Pollo vs. Constantino-David : The Extent of the Right to Privacy of Government Employees

This is NOT good news for government employees.

On October 18, 2011, the Supreme Court promulgated its decision in Pollo vs.Constantino-David, G.R. No. 181881. This case involved a search of an office computer assigned to the petitioner, an employee of the Civil Service Commission Regional Office No. IV (CSC-ROIV). The search was a consequence of an anonymous letter-complaint received by respondent CSC Chairperson alleging that the “chief of the Mamamayan muna hindi mamaya na division” of CSC-ROIV has been lawyering for public officials with pending cases in the CSC. The employee’s personal files stored in the computer, many of which were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals, were used as evidence in the administrative proceedings subsequently initiated against him. 

[To read a digest of this case, please click here.]

The petitioner was eventually dismissed from service by the CSC. The dismissal was affirmed by the Court of Appeals. Before the Supreme Court, the petitioner raised as pivotal issue the validity of the search on his office computer, contending that this violated his right to privacy.

The High Tribunal held that the search, made in relation to an investigation authorized by the CSC Chairperson and which occasioned the copying of petitioner's personal files, is lawful and does not transgress his constitutional right to privacy even if done without his knowledge and consent. 

According to the Court, the petitioner had NO reasonable expectation of privacy in his office and computer files. Moreover, the search authorized by the respondent CSC Chairperson – and the concomitant copying of the contents of the hard drive on petitioner’s office computer – is reasonable in its inception and scope. The Court thus sustained the use of these files in the administrative case against the petitioner, DENIED the petition and AFFIRMED the CSC and the Court of Appeals (CA) in finding the petitioner GUILTY of (1) Dishonesty, (2) Grave Misconduct, (3) Conduct Prejudicial to the Best Interest of the Service, and (4) Violation of Republic Act 6713; and in meting him the penalty of DISMISSAL from service.

Justice Martin S. Villarama wrote the Decision for the Court En Banc.  Fully concurring with him are Chief Justice Renato Corona and Associate Justices Arturo Brion, Diosdado Peralta, Jose Perez, Jose Mendoza, Bienvenido Reyes, and Estela Perlas-Bernabe. Associate Justice Maria Lourdes P.A. Sereno also concurred but “share[d] J. Carpio’s concerns.”

Senior Associate Justice Antonio T. Carpio wrote a Separate Concurring Opinion.  He concurred in the DENIAL of the petition, but asserted a statutory basis for the disposition of the case. He held that 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, which provides that “[g]overnment x x x property shall be x x x used solely for public purposes.” 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.

Justice Carpio however asserted that the CSC office regulation denying CSC employees privacy expectation in “anything they create, store, send, or receive in the computer system,” although valid as to petitioner Briccio Pollo, is constitutionally infirm insofar as [it] 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. The only way by which the CSC commissioners, or for that matter, any of [the CSC] 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. Sensitivity of content, not rank, justifies enjoyment of this very narrow constitutional privilege.

On the other hand, Justice Lucas Bersamin, with whom Associate Justices Presbitero Velasco Jr., Teresita Leonardo-De Castro, and Roberto Abad concurred, wrote a Concurring and Dissenting Opinion. He also voted to DENY the petition and concurred with the majority as regards the petitioner’s administrative liability. He however qualified that the petitioner’s right to privacy should be respected as to the files created, stored, sent or received after office hours. He further qualified that the decision be applied pro hac vice only.

Justice Bersamin held that even without Office Memorandum (OM) No. 10, Series of 2002 being issued by the respondent CSC Chairperson, the CSC employees, including the petitioner, have a reduced expectation of privacy in their workplace.  He however found that the petitioner did not absolutely waive his right to privacy in this case. He noted that OM No. 10 contains an exception giving users, including the petitioner, privileged access to the Internet for knowledge search, information exchange, and others; and has explicitly allowed them to use the computer resources for personal purposes after office hours. Thus, petitioner still had a reasonable expectation of privacy vis-à-vis whatever communications he created, stored, sent, or received after office hours through using the Commission’s computer resources, such that he could rightfully invoke the Constitutional protection to the privacy of these communication and correspondence.

         

Thus, while conceding that respondent David had legal authority and good reasons to issue her order to back up the petitioner’s files as an exercise of her power of supervision, Justice Bersamin did not agree with the Majority’s holding for the confiscation of all the files stored in [petitioner’s] computer. The need to control or prevent activities constitutionally subject to the State’s regulation may not be filled by means that unnecessarily and broadly sweep and thereby invade the area of protected freedoms. For that reason, respondent David’s order to back up petitioner’s files should only cover the files corresponding to communications created, stored, sent, or received during office hours. There will be no difficulty in identifying and segregating the files created, stored, sent, or received during and after office hours with the constant advancement and improvement of technology and the presumed expertise of the Commission’s information systems analysts.