The Chairwoman
Civil Service Commission
Batasan Hills, Quezon City
Dear Madam Chairwoman,
Belated Merry Christmas and Advance Happy New Year!
As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an employee of your agency to be a lawyer of an accused gov't employee having a pending case in the csc. I honestly think this is a violation of law and unfair to others and your office.
I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly because our perception of your clean and good office is being tainted.
Concerned Govt employee3
"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the Chairman. If you can make it here now it would be better."
"All PCs Of PALD and LSD are being backed up per memo of the chair."
"CO IT people arrived just now for this purpose. We were not also informed about this.
"We can't do anything about ... it ... it's a directive from chair."
"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5
Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service. The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.9
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A. Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of civil service eligibilities and bar from taking future civil service examinations.21
I
THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;II
THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;III
THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF] GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III, SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;IV
THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007 AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26
Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows:"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." (Sec. 13, Article III)
was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.30
x x x Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. x x x The employee's expectation of privacy must be assessed in the context of the employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others - such as fellow employees, supervisors, consensual visitors, and the general public - may have frequent access to an individual's office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer," x x x but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the great variety of work environments in the public sector, the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted; emphasis supplied.)
Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals simply concluded without discussion that the "search...was not a reasonable search under the fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is only to begin the inquiry into the standards governing such searches...[W]hat is reasonable depends on the context within which a search takes place. x x x Thus, we must determine the appropriate standard of reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we must balance the invasion of the employees' legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace.
x x x x
In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee's office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the primary business of the agency. Under these circumstances, the imposition of a warrant requirement would conflict with the "common-sense realization that government offices could not function if every employment decision became a constitutional matter." x x x
x x x x
The governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace. Government agencies provide myriad services to the public, and the work of these agencies would suffer if employers were required to have probable cause before they entered an employee's desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter employee offices for work-related, noninvestigatory reasons.
We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee misconduct. Even when employers conduct an investigation, they have an interest substantially different from "the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and the consequences of their misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here would impose intolerable burdens on public employers. The delay in correcting the employee misconduct caused by the need for probable cause rather than reasonable suspicion will be translated into tangible and often irreparable damage to the agency's work, and ultimately to the public interest. x x x
x x x x
In sum, we conclude that the "special needs, beyond the normal need for law enforcement make the...probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable:"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider 'whether the...action was justified at its inception,' x x x ; second, one must determine whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place,'" x x x
Ordinarily, a search of an employee's office by a supervisor will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file. x x x The search will be permissible in its scope when "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of ...the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.)
x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society is prepared to accept as objectively reasonable. x x x
x x x x
x x x We conclude that the remote searches of Simons' computer did not violate his Fourth Amendment rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded from the Internet. Additionally, we conclude that Simons' Fourth Amendment rights were not violated by FBIS' retrieval of Simons' hard drive from his office.
Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or monitor" employees' use of the Internet, including all file transfers, all websites visited, and all e-mail messages, "as deemed appropriate." x x x This policy placed employees on notice that they could not reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS' actions in remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the Fourth Amendment.
x x x x
The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons' workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.
x x x x
In the final analysis, this case involves an employee's supervisor entering the employee's government office and retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy - equipment that the employer knew contained evidence of crimes committed by the employee in the employee's office. This situation may be contrasted with one in which the criminal acts of a government employee were unrelated to his employment. Here, there was a conjunction of the conduct that violated the employer's policy and the conduct that violated the criminal law. We consider that FBIS' intrusion into Simons' office to retrieve the hard drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.)
The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld. (Emphasis supplied.)
POLICY
- The Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes.
- Users shall be permitted access to Computer Resources to assist them in the performance of their respective jobs.
- Use of the Computer Resources is a privilege that may be revoked at any given time.
x x x x
No Expectation of Privacy
- No expectation of privacy. Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system.
The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination data and processes.- Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network. Users understand that the CSC may use human or automated means to monitor the use of its Computer Resources.
- Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance.
x x x x
Passwords
- Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be responsible for all transactions made using their passwords. No User may access the computer system with another User's password or account.
- Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular User's password. Only members of the Commission shall authorize the application of the said global passwords.
x x x x47 (Emphasis supplied.)
- That prior to this, as early as 2006, the undersigned has received several text messages from unknown sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff working in another government agency, "selling" cases and aiding parties with pending cases, all done during office hours and involved the use of government properties;
- That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant an investigation;
- That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in the alleged irregularities happening in CSCRO IV;
- That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;
x x x x50
Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the Commission that the search of Pollo's computer has successfully passed the test of reasonableness for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears emphasis that the Commission pursued the search in its capacity as a government employer and that it was undertaken in connection with an investigation involving a work-related misconduct, one of the circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases with the said regional office or in the Commission. The nature of the imputation was serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in the practice of "lawyering" for parties with pending cases before the Commission would be a highly repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general public would not have any trust and confidence in it.
Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search was forthwith conducted involving the computer resources in the concerned regional office. That it was the computers that were subjected to the search was justified since these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-related investigation.
Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was duly notified, through text messaging, of the search and the concomitant retrieval of files from his computer.
All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are deemed admissible.53
It is also striking to note that some of these documents were in the nature of pleadings responding to the orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly participated in the promotion or advancement of the interests of parties contrary or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply doing the same for the money - a "legal mercenary" selling or purveying his expertise to the highest bidder, so to speak.
Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that he was the author thereof. This is because he had a control of the said computer. More significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer.
To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo submitted.
At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but several times gauging by the number of pleadings, for ends not in conformity with the interests of the Commission. He was, in effect, acting as a principal by indispensable cooperation...Or at the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and the electricity, to be utilized for purposes other than what they were officially intended.
Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal pleading stored in the computer assigned to the respondent, unless he had something to do with it?56
Rule II - Disciplinary Cases
SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the proper disciplining authority, the complaint need not be under oath.
No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation therein or supported by documentary or direct evidence, in which case the person complained of may be required to comment.
x x x x
Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly acquired. (Emphasis supplied.)
Endnotes:
1 Rollo, pp. 63-83. Penned by Associate Justice Romeo F. Barza, with Associate Justices Mariano C. Del Castillo (now a Member of this Court) and Arcangelita M. Romilla-Lontok concurring.
2 Id. at 85.
3 Id. at 306.
4 Id. at 305.
5 CA rollo, p. 56.
6 Id.
7 Id. at 21-24.
8 Id. at 20-25.
9 Id. at 25.
10 Id. at 55-62.
11 Id. at 26-33. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in ruling that a prima facie case existed against petitioner while Commissioner Cesar D. Buenaflor dissented [see Memorandum (OCOM-C Memo No. 14, s. 2007, CA rollo, pp. 431-434).
12 CSC records, pp. 71-l to 71-n. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in the denial of the omnibus motion while Commissioner Cesar D. Buenaflor reiterated his dissent.
13 CA rollo, pp. 2-19.
14 Id. at 288-294, 321-325.
15 Id. at 336-340.
16 Id. at 373.
17 Id. at 376-378.
18 Id. at 388-392.
19 Id. at 457-463. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in denying the motion while Commissioner Cesar D. Buenaflor dissented stating that based on his dissenting position, any subsequent proceedings in this case is of no moment since the initiatory proceedings was in violation of a person's fundamental rights enshrined in the Bill of Rights of the Constitution. (Id. at 465.)
20 Id. at 586-618. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in ruling that petitioner is guilty as charged while Commissioner Cesar D. Buenaflor maintained his dissent.
21 Id. at 618.
22 480 U.S. 709 (1987).
23 206 F.3d 392 (4th Cir. 2000).
24 Id. at 560-585.
25 Id. at 707-719. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-Mendoza concurred in the denial of the motion for reconsideration while Commissioner Cesar D. Buenaflor reiterated his dissent under his "Addendum to the Dissenting Position Under OCOM-C Memo No. 14, S. 2007". (Id. at 720.)
26 Rollo, p. 19.
27 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 and 161658, November 3, 2008, 570 SCRA 410, 427, citing Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169.
28 Joaquin Bernas, S.J., The Constitution of the Republic of the Philippines: A Commentary, 2003 ed., p. 162.
29 G.R. No. 81561, January 18, 1991, 193 SCRA 57.
30 Id. at 63.
31 389 U.S. 437 (1967).
32 Id.
33 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968).
34 Supra note 22.
35 Id. at 717.
36 City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, U.S. 2010, June 17, 2010.
37 Supra note 22 at 717-718.
38 Id. at 718-719.
39 Id. at 719, 722-725.
40 Francis v. Giacomelli, 588 F.3d 186, C.A. (Md), December 2, 2009.
41 Supra note 23.
42 Id.
43 Supra note 27 at 432-433.
44 U.S. v. Barrows, 481 F.3d 1246, C.A.10 (Okla.), April 3, 2007, citing United States v. Anderson, 154 F.3d 1225, 1229 (10th Cir. 1998).
45 U.S. v. Ziegler, 474 F.3d 1184 C.A.9 (Mont.), January 30, 2007.
46 CA rollo, pp. 42, 61.
47 Id. at 440-443.
48 Biby v. Board of Regents, of the University of Nebraska at Lincoln, 419 F.3d 845 C.A.8 (Neb), August 22, 2005.
49 Id.
50 CA rollo, p. 639.
51 U.S. v. Thorn, 375 F.3d 679, C.A.8 (Mo.), July 13, 2004.
52 Id.
53 CA rollo, pp. 611-612.
54 A.M. Nos. P-08-2519 and P-08-2520, November 19, 2008, 571 SCRA 361.
55 Vertudes v. Buenaflor, G.R. No. 153166, December 16, 2005, 478 SCRA 210, 230, citing Rosario v. Victory Ricemill, G.R. No. 147572, February 19, 2003, 397 SCRA 760, 766 and Bagong Bayan Corp., Realty Investors and Developers v. NLRC, G.R. No. 61272, September 29, 1989, 178 SCRA 107.
56 CA rollo, pp. 616-617.
57 G.R. No. 147009, March 11, 2004, 425 SCRA 394, 401.
58 Rollo, p. 299.
59 See Tañada v. Hon. Tuvera, 230 Phil. 528, 535 (1986).
CONCURRING AND DISSENTING OPINION
BERSAMIN, J.:
I render this concurring and dissenting opinion only to express my thoughts on the constitutional right to privacy of communication and correspondence vis-á -vis an office memorandum that apparently removed an employee's expectation of privacy in the workplace.
I
Indispensable to the position I take herein is an appreciation of the development and different attributes of the right to privacy that has come to be generally regarded today as among the valuable rights of the individual that must be given Constitutional protection.
The 1890 publication in the Harvard Law Review of The Right to Privacy,1 an article of 28 pages co-written by former law classmates Samuel Warren and Louis Brandeis, is often cited to have given birth to the recognition of the constitutional right to privacy. The article was spawned by the emerging growth of media and technology, with the co-authors particularly being concerned by the production in 1884 by the Eastman Kodak Company of a "snap camera" that enabled people to take candid pictures. Prior to 1884, cameras had been expensive and heavy; they had to be set up and people would have to pose to have their pictures taken. The snap camera expectedly ignited the enthusiasm for amateur photography in thousands of people who had previously not been able to afford a camera. This technological development moved Warren and Brandeis to search for a legal right to protect individual privacy.2 One of the significant assertions they made in their article was the declaration that "the common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others,"3 said right being merely part of an individual's right to be let alone.4
While some quarters do not easily concede that Warren and Brandeis "invented" the right to privacy, mainly because a robust body of confidentiality law protecting private information from disclosure existed throughout Anglo-American common law by 1890, critics have acknowledged that The Right to Privacy charted a new path for American privacy law.5
In 1928, Brandeis, already a Supreme Court Justice, incorporated the right to be let alone in his dissent in Olmstead v. United States,6 viz:
"The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone ? the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth." [emphasis supplied]
"Practically, education of the young is only possible in schools conducted by especially qualified persons who devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their children, we think, are within the liberty of the Amendment."
"By Pierce v. Society of Sisters, supra, the right to educate one's children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity is given the right to study the German language in a private school. In other words, the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U.S. 183, 195) -- indeed, the freedom of the entire university community. (Sweezy v. New Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112; Baggett v. Bullitt, 377 U.S. 360, 369). Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle of the Pierce and the Meyer cases.x x x x
"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. (NAACP v. Alabama, 377 U.S. 288, 307). Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship."
"This right of privacy xxx is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.x x x x
"Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant."
"More than religious freedom, I look with partiality to the rights of due process and privacy. Law in general reflects a particular morality or ideology, and so I would rather not foist upon the populace such criteria as "compelling state interest," but more, the reasonably foreseeable specific connection between an employee's potentially embarrassing conduct and the efficiency of the service. This is a fairly objective standard than the compelling interest standard involved in religious freedom.
"Verily, if we are to remand the instant case to the Office of the Court Administrator, we must also configure the rights of due process and privacy into the equation. By doing so, we can make a difference not only for those who object out of religious scruples but also for those who choose to live a meaningful life even if it means sometimes breaking "oppressive" and "antiquated" application of laws but are otherwise efficient and effective workers. As is often said, when we have learned to reverence each individual's liberty as we do our tangible wealth, we then shall have our renaissance."
Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.x x x x
"The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt: "The concept of limited government has always included the idea that governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private sector -- protection, in other words, of the dignity and integrity of the individual -- has become increasingly important as modern society has developed. All the forces of a technological age -- industrialization, urbanization, and organization -- operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian society."
"Given the societal expectations of privacy in one's place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work. Individuals do not lose Fourth Amendment rights merely because they work for the government, instead of a private employer. The operational realities of the workplace, however, may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor, rather than a law enforcement official. Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate regulation. xxx An office is seldom a private enclave free from entry by supervisors, other employees, and business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is the nature of government offices that others - such as fellow employees, supervisors, consensual visitors, and the general public - may have frequent access to an individual's office. We agree with JUSTICE SCALIA that'[c]onstitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer,'
but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.xxxx
"Balanced against the substantial government interests in the efficient and proper operation of the workplace are the privacy interests of government employees in their place of work, which, while not insubstantial, are far less than those found at home or in some other contexts. As with the building inspections in Camara, the employer intrusions at issue here "involve a relatively limited invasion" of employee privacy. Government offices are provided to employees for the sole purpose of facilitating the work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them at home. [emphasis supplied]
(a) Employers have legitimate interests in monitoring the workplace;40
(b) Employers own the facilities;
(c) Monitoring computer or internet use is a lesser evil compared to other liabilities, such as having copyright infringing material enter the company computers, or having employees send proprietary material to outside parties;
(d)An employer also has an interest in detecting legally incriminating material that may later be subject to electronic discovery;
(e) An employer simply needs to monitor the use of computer resources, from viruses to clogging due to large image or pornography files.41
(a) To maintain the company's professional reputation and image;
(b) To maintain employee productivity;
(c) To prevent and discourage sexual or other illegal workplace harassment;
(d) To prevent "cyberstalking"by employees;
(e) To prevent possible defamation liability;
(f) To prevent employee disclosure of trade secrets and other confidential information; and
(g) To avoid copyright and other intellectual property infringement from employees illegally downloading software, etc.43
Waste of Computer Resources. x x xx x x x
However, Users are given privileged access to the Internet for knowledge search, information exchange and others. They shall be allowed to use the computer resources for personal purpose after office hours provided that no unlawful materials mentioned in item number 7 and 8 are involved, and no other facilities such as air conditioning unit, video/audio system etc., shall be used except sufficient lights. [emphasis supplied]
"The theory of balance of interests represents a wholly pragmatic approach to the problem of First Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the theory that is the Court's function in the case before it when it finds public interests served by legislation on the one hand and First Amendment freedoms affected by it on the other, to balance the one against the other and to arrive at a judgment where the greater weight shall be placed. If on balance it appears that the public interest served by restrictive legislation is of such a character that it outweighs the abridgment of freedom, then the Court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment, and that they may be abridged to some extent to serve appropriate and important interest." (emphasis supplied.)
"In Hudson v. Palmer, the U.S. Supreme Court ruled that an inmate has no reasonable expectation of privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many protections of the Constitution, thus:'However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights. These constraints on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the considerations underlying our penal system." The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, chief among which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.'
"The later case of State v. Dunn, citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made no distinction as to the detainees' limited right to privacy.State v. Dunn noted the considerable jurisprudence in the United States holding that inmate mail may be censored for the furtherance of a substantial government interest such as security or discipline. State v. Dunn declared that if complete censorship is permissible, then the lesser act of opening the mail and reading it is also permissible.We quote State v. Dunn:'[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner's expectation of privacy always yield to what must be considered a paramount interest in institutional security. We believe that it is accepted by our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement."'x x x x
"Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees' letters in the present case violated the detainees' right to privacy of communication. The letters were not in a sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose as the opening of sealed letters for the inspection of contraband.x x x x
"In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the guarantees of the Constitution with the legitimate concerns of prison administrators." The deferential review of such regulations stems from the principle that:[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration." [emphasis supplied]
"In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory statute has some rational relationship to the effectuation of a proper state purpose. Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling (Bates v. Little Rock, 361 U.S. 516, 524). The law must be shown 'necessary, and not merely rationally related, to the accomplishment of a permissible state policy.'" (McLaughlin v. Florida, 379 U.S. 184, 186)
"xxx time works changes, brings into existence new conditions and purposes." Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. Moreover, "in the application of a Constitution, our contemplation cannot be only of what has been but of what may be." The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. xxx"
Endnotes:
1 4 Harvard Law Review 193.
2 Richards, Neil M. and Daniel J. Solove, Privacy's Other Path: Recovering the Law of Confidentiality, The Georgetown Law Journal, Vol. 96 (2007), pp. 128-129.
3 Supra, note 1, p. 198.
4 Id., p. 195; Warren and Brandeis adopted the "right to be let alone" language from Judge Thomas M. Cooley's 1888 treatise The Law of Torts 29 (2d ed. 1888).
5 Richards and Solove, op. cit., p. 125.
6 277 U.S. 438 (1928).
7 48 California Law Review, No. 3 (August 1960), p. 383.
8 Id., p. 389.
9 Id.; see also Richards and Solove, op. cit., pp. 148-149.
10 Restatement of Torts 2d §652B (1977) (Prosser was also a reporter of the Second Restatement of Torts).
11 Id., §652D-§652E (1977).
12 Id., §652C (1977.)
13 429 U.S. 589 (1977).
14 Gilbert, Helen L., Minors' Constitutional Right to Informational Privacy, The University of Chicago Law Journal (2007), pp. 1385-1386.
15 Id., p. 1386.
16 638 F2d 570 (3d Cir 1980).
17 Id., p. 578.
18 262 U.S. 390 (1923).
19 The criminal information was based upon "An act relating to the teaching of foreign languages in the State of Nebraska," approved April 9, 1919, pertinent portions of which provide:
Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language.
Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides.
Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for each offense.
Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.
20 381 U.S. 479 (1965).
21 410 U.S. 113 (1973)
22 A.M. No, P-02-1651, August 4, 2003, 408 SCRA 1.
23 Bernas, Joaquin G., The 1987 Constitution of the Philippines, 1986 Ed., p. 191.
24 410 U.S. 113 (1973).
25 Ninth Amendment of the United States Constitution.
26 G.R. No. L-20387, 22 SCRA 424, January 31, 1968.
27 Id., citing Public Utilities Commission v. Pollak, 343 U. S. 451, 467 (1952).
28 277 U.S. 438 (1928).
29 389 U.S, 347, 350-351 (1967).
30 The transcript of Judge Schneider's oral argument in part provides:
Mr. Schneider: x x x We think and respectfully submit to the Court that whether or not, a telephone booth or any area is constitutionally protected, is the wrong initial inquiry.
We do not believe that the question should be determined as to whether or not, let's say you have an invasion of a constitutionally protected area, that shouldn't be the initial inquiry, but rather that probably should be the conclusion that is reached after the application of a test such as that we propose are similar test.
Now, we have proposed in our brief and there's nothing magical or ingenious about our test.
It's an objective test which stresses the rule of reason, we think.
The test really asks or opposes the question, "Would a reasonable person objectively looking at the communication setting, the situation and location of a communicator and communicatee -- would he reasonably believe that that communication was intended to be confidential?"
We think that in applying this test there are several criteria that can be used.
Justice William J. Brennan: So that parabolic mic on the two people conversing in the field a mile away might --
Mr. Schneider: Absolutely.
x x x
We think that if a confidential communication was intended and all the other aspects of confidentiality are present, then it makes no difference whether you're in an open field or in the privacy of your own home.
We would submit to the Court that there are factors present which would tend to give the Courts, the trial courts, and ultimately this Court, some guidelines as to whether or not objectively speaking, the communication was intended to be private.
x x x
Mr. Schneider: x x x
I believe the following factors at least should be included in an analysis of this problem.
One, what is the physical location?
In other words, where did the conversation take place?
Was it in a situation where numerous persons were present or whether just a few people present?
I think that bears on the issue.
I think the tone of voice bears on the issue.
I think that you can have a communication for example in your house which almost everyone would see all things being equal would be confidential.
However, if you use a loud enough voice, I think you destroy your own confidentiality.
x x x
Mr. Schneider: x x x
We feel that the Fourth Amendment and at the Court's decisions recently for a long time, I believe, have indicated that the right to privacy is what's protected by the Fourth Amendment.
We feel that the right to privacy follows the individual.
And that whether or not, he's in a space when closed by four walls, and a ceiling, and a roof, or an auto-mobile, or any other physical location, is not determined of the issue of whether or not the communication can ultimately be declared confidential.
x x x
Justice John M. Harlan: Could you state this Court tested this as you propose?
Mr. Schneider: Yes, we propose a test using in a way it's not too dissimilar from a tort, that tort reasonable man test.
We're suggesting that what should be used is the communication setting should be observed and those items that should be considered are the tone of voice, the actual physical location where the conversation took place, the activities on the part of the officer.
When all those things are considered, we would ask that the test be applied as to whether or not a third person objectively looking at the entire scene could reasonably interpret and could reasonably say that the communicator intended his communication to be confidential. x x x (emphasis supplied.)
31 Winn, Peter, Katz and the Origins of the "Reasonable Expectation of Privacy" Test, 2008.
32 Id.; see the concurring opinion of Justice Harlan in Katz v. United States, 389 U.S, 347, 350-351 (1967).
33 Concurring opinion of Justice Harlan in Katz v. United States, supra.
34 Katz v. United States, supra; writing for the majority, Justice Stewart made the following pronouncement:
xxx. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. But the protection of a person's general right to privacy -- his right to be let alone by other people -- is, like the protection of his property and of his very life, left largely to the law of the individual States.
35 392 U.S. 364 (1968).
36 Justice Harlan delivered the opinion of the Court.
37 In Whalen v. Roe, supra, note 13, p. 599, the Court advanced the principle that the right to information privacy has two aspects: (1) the right of an individual not to have private information about himself disclosed; and (2) the right of an individual to live freely without surveillance and intrusion.
38 480 U.S. 709, 715-17 (1987).
39 Tan, Oscar Franklin B., Articulating the Complete Philippine Right to Privacy in Constitutional and Civil Law: A Tribute to Chief Justice Fernando and Justice Carpio, Philippine Law Journal, Vol. 82, No. 4 (2008), pp. 228-229.
40 Id., citing Michael Rustad and Thomas Koenig, Cybertorts and Legal Lag: An Empirical Analysis, 13 S. Cal. Interdisc. L.J. 77, 95 (2003).
41 Id., citing Matthew Finkin, Information Technology and Worker's Privacy: The United States Law, 23 COMP. LAB. L. & POL'Y J. 471, 474 (2002).
42 Supra Note 6, p. 228.
43 Ciocchetti, Corey A., Monitoring Employee Email: Efficient Workplaces vs. Employee Privacy, <http://www.law.duke.edu/journals/dltr/articles/2001dltr0026.html#8.> Last visited on June 14, 2011; citing Terrence Lewis, Pittsburgh Business Times, Monitoring Employee E-Mail: Avoid stalking and Illegal Internet Conduct)
.
44 Rollo, p. 98.
O.M. No. 10 provides:
OBJECTIVES
Specifically, the guidelines aim to:
· Protect confidential, proprietary information of the CSC from theft or unauthorized disclosure to third parties;
· Optimize the use of the CSC's Computer Resources as what they are officially intended for; and
· Reduce, and possibly eliminate potential legal liability to employees and third parties.
45 Id., p. 99; O.M. No. 10 states:
Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send, or receive on the computer through the Internet or any other computer network. Users understand that the CSC may use human or automated means to monitor the use of its Computer Resources.
46 Griswold v. Connecticut, supra, note 20, citing NAACP v. Alabama, 377 U.S. 288 (1964).
47 O'Connor v. Ortega, 25 480 U.S. 709, 715-17 (1987).
48 Cited in Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969, 27 SCRA 835, 899.
49 G.R. No. 160792, August 25, 2005, 468 SCRA 188, 211-214.
50 The Civil Service Commission was conferred the status of a department by Republic Act No. 2260 as amended and elevated to a constitutional body by the 1973 Constitution. It was reorganized under PD No. 181 dated September 24, 1972, and again reorganized under Executive Order no. 181 dated November 21, 1986. With the new Administrative Code of 1987 (EO 292), the Commission is constitutionally mandated to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the Civil Service. Also, as the central human resource institution and as adviser to the President on personnel management of the Philippine Government, the Civil Service Commission exists to be the forerunner in (1) upholding merit, justice and fairness; (2) building competence, expertise and character; (3) ensuring delivery of quality public services and products; (4) institutionalizing workplace harmony and wellness; and (5) fostering partnership and collaboration. www.csc.gov.ph/mandate and mission. Last visited on July 13, 2011.
51 Regan, Priscilla M., Legislating Privacy (Technology, Social Values, and Public Policy), The University of North Carolina Press, 1995, p. 186.
52 381 U.S. 479 (1965).
53 Rollo, p. 96-97; Paragraphs 4 and 5 of the Affidavit executed by Ponciano R. Solosa narrated the following:
4. That I have also requested Ricky who is like a son to me having known him since he was eighteen (18) years old, to keep my personal files for safekeeping in his computer which I understand was issued thru Memorandum Receipt and therefore for his personal use;
5. That this affidavit is issued to attest to the fact that Mr. Pollo has nothing to do with my files which I have entrusted to him for safekeeping including my personal pleadings with the LTO and PUP, of which I have been the counsel on record and caused the preparation and signed thereof accordingly.
Also, paragraph 5 of the Affidavit executed by Eric N. Estrellado mentioned the following:
8. That I deny what was indicated in CSC Resolution No. 07-0382 under item 13 and 14 that Ricky Pollo is earning out of practicing or aiding people undersigned included, the truth of the matter the statement made "Epal, kulang ang bayad mo.", was a private joke between me and my counsel and friend Atty. Solosa. That item 14 was my billing statement with the law firm of solosa [sic] and de Guzman. Ricky has nothing to do with it. These private files but was intruded and confiscated for unknown reasons by people who are not privy to our private affairs with my counsel. That these are in the CPU of Ricky, as he would request as in fact Atty. Solosa himself requested Ricky to keep files thereof thru flash drive or disk drive;
54 Dissenting Opinion of Justice Brandeis, Olmstead v. United States, supra Note 6.
SEPARATE CONCURRING OPINION
CARPIO, J.:
I concur with the Court's denial of the petition. However, I file this separate opinion to (1) assert a statutory basis for the disposition of the case, and (2) articulate the exception to the Civil Service Commission (CSC) office regulation denying expectation of privacy in the use of government computers.
First. The CSC's computer use regulation, which opens to access for internal scrutiny anything CSC employees "create, store, send, or receive in the computer system," has a statutory basis under the Government Auditing Code of the Philippines. Section 4(2) of the Code mandates that "[g]overnment x x x property shall be x x x used solely for public purposes."1 In short, any private use of a government property, like a government-owned computer, is prohibited by law. Consequently, a government employee cannot expect any privacy when he uses a government-owned computer because he knows he cannot use the computer for any private purpose. The CSC regulation declaring a no-privacy expectation on the use of government-owned computers logically follows from the statutory rule that government-owned property shall be used "solely" for a public purpose.
Moreover, the statutory rule and the CSC regulation are consistent with the constitutional treatment of a public office as a public trust.2 The statutory rule and the CSC regulation also implement the State policies, as expressly provided in the Constitution, of ensuring full disclosure of all government transactions involving public interest,3 maintaining honesty and integrity in the public service, and preventing graft and corruption.4
Thus, in this jurisdiction, the constitutional guarantees of privacy and reasonable search are unavailing against audit inspections or internal investigations for misconduct, as here, of electronic data stored in government-owned property such as computing, telecommunication, and other devices issued to civil servants. These constitutional guarantees apply only to searches of devices privately owned by government employees.
Second. The CSC office regulation denying CSC employees privacy expectation in "anything they create, store, send, or receive in the computer system,"5 although valid as to petitioner Briccio Pollo, is constitutionally infirm insofar as the regulation excludes from its ambit the three CSC commissioners solely by reason of their rank, and not by reason of the confidential nature of the electronic data they generate.
Office regulations mandating no-privacy expectation such as the CSC regulation in question cannot justify access to sensitive government information traditionally recognized as confidential. Thus, insulated from the reach of such regulations are Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings, internal deliberations of the Supreme Court and other collegiate courts, draft decisions of judges and justices, executive sessions of either house of Congress, military and diplomatic secrets, national security matters, documents relating to pre-prosecution investigations by law enforcement agencies and similar confidential matters.6 The privilege of confidentiality covering these classes of information, barring free access to them, is grounded on the nature of the constitutional function of the public officials involved, coupled with considerations of efficiency, safety and comity interests since disclosure of confidential information jeopardizes decision-making, endangers lives and undermines diplomatic dealings, as the case may be.
The CSC, as the government's "central personnel agency,"7 exercises quasi-judicial functions in "[r]ender[ing] opinion and rulings on all personnel and other Civil Service matters."8 The CSC's internal deliberations on administrative cases are comparable to the internal deliberations of collegial courts. Such internal deliberations enjoy confidentiality and cannot be accessed on the ground that an audio of the deliberations is stored in a government-owned device. Likewise, draft decisions of CSC commissioners that are stored in government-issued computers are confidential information.
By providing that "[u]sers except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive in the [government-owned] computer system," the CSC regulation creates a new, constitutionally suspect category of confidential information based, not on the sensitivity of content, but on the salary grade of its author. Thus, a glaring exemption from the CSC's own transparency regulation is "anything x x x create[d], store[d], sen[t], or receive[d]" in the commission's computer system by the three CSC members. As the new category is content-neutral and draws its confidentiality solely from the rank held by the government official creating, storing, sending and receiving the data, the exemption stands on its head the traditional grounding of confidentiality - the sensitivity of content.
The constitutional infirmity of the exemption is worsened by the arbitrariness of its rank-based classification. The three CSC commissioners, unlike the rest of the lower ranked CSC employees, are excluded from the operation of the CSC's data transparency regulation solely because they are the CSC's highest ranking officers.9 This classification fails even the most lenient equal protection analysis. It bears no reasonable connection with the CSC regulation's avowed purposes of "[1] [p]rotect[ing] confidential, proprietary information of the CSC from theft or unauthorized disclosure to third parties; [2] [o]ptimiz[ing] the use of the CSC's [c]omputer [r]esources as what they are officially intended for; and [3] [r]educ[ing] and possibly eliminat[ing] potential legal liability to employees and third parties."10 The assumption upon which the classification rests - that the CSC commissioners, unlike the rest of the CSC's thousands of employees, are incapable of violating these objectives - is plainly unfounded.
The only way by which the CSC commissioners, or for that matter, any of its employees, can constitutionally take themselves out of the ambit of the CSC's no-privacy regulation is if they (1) invoke the doctrine of confidentiality of information, and (2) prove that the information sought to be exempted indeed falls under any of the classes of confidential information adverted to above (or those comparable to them). Sensitivity of content, not rank, justifies enjoyment of this very narrow constitutional privilege.
Accordingly, I vote to DENY the petition.
Endnotes:
1 Presidential Decree No. 1445. Section 4(2) provides in full: "Government funds or property shall be spent or used solely for public purposes."
2 Section 1, Article XI of the Constitution provides: "Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."
3 Section 28, Article II of the Constitution provides: "Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest."
4 Section 27, Article II of the Constitution provides: "The State shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption."
5 The rule under CSC Memorandum No. 10, series of 2002, provides:
No expectation of privacy. Users except the Members of the Commission shall not have expectation of privacy in anything they create, store, send or receive in the computer system.
The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the confidential examination of data and processes.
6 Under Chavez v. Public Estates Authority (G.R. No. 133250, 9 July 2002, 384 SCRA 152, 188), these are also beyond the reach of the constitutional right to information.
7 Constitution, Article IX(B), Section 3.
8 Executive Order No. 292, Book V, Title I, Chapter 3, Section 12(5).
9 Aside from its three commissioners, the CSC has two assistant commissioners and twelve divisions in its central office, including an office for legal affairs. The CSC also maintains 16 regional offices.
10 CSC Memorandum No. 10, series of 2002, enumerates these as its objectives.