 of Executive Order No. 2, Series of 2016 provides that:
SECTION 3. Access to information. Every Filipino shall have access to information, official records, public records and to documents and papers pertaining to official acts, transactions or decisions, as well as to government research data used as basis for policy development.
However, the call for transparency is not without limits. The right to access information is limited to the abovementioned matters and does not extend to matters that are discretionary in nature and/or that encroach upon privacy rights.
With this in mind, this office will address the requests for information dated 30 June 2020, as follows:
Mandate of the SEC for LC & FC Investigations - Explanation on Conferences
1) The obligations of the SEC to investigate LCs and/or FCs and what actions the SEC takes after receiving a complaint;
The full mandate of SEC and the procedure undertaken in relation to complaints filed against LCs and FCs are found in the SEC’s Citizen’s Charter. For your easy reference, the said Citizen’s Charter may be accessed through this link:
http://www.sec.gov.ph/wp-content/uploads/2019/12/2019-SEC-Citizens-Charter-Handbook1.pdf
2) An explanation as to why the SEC does not take pro-active law enforcement action. It has been witnessed that the SEC simply forwards complaints to the LCs and/or FCs and tries to mediate disputes through conferences.
The matter above is not a query but a conclusion on your part that the SEC does not undertake proactive law enforcement action. This is contrary to the admission in the query itself that the SEC takes action by forwarding the complaints to the concerned LCs and/or FCs and mediates disputes through conferences which are all undertaken in accordance with the 2016 Rules of Procedure.
For future reference, please note that vexatious requests are not considered valid requests for Official Information.
3) Why does the SEC use informal mechanisms instead of upholding the law and conducting its own investigations? What is the threshold for suspending a license? And why does the SEC promote informal settlements?
Sec. 2-3, Part II, Rule II of the 2016 Rules of Procedure of the Securities and Exchange Commission provides that the Operating Department shall not be bound by the contents of the complaint, tip or referral, and has full discretion to expand its investigation based on the evidence gathered.
Given the discretionary nature of the conduct of the investigation proceedings, the SEC cannot be made to explain or justify its processes unless there is a clear and convincing proof that there is grave abuse of discretion amounting to lack or excess of jurisdiction, the fact of which should be established in the courts of law.
Risking redundancy for emphasis, vexatious requests are not considered valid requests for Official Information.
Finally, it was noted that most of the above-cited request for information do not fall under the definition of “information”, “official record/records”, or “public record/records” as defined under E.O. No. 02, series of 2016, and which may be the subject of an FOI request, viz:
"Information" shall mean any records, documents, papers, reports, letters, contracts, minutes of official meetings, maps, books, photographs, data, research materials, films, sound and video recording, magnetic or other tapes, electronic data computer stored data, any other like or similar data or materials recorded, stored or archived in whatever format, whether offline or online, which are made, received, or kept in or under the control and custody of the Commission pursuant to law, executive order, and rules and regulations or in connection with the performance or transaction of official business of the Commission
"Official record/records" shall refer to information produced or received by the Commission in an official capacity or pursuant to a public function or duty
"Public record/records" shall include information required by laws, executive orders, rules, or regulations to be entered, kept and made publicly available by the Commission
For your information and guidance.
Your right to request a review
If you are unhappy with this response to your FOI request, you may ask us to carry out an internal review of the response by writing to Commission Secretary with e-mail address
[email protected]. Your review request should explain why you are dissatisfied with this response, and should be made within 15 calendar days from the date when you received this letter. We will complete the review and tell you the result within 30 calendar days from the date when we receive your review request.
If you are not satisfied with the result of the review, you then have the right to appeal to the Office of the President under Administrative Order No. 22 (s. 2011).
Thank you.
Respectfully,
Atty. Rachel Esther Gumtang- Remalante
FOI Receiving Officer
