EN BANC

G.R. No. 181881 BRICCIO Ricky A. POLLO, Petitioner, v. CHAIRPERSON KARINA CONSTANTINO-DAVID, et al., Respondents.

Promulgated:

October 18, 2011

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SEPARATE CONCURRING OPINION

CARPIO, J.:

I concur with the Courts 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 CSCs 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 governments 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 CSCs 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 CSCs own transparency regulation is anything x x x create[d], store[d], sen[t], or receive[d] in the commissions 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 CSCs data transparency regulation solely because they are the CSCs highest ranking officers.⁹ This classification fails even the most lenient equal protection analysis. It bears no reasonable connection with the CSC regulations 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 CSCs [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 CSCs 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 CSCs 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.

ANTONIO T. CARPIO

Associate Justice

1 Presidential Decree No. 1445. Section 4(2) provides in full: Government funds or property shall be spent or used solely for public purposes.

2Section 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.

3Section 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.

4Section 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).

9Aside 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.