Constitutional Question
The obscurity and disuse of MC 78 was not the result of a mere shift in policy; it has constitutional basis. It cannot now be reinstated without impinging on the constitutional right of the people to information on matters of public concern. Section 7 of the Bill of Rights of the 1987 Constitution reads:
The right of the people to information on matters of public concern shall be recognized. Access to official 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, shall be afforded the citizen, subject to such limitations as may be provided by law.
It may be said that the right to information has been recognized as early as the 1973 Constitution, and this fact did not stop the strict implementation of MC 78. However, it is common knowledge that the violation of most constitutional guarantees had been pervasive during the Marcos regime, and a comparison will be relevant only insofar as the Macapagal-Arroyo administration is behaving rather similarly.
But even more importantly, since the ratification of the 1987 Constitution, there has been a succession of cases that have laid down key principles in applying the right to information. Among these is the principle that government agencies are without discretion in refusing access to information of public concern. Only the manner of examining records may be reasonably regulated, for instance, by prescribing the manner and hours of examination so as to ensure the preservation of the documents as well as to properly manage the time of the record custodian. But the performance of the duty to disclose the information cannot depend upon the discretion of the agency; otherwise the right will be rendered worthless.
MC 78 indubitably clashes with such principle. It authorizes practically all public officers to classify documents. While authority to classify information as top secret or secret rests with the head of the department, this may be delegated. For confidential and restricted matter, any officer is authorized to assign such classifications. While jurisprudence recognizes certain governmental privileges against public disclosure, the classes of information that may be classified under MC 78 is so broad as to be practically unlimited. For instance, top secret matter may include major governmental projects; confidential matter need not involve matters of national security, and may include such matters as would cause administrative embarrassment; and restricted matter can include matters as vaguely defined as requiring special protection. In short, MC 78 gives government officers unlimited discretion in withholding information from the public by the simple expedient of categorizing it as classified matter. This renders worthless the constitutional guarantee of access to information of public concern, as well as the jurisprudence that agencies are without discretion in granting access.
