Anyone who has had to make an investment decision of any significance is familiar with the concept of the feasibility study: make sure that your decisions are made with due diligence and backed by the best available knowledge. Take a good, informed look before you leap, essentially.
The national government’s most important projects are reviewed by the Investment Coordination Committee (ICC), an inter-agency body composed of the government’s foremost experts on various aspects of policy. The ICC, too requires feasibility studies to be submitted as documentation for each project’s approval. However, the Philippine government, by default, does not release feasibility studies for its solicited projects.
When I was a student in the United Kingdom, I found it quite refreshing that the British Government had generally open access to feasibility studies and project cases. Take Britain’s premier high speed rail project, HS2, a project conceived to provide additional rail linkage between London and Northern England, as well as other connections in the North. The strategic case produced by the government is online and freely available for download.
The publication of the cases has enabled healthy public debate to take place prior to the project’s commencement, but has also allowed the public to engage with the project and make informed decisions in light of HS2. But the benefits are not limited to developers or citizens directly impacted by the project. Because anyone can download the studies, British students can engage deeply in current events that and ground principles they encounter in the classroom. The detailed work that students do with live data improves their prospects for employability. For students who cannot afford to produce their own research, open feasibility studies are a boon.
Why else is it beneficial that feasibility studies are published? If you have around seven or so minutes to spare, follow the link to Gil Meslin’s tweet thread below where he outlines a how a particular planning and project selection process became politicized:
The Gardiner East saga can be summarized like this: The city of Toronto retained a team of experts to help them make a decision about the Gardiner East expressway based on agreed-upon objectives. The objectives included not just improving mobility, but getting the best outcomes as far as safety, aesthetics, environmental and financial sustainability. The consultants recommended that the best option would be to remove the expressway, a move which has been amazing for cities that have tried it. However, right before city officials accepted the recommendation, a private party sent a letter to the city advocating against the expressway removal and proposing a “hybrid” solution that would keep the expressway. A new study was commissioned and used as basis to say that the removal of the expressway would create unacceptable delays, but Meslin noted that this study was not presented in full to the public and that the analysis by officials was incomplete.
The original consultant team was asked to consider the “hybrid” option that would keep the expressway and weigh it against the removal option. In the end, the city council of Toronto made a decision to keep the expressway in spite of expert advice saying it was the less preferred option on all fronts. Except, of course, for parties such as the one which intervened to propose that option.
Putting aside the awkwardness of Meslin’s medium, the point of his journalism is clear. Feasibility studies, done right, allow expert opinion to inform public policy. The studies also serve another purpose – they make it clear when official decisions happen in contrast to public opinion. When the process of approving the feasibility study is documented, the public can also see how officials’ thinking evolves in response to new information – such as the intervention of other interested parties, as in the case Meslin described. And if you’re a Torontonian that values officials that make decisions based on expert advice and evidence, this is valuable information for the next time you go to the polls.
Dear Government: Show Your Solutions
A few months ago, I put in a request for some information on traffic levels that I was told were contained in feasibility studies commissioned by the Department of Transportation. While my current request is being acted upon, I received an email update (maybe due to a bug) responding to someone else’s FOI request for a “Feasibility Study of the proposed BRT system.” The request probably refers to one or more studies of the planned Bus Rapid Transit systems in Metro Manila. The request was marked DENIED, with the DOTr’s legal department giving the following explanation:
“It bears to note that the purpose of his inquiry, while not per se contrary to law and existing rules and regulations, lacks specificity and clarity, and is speculative and conjectural, which the Department may not be able to answer with sufficient definiteness.
Anent the information requested, which is Feasibility Study of the proposed BRT System, this Office finds that such information is covered by the exempted documents under Section 4 of EO No. 2, Series of 2016, the inventory listed by the Office of the President, and jurisprudence.
Moreover, feasibility studies are conducted in project planning stages, which means that they may or may not be adopted or acted upon by the Department. Thus, the public disclosure thereof is premature and unwarranted. Furthermore, such premature disclosure may infringe on intellectual property rights of the authors of the study.
In Chavez v. Presidential Commission on Good Governance (G.R. No. 130716, 09 December 1998), the Supreme Court enumerates trade secrets and other confidential information as well-recognized restrictions to the right of the people to information on matters of public concerns. …
A trade secret is defined as a plan or process, tool, mechanism, or compound known only to its owner and those of his employees to whom it is necessary to confide it. It may consist of any formula, pattern, device, or compilation of information that: (1) is used in one’s business; and (2) gives the employer an opportunity to obtain an advantage over competitors who do not possess the information. …
A feasibility study includes research data, structural plans, industrial designs, compilation of information which gives its authors or the Government the opportunity to obtain an advantage over competitors who do not possess the information.
Thus, the requested information falls under the category of trade secrets which falls beyond the ambit of compulsory disclosure. It bears to note that feasibility studies undertaken, submitted, solicited, granted or awarded to the Department may even be covered by non-disclosure and/or confidentiality agreements.
Thus, releasing the requested information may cause the Government breach of its confidentiality obligations. In view of the foregoing, this Office recommends the denial of Mr. Magisan’s request.”
It is entirely possible that the request made was vague and incomprehensible, but it is interesting that the DOTr’s legal team cites a number of defenses seemingly in anticipation of more specific requests.
The reference to protected “trade secrets” is interesting. In the case of unsolicited proposals where a private party submits their own feasibility study to government, they would have good reason to prevent public release of information on proprietary techniques or technology used in their proposal. However, when it comes to the feasibility study for a government-solicited project, is the trade secrets defense viable? The government’s interest in delivering projects is for improving public welfare and not what I would call primarily commercial, or so I would hope. Neither does the Philippine government have competitors in providing public service, really.
The DOTr legal team also mentions the possible violation of non-disclosure agreements. I don’t see why a government client would be forbidden by their consultants to circulate information the government presumably owns. But in addition to that, the reasoning for the denial does not cite any non-disclosure clauses specific to an FS, only the possibility that some non-disclosure clauses may exist. This seems to indicate a bias against releasing the FS, which may conflict with the President’s executive order on Freedom of Information:
SECTION 6. Application and Interpretation. There shall be a legal presumption in favor of access to information, public records and official records. No request for information shall be denied unless it clearly falls under any of the exceptions listed in the inventory or updated inventory of exceptions circularized by the Office of the President provided in the preceding section.
A friend of mine, Dr. Segundo Romero of Ateneo de Manila University points out that government has a strong incentive against publishing Feasibility Studies. He describes that information in Feasibility Studies, if published, “might unsettle private deals of some public officials that hinge on the information remaining confidential.” And as we saw earlier in Meslin’s history of Gardiner East, opening the books may reveal just how data-driven or politicized our planning process is.
Just How Open Should Feasibility Studies Be?
While there’s no sense in releasing feasibility studies that have not been completed, it may be useful to establish certain conceptual “milestones” in the planning process when a feasibility study can be released. In thinking about these, we have to balance the benefits of publishing a feasibility study against the reporting burden this places on the government. We also need to consider that the premature release of information might hinder the government from doing its job effectively.
At the very least, it seems to make sense that feasibility studies for projects are published once they meet with acceptance by the head of the agency commissioning them, as in the case of HS2 and the British Department for Transport. Another release can be made once the project meets final approval by a higher authority, if needed – such as approval by the President of the Philippines through the NEDA Board. Finally, publication of ex-post project evaluations can also be made when these are completed, as these also enhance public understanding of, and participation in government projects. Not everyone’s going to be happy that these studies are put out in the open, but I hazard a cost-benefit analysis will show the public much better off for it.
Featured Image: Blocked Access. Taken by author last December at the Mall of Asia.