Pollo v. Constantino-David (G.R. No. 181881; October 18, 2011)

CASE DIGEST: BRICCIO "Ricky" A. POLLO v. KARINA CONSTANTINO-DAVID. G.R. No. 181881; October 18, 2011.
FACTS: Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the"Mamamayan Muna Hindi Mamaya Na" program of the CSC.An unsigned letter-complaint addressed to respondent CSC Chairperson Karina Constantino-David marked "Confidential" was sent through a courier service. Acting upon the letter-complaint,Chairperson David immediately formed a team of four personnel with background in information technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of the CSC Chair.Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get a lawyer.

The contents of the diskettes were examined by the CSCs Office for Legal Affairs (OLA).It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or lettersin connection with administrative cases in the CSC and other tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice.

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed personal files in his computer, and subsequently asking him to submit his comment which violated his right against self-incrimination.He asserted that he had protested the unlawful taking of his computer done while he was on leave, that the files in his computer were his personal files and those of his sister, relatives, friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to privacy and protection against self-incrimination and warrantless search and seizure.

He pointed out that though government property, the temporary use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes.

As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC).In view of the illegal search, the files/documents copied from his computer without his consent is thus inadmissible as evidence, being "fruits of a poisonous tree."

The CSC then issued Resolution No. 070382 finding prima facie case against the petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman, such power pertaining solely to the court. The CSC denied the omnibus motion and resolved to treat the said motion as petitioners answer.

Due to non-existent jurisprudence, the CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading case ofOConnor v. Ortegaas authority for the view that government agencies, in their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the governmental workplace without meeting the "probable cause" or warrant requirement for search and seizure.Another ruling cited by the CSC is the more recent case ofUnited States v. Mark L. Simonswhich declared that the federal agencys computer use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees.

On appeal, the CA dismissed the petition for certiorari after finding no grave abuse of discretion committed by respondents CSC officials.The CA held that: (1) petitioner was not charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and the results thereof yielded aprima faciecase against him; (2) it could not be said that in ordering the back-up of files in petitioners computer and later confiscating the same, Chairperson David had encroached on the authority of a judge in view of the CSC computer policy declaring the computers as government property and that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or receive on the computer system; and (3) there is nothing contemptuous in CSCs act of proceeding with the formal investigation as there was no restraining order or injunction issued by the CA.

ISSUE: Whether or not petitioner is entitled to avail the right to privacy over his computer and electronic files as a government employee.

HELD: Petitioner failed to prove that he had an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files.Petitioner did not allege that he had a separate enclosed office which he did not share with anyone, or that his office was always locked and not open to other employees or visitors.Neither did he allege that he used passwords or adopted any means to prevent other employees from accessing his computer files.On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends, associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial request.

The court made an analysis on the landmark case of OConnor v. Ortega and United States v. Simmons, laying the principle of balancing the right to privacy by an employee against searches made by the employer, who in this case is also the government. According to the Court, OConnor emphasized that "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 agencys work,and ultimately to the public interest."

Care must therefore be made in ensuring that a standard of reasonableness. There must be reasonable grounds present before the exception may be applied such as 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 non-investigatory work-related purpose such as to retrieve a needed file is.

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or by human means.An Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provided for such. This implied therefore, that on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes.

The search of petitioners computer files was conducted in connection with investigation of work-related misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering" for individuals with pending cases in the CSC. A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.

In the remedial law perspective, this case must also be contrasted from Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila (571 SCRA 361) because the latter involves the inspection of a personal computer from which a government employee may expect reasonable privacy with his communications. Petitioners computer is government property and the use of which the CSC has absolute right to regulate and monitor. Therefore, any evidence found on petitioners computer is admissible against him.

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