Pollo vs. David

5/19/2015 SUPREMECOURTREPORTSANNOTATEDVOLUME659

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G.R. No. 181881.October 18, 2011.*

BRICCIO Ricky A. POLLO, petitioner, vs.CHAIRPERSON KARINA CONSTANTINODAVID,DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR IIIENGELBERT ANTHONY D. UNITE AND THE CIVILSERVICE COMMISSION, respondents.

Constitutional Law Bill of Rights Right to Privacy The rightto privacy has been accorded recognition as a facet of the rightprotected by the guarantee against unreasonable search andseizure under Section 2, Article III of the 1987 Constitution.Theright to privacy has been accorded recognition in this jurisdictionas a facet of the right protected by the guarantee againstunreasonable search and seizure under Section 2, Article III ofthe 1987

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* EN BANC.

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Constitution, which provides: Sec. 2. The right of the people to besecure in their persons, houses, papers, and effects againstunreasonable searches and seizures of whatever nature and forany purpose shall be inviolable, and no search warrant or warrantof arrest shall issue except upon probable cause to be determinedpersonally by the judge after examination under oath oraffirmation of the complainant and the witnesses he may produce,and particularly describing the place to be searched and thepersons or things to be seized.

Right to Privacy The Civil Service Commission (CSC) hadimplemented a policy that put its employees on notice that theyhave no expectation of privacy in anything they create, store, sendor receive on the office computers, and that the CSC may monitorthe use of the computer resources using both automated or human



means.The CSC in this case had implemented a policy that putits employees on notice that they have no expectation of privacy inanything they create, store, send or receive on the officecomputers, and that the CSC may monitor the use of thecomputer resources using both automated or human means. Thisimplies that onthespot inspections may be done to ensure thatthe computer resources were used only for such legitimatebusiness purposes.

Same A search by a government employer of an employeesoffice is justified at inception when there are reasonable groundsfor suspecting that it will turn up evidence that the employee isguilty of workrelated misconduct.A search by a governmentemployer of an employees office is justified at inception whenthere are reasonable grounds for suspecting that it will turn upevidence that the employee is guilty of workrelated misconduct.Thus, in the 2004 case decided by the US Court of Appeals EighthCircuit, it was held that where a government agencys computeruse policy prohibited electronic messages with pornographiccontent and in addition expressly provided that employees do nothave any personal privacy rights regarding their use of the agencyinformation systems and technology, the government employeehad no legitimate expectation of privacy as to the use andcontents of his office computer, and therefore evidence foundduring warrantless search of the computer was admissible inprosecution for child pornography. In that case, the defendantemployees computer hard drive was first remotely examined by acomputer information technician after his supervisor receivedcomplaints that he was inaccessible and had copied anddistributed nonworkrelated email messages throughout theoffice. When the supervisor confirmed that defendant had usedhis computer to access the prohibited websites, in contravention ofthe express policy of the agency, his computer tower and floppy

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disks were taken and examined. A formal administrativeinvestigation ensued and later search warrants were secured bythe police department. The initial remote search of the hard driveof petitioners computer, as well as the subsequent warrantlesssearches was held as valid under the OConnor ruling that apublic employer can investigate workrelated misconduct so longas any search is justified at inception and is reasonably related inscope to the circumstances that justified it in the first place.

Civil Procedure Appeals Substantial Evidence Wellsettled is



the rule that the findings of fact of quasijudicial agencies, like theCivil Service Commission (CSC), are accorded not only respect buteven finality if such findings are supported by substantialevidence.Wellsettled is the rule that the findings of fact ofquasijudicial agencies, like the CSC, are accorded not onlyrespect but even finality if such findings are supported bysubstantial evidence. Substantial evidence is such amount ofrelevant evidence which a reasonable mind might accept asadequate to support a conclusion, even if other equally reasonableminds might conceivably opine otherwise.

CARPIO,J., Separate Concurring Opinion:

Right to Privacy View that the Civil Service Commission(CSC) regulation declaring a noprivacy expectation on the use ofgovernmentowned computers logically follows from the statutoryrule that governmentowned property shall be used solely for apublic purpose.Any private use of a government property, likea governmentowned computer, is prohibited by law.Consequently, a government employee cannot expect any privacywhen he uses a governmentowned computer because he knows hecannot use the computer for any private purpose. The CSCregulation declaring a noprivacy expectation on the use ofgovernmentowned computers logically follows from the statutoryrule that governmentowned property shall be used solely for apublic purpose.

Same View that the Civil Service Commission (CSC) officeregulation denying CSC employees privacy expectation inanything they create, store, send, or receive in the computersystem is constitutionally infirm insofar as the regulationexcludes from its ambit the three CSC commissioners solely byreason of their rank, and not by reason of the confidential natureof the electronic data they generate.The CSC office regulationdenying CSC employees privacy expectation in anything theycreate, store, send, or receive in the computer system, althoughvalid as to petitioner Briccio Pollo, is constitutionally infirminsofar as the regulation excludes from its ambit the three

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CSC commissioners solely by reason of their rank, and not byreason of the confidential nature of the electronic data theygenerate.

Bersamin,J., Concurring and Dissenting Opinion:

Right to Privacy View that the right to privacy involved



herein is the petitioners right to informational privacy in hisworkplace, specifically his right to work freely without surveillanceor intrusion.At the outset, I state that the right to privacyinvolved herein is the petitioners right to informational privacyin his workplace, specifically his right to work freely withoutsurveillance or intrusion.

Same View that even without Office Memorandum (OM) No.10, Series of 2002 being issued by respondent Karina ConstantinoDavid as Chairman of the Civil Service Commission, theemployees of the Commission have a reduced expectation of privacyin the workplace.Even without Office Memorandum (OM) No.10, Series of 2002 being issued by respondent KarinaConstantinoDavid as Chairman of the Civil Service Commission,the employees of the Commission, including the petitioner, have areduced expectation of privacy in the workplace. The objective ofthe issuance of OM No. 10 has been only to formally inform andmake aware the employees of the Commission about thelimitations on their privacy while they are in the workplace andto advise them that the Commission has legitimate reasons tomonitor communications made by them, electronically or not.

Same View that the petitioner is entitled to a reasonableexpectation of privacy in respect of the communications created,stored, sent, or received after office hours through the officecomputer, as to which he must be protected.I hold, instead, thatthe petitioner is entitled to a reasonable expectation of privacy inrespect of the communications created, stored, sent, or receivedafter office hours through the office computer, as to which he mustbe protected.

Same View that the validity of the seizure of the files shouldbe limited to the need for determining whether or not the petitionerunjustly utilized official resources of the Commission for personalpurposes, and should not extend to the reading of the filescontents, which would be violative of his right to privacy.Thus, Ivote to uphold the legality of OM No. 10. I hasten to add, to bevery clear, that the validity of the seizure of the files should belimited to the need for determining whether or not the petitionerunjustly utilized official resources of the Commission for personalpurposes, and

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should not extend to the reading of the files contents, whichwould be violative of his right to privacy.

Same View that although the right to privacy is referred to as



a right to be enjoyed by the people, the State cannot just sit backand stand aside when, in the exercise of his right to privacy, theindividual perilously tilts the scales to the detriment of thenational interest.I adhere to the principle that every man isbelieved to be free. Freedom gears a man to move aboutunhampered and to speak out from conviction. That is why theright to privacy has earned its worthy place in the Bill of Rights.However, although the right to privacy is referred to as a right tobe enjoyed by the people, the State cannot just sit back and standaside when, in the exercise of his right to privacy, the individualperilously tilts the scales to the detriment of the national interest.

Same View that the ruling about the decreased expectation ofprivacy in the workplace may generate an unwanted implicationfor employers in general to henceforth consider themselvesauthorized, without risking a collision with the Constitutionallyprotected right to privacy, to probe and pry into communicationsmade during work hours by their employees through the use oftheir computers and other digital instruments of communication.I apprehend that the ruling about the decreased expectation ofprivacy in the workplace may generate an unwanted implicationfor employers in general to henceforth consider themselvesauthorized, without risking a collision with the Constitutionallyprotected right to privacy, to probe and pry into communicationsmade during work hours by their employees through the use oftheir computers and other digital instruments of communication.Thus, the employers may possibly begin to monitor theiremployees phone calls, to screen incoming and outgoing emails,to capture queries made through any of the Internets efficientsearch engines (like Google), or to censor visited websites (likeYahoo!, Facebook or Twitter) in the avowed interest of ensuringproductivity and supervising use of business resources. That willbe unfortunate.

Same View that a recognition of the limitations of man as abeing needful of some extent of rest, and of some degree of personalspace even during work hours, is most essential in order to fullymaximize the potential by which his services was obtained in thefirst place.Although the interests of capital or public service domerit protection, a recognition of the limitations of man as a beingneedful of some extent of rest, and of some degree of personalspace even during work hours, is most essential in order to fullymaximize the potential by which his services was obtained in thefirst place. The job should not own him the whole time he is in theworkplace. Even while he remains in the workplace, he must beallowed to preserve his own identity, to



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maintain an inner self, to safeguard his beliefs, and to keepcertain thoughts, judgments and desires hidden.

PETITION for review on certiorari of the decision andresolution of the Court of Appeals.

The facts are stated in the opinion of the Court. Ponciano R. Solosa for petitioner.

VILLARAMA, JR.,J.:This case involves a search of office computer assigned

to a government employee who was chargedadministratively and eventually dismissed from theservice. The employees personal files stored in thecomputer were used by the government employer asevidence of misconduct.

Before us is a petition for review on certiorari underRule 45 which seeks to reverse and set aside the Decision1dated October 11, 2007 and Resolution2 dated February 29,2008 of the Court of Appeals (CA). The CA dismissed thepetition for certiorari (CAG.R. SP No. 98224) filed bypetitioner Briccio Ricky A. Pollo to nullify the proceedingsconducted by the Civil Service Commission (CSC) whichfound him guilty of dishonesty, grave misconduct, conductprejudicial to the best interest of the service, and violationof Republic Act (R.A.) No. 6713 and penalized him withdismissal.

The factual antecedents:Petitioner is a former Supervising Personnel Specialist

of the CSC Regional Office No. IV and also the OfficerinCharge of the Public Assistance and Liaison Division(PALD) under the Mamamayan Muna Hindi Mamaya Naprogram of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsignedlettercomplaint addressed to respondent CSC ChairpersonKarina Con

_______________1 Rollo, pp. 6383. Penned by Associate Justice Romeo F. Barza, with

Associate Justices Mariano C. Del Castillo (now a Member of this Court)and Arcangelita M. RomillaLontok concurring.

2 Id., at p. 85.



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stantinoDavid which was marked Confidential and sentthrough a courier service (LBC) from a certain Alan SanPascual of Bagong Silang, Caloocan City, was received bythe Integrated Records Management Office (IRMO) at theCSC Central Office. Following office practice in whichdocuments marked Confidential are left unopened andinstead sent to the addressee, the aforesaid letter wasgiven directly to Chairperson David.

The lettercomplaint reads:

The ChairwomanCivil Service CommissionBatasan Hills, Quezon CityDear 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 youragency to be a lawyer of an accused govt employee having apending case in the CSC. I honestly think this is a violation of lawand unfair to others and your office.

I have known that a person have been lawyered by one of yourattorny in the region 4 office. He is the chief of the Mamamayanmuna hindi mamaya na division. He have been helping many whohave pending cases in the CSC. The justice in our govt system willnot be served if this will continue. Please investigate this anomalybecause our perception of your clean and good office is beingtainted.

Concerned Govt employee3

Chairperson David immediately formed a team of fourpersonnel with background in information technology (IT),and issued a memo directing them to conduct aninvestigation and specifically to back up all the files in thecomputers found in the Mamamayan Muna (PALD) andLegal divisions.4 After some briefing, the team proceededat once to the CSCROIV office at Panay Avenue, QuezonCity. Upon their arrival thereat around 5:30 p.m., the teaminformed the

_______________3 Id., at p. 306.4 Id., at p. 305.



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officials of the CSCROIV, respondents Director IV LydiaCastillo (Director Castillo) and Director III Engelbert Unite(Director Unite) of Chairperson Davids directive.

The backingup of all files in the hard disk of computersat the PALD and Legal Services Division (LSD) waswitnessed by several employees, together with DirectorsCastillo and Unite who closely monitored said activity. Ataround 6:00 p.m., Director Unite sent text messages topetitioner and the head of LSD, who were both out of theoffice at the time, informing them of the ongoing copying ofcomputer files in their divisions upon orders of the CSCChair. The text messages received by petitioner read:

Gud p.m. This is Atty. Unite FYI: Co people are going over thePCs of PALD and LSD per instruction of the Chairman. If you canmake it here now it would be better.All PCs Of PALD and LSD are being backed up per memo of thechair.CO IT people arrived just now for this purpose. We were not alsoinformed about this.We cant do anything about it its a directive from chair.Memo of the chair was referring to an anonymous complaint illsend a copy of the memo via mms5

Petitioner replied also thru text message that he wasleaving the matter to Director Unite and that he will justget a lawyer. Another text message received by petitionerfrom PALD staff also reported the presence of the teamfrom CSC main office: Sir may mga taga C.O. daw sakuarto natin.6 At around 10:00 p.m. of the same day, theinvestigating team finished their task. The next day, all thecomputers in the PALD were sealed and secured for thepurpose of preserving all the files stored therein. Severaldiskettes containing the backup files sourced from thehard disk of PALD and LSD computers were turned over toChairperson David. The contents of the diskettes wereexamined by the CSCs Office for Legal Affairs (OLA). Itwas

_______________5 CA Rollo, p. 56.6 Id.



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found that most of the files in the 17 diskettes containingfiles copied from the computer assigned to and being usedby the petitioner, numbering about 40 to 42 documents,were draft pleadings or letters7 in connection withadministrative cases in the CSC and other tribunals. Onthe basis of this finding, Chairperson David issued theShowCause Order8 dated January 11, 2007, requiring thepetitioner, who had gone on extended leave, to submit hisexplanation or counteraffidavit within five days fromnotice.

Evaluating the subject documents obtained frompetitioners personal files, Chairperson David made thefollowing observations:

Most of the foregoing files are drafts of legal pleadings ordocuments that are related to or connected with administrativecases that may broadly be lumped as pending either in theCSCRO No. IV, the CSCNCR, the CSCCentral Office or othertribunals. It is also of note that most of these draft pleadings arefor and on behalves of parties, who are facing charges asrespondents in administrative cases. This gives rise to theinference that the one who prepared them was knowingly,deliberately and willfully aiding and advancing interests adverseand inimical to the interest of the CSC as the central personnelagency of the government tasked to discipline misfeasance andmalfeasance in the government service. The number of pleadingsso prepared further demonstrates that such person is not merelyengaged in an isolated practice but pursues it with seemingregularity. It would also be the height of naivete or credulity, andcertainly against common human experience, to believe that theperson concerned had engaged in this customary practice withoutany consideration, and in fact, one of the retrieved files (item 13above) appears to insinuate the collection of fees. That these draftpleadings were obtained from the computer assigned to Polloinvariably raises the presumption that he was the one responsibleor had a hand in their drafting or preparation since the computerof origin was within his direct control and disposition.9

Petitioner filed his Comment, denying that he is theperson referred to in the anonymous lettercomplaint whichhad no attachments to it, because he is not a lawyer andneither is he lawyering



_______________7 Id., at pp. 2124.8 Id., at pp. 2025.9 Id., at p. 25.

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for people with cases in the CSC. He accused CSC officialsof conducting a fishing expedition when they unlawfullycopied and printed personal files in his computer, andsubsequently asking him to submit his comment whichviolated his right against selfincrimination. He assertedthat he had protested the unlawful taking of his computerdone while he was on leave, citing the letter dated January8, 2007 in which he informed Director Castillo that the filesin his computer were his personal files and those of hissister, relatives, friends and some associates and that he isnot authorizing their sealing, copying, duplicating andprinting as these would violate his constitutional right toprivacy and protection against selfincrimination andwarrantless search and seizure. He pointed out that thoughgovernment property, the temporary use and ownership ofthe computer issued under a Memorandum of Receipt (MR)is ceded to the employee who may exercise all attributes ofownership, including its use for personal purposes. As tothe anonymous letter, petitioner argued that it is notactionable as it failed to comply with the requirements of aformal complaint under the Uniform Rules onAdministrative Cases in the Civil Service (URACC). Inview of the illegal search, the files/documents copied fromhis computer without his consent is thus inadmissible asevidence, being fruits of a poisonous tree.10

On February 26, 2007, the CSC issued Resolution No.07038211 finding prima facie case against the petitionerand charging him with Dishonesty, Grave Misconduct,Conduct Prejudicial to the Best Interest of the Service andViolation of R.A. No. 6713 (Code of Conduct and EthicalStandards for Public Officials and Employees). Petitionerwas directed to submit his answer under oath within fivedays from notice and indicate whether he elects a formalinvestigation. Since the charges fall under Section 19 of theURACC, petitioner was likewise placed under 90 dayspreventive suspension effective immediately

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10 Id., at pp. 5562.11 Id., at pp. 2633. Chairperson Karina ConstantinoDavid and

Commissioner Mary Ann Z. FernandezMendoza concurred in ruling thata prima facie case existed against petitioner while Commissioner Cesar D.Buenaflor dissented [see Memorandum (OCOMC Memo No. 14, s. 2007,CA Rollo, pp. 431434).

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upon receipt of the resolution. Petitioner received a copy ofResolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (ForReconsideration, to Dismiss and/or to Defer) assailing theformal charge as without basis having proceeded from anillegal search which is beyond the authority of the CSCChairman, such power pertaining solely to the court.Petitioner reiterated that he never aided any people withpending cases at the CSC and alleged that those files foundin his computer were prepared not by him but by certainpersons whom he permitted, at one time or another, tomake use of his computer out of close association orfriendship. Attached to the motion were the affidavit ofAtty. Ponciano R. Solosa who entrusted his own files to bekept at petitioners CPU and Atty. Eric N. Estrellado, thelatter being Atty. Solosas client who attested thatpetitioner had nothing to do with the pleadings or bill forlegal fees because in truth he owed legal fees to Atty.Solosa and not to petitioner. Petitioner contended that thecase should be deferred in view of the prejudicial questionraised in the criminal complaint he filed before theOmbudsman against Director Buensalida, whom petitionerbelieves had instigated this administrative case. He alsoprayed for the lifting of the preventive suspension imposedon him. In its Resolution No. 07051912 dated March 19,2007, the CSC denied the omnibus motion. The CSCresolved to treat the said motion as petitioners answer.

On March 14, 2007, petitioner filed an Urgent Petition13under Rule 65 of the Rules of Court, docketed as CAG.R.SP No. 98224, assailing both the January 11, 2007 ShowCause Order and Resolution No. 070382 dated February26, 2007 as having been issued with grave abuse ofdiscretion amounting to excess or total absence ofjurisdiction. Prior to this, however, petitioner lodged anadministrative/criminal complaint against respondentsDirectors Racquel D.G. Buensalida (Chief of Staff, Office of



the CSC Chairman) and Lydia A.

_______________12 CSC records, pp. 71l to 71n. Chairperson Karina Constantino

David and Commissioner Mary Ann Z. FernandezMendoza concurred inthe denial of the omnibus motion while Commissioner Cesar D. Buenaflorreiterated his dissent.

13 CA Rollo, pp. 219.

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Castillo (CSCRO IV) before the Office of the Ombudsman,and a separate complaint for disbarment against DirectorBuensalida.14

On April 17, 2007, petitioner received a notice of hearingfrom the CSC setting the formal investigation of the caseon April 30, 2007. On April 25, 2007, he filed in the CA anUrgent Motion for the issuance of TRO and preliminaryinjunction.15 Since he failed to attend the prehearingconference scheduled on April 30, 2007, the CSC reset thesame to May 17, 2007 with warning that the failure ofpetitioner and/or his counsel to appear in the said prehearing conference shall entitle the prosecution to proceedwith the formal investigation exparte.16 Petitioner movedto defer or to reset the prehearing conference, claimingthat the investigation proceedings should be held inabeyance pending the resolution of his petition by the CA.The CSC denied his request and again scheduled the prehearing conference on May 18, 2007 with similar warningon the consequences of petitioner and/or his counsels nonappearance.17 This prompted petitioner to file anothermotion in the CA, to cite the respondents, including thehearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No.07113419 denying petitioners motion to set aside the denialof his motion to defer the proceedings and to inhibit thedesignated hearing officer, Atty. Bernard G. Jimenez. Thehearing officer was directed to proceed with theinvestigation proper with dispatch.

_______________14 Id., at pp. 288294, 321325.15 Id., at pp. 336340.16 Id., at p. 373.



17 Id., at pp. 376378.18 Id., at pp. 388392.19 Id., at pp. 457463. Chairperson Karina ConstantinoDavid and

Commissioner Mary Ann Z. FernandezMendoza concurred in denying themotion while Commissioner Cesar D. Buenaflor dissented stating thatbased on his dissenting position, any subsequent proceedings in this caseis of no moment since the initiatory proceedings was in violation of apersons fundamental rights enshrined in the Bill of Rights of theConstitution. (Id., at p. 465.)

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In view of the absence of petitioner and his counsel, andupon the motion of the prosecution, petitioner was deemedto have waived his right to the formal investigation whichthen proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No.071420,20 the dispositive part of which reads:

WHEREFORE, foregoing premises considered, theCommission hereby finds Briccio A. Pollo, a.k.a. Ricky A. PolloGUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial tothe Best Interest of the Service and Violation of Republic Act6713. He is meted the penalty of DISMISSAL FROM THESERVICE with all its accessory penalties, namely,disqualification to hold public office, forfeiture of retirementbenefits, cancellation of civil service eligibilities and bar fromtaking future civil service examinations.21

On the paramount issue of the legality of the searchconducted on petitioners computer, the CSC noted thedearth of jurisprudence relevant to the factual milieu ofthis case where the government as employer invades theprivate files of an employee stored in the computerassigned to him for his official use, in the course of initialinvestigation of possible misconduct committed by saidemployee and without the latters consent or participation.The CSC thus turned to relevant rulings of the UnitedStates Supreme Court, and cited the leading case ofOConnor v. Ortega22 as authority for the view thatgovernment agencies, in their capacity as employers,rather than law enforcers, could validly conduct search andseizure in the governmental workplace without meeting theprobable cause or warrant requirement for search andseizure. Another ruling cited by the CSC is the more recentcase of United States v. Mark L. Simons23 which declared



that the federal agencys computer use policy foreclosedany inference of reasonable expectation of privacy on thepart of its em

_______________20 Id., at pp. 586618. Chairperson Karina ConstantinoDavid and

Commissioner Mary Ann Z. FernandezMendoza concurred in ruling thatpetitioner is guilty as charged while Commissioner Cesar D. Buenaflormaintained his dissent.

21 Id., at p. 618.22 480 U.S. 709 (1987).23 206 F.3d 392 (4th Cir. 2000).

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ployees. Though the Court therein recognized that suchpolicy did not, at the same time, erode the respondentslegitimate expectation of privacy in the office in which thecomputer was installed, still, the warrantless search of theemployees office was upheld as valid because agovernment employer is entitled to conduct a warrantlesssearch pursuant to an investigation of workrelatedmisconduct provided the search is reasonable in itsinception and scope.

With the foregoing American jurisprudence asbenchmark, the CSC held that petitioner has no reasonableexpectation of privacy with regard to the computer he wasusing in the regional office in view of the CSC computer usepolicy which unequivocally declared that a CSC employeecannot assert any privacy right to a computer assigned tohim. Even assuming that there was no such administrativepolicy, the CSC was of the view that the search ofpetitioners computer successfully passed the test ofreasonableness for warrantless searches in the workplaceas enunciated in the aforecited authorities. The CSCstressed that it pursued the search in its capacity asgovernment employer and that it was undertaken inconnection with an investigation involving workrelatedmisconduct, which exempts it from the warrantrequirement under the Constitution. With the matter ofadmissibility of the evidence having been resolved, the CSCthen ruled that the totality of evidence adequately supportsthe charges of grave misconduct, dishonesty, conductprejudicial to the best interest of the service and violationof R.A. No. 6713 against the petitioner. These grave



infractions justified petitioners dismissal from the servicewith all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner movedto incorporate the above resolution dismissing him from theservice in his main petition, in lieu of the filing of an appealvia a Rule 43 petition. In a subsequent motion, he likewiseprayed for the inclusion of Resolution No. 07180025 whichdenied his motion for reconsideration.

_______________24 Id., at pp. 560585.25 Id., at pp. 707719. Chairperson Karina ConstantinoDavid and

Commissioner Mary Ann Z. FernandezMendoza concurred in the denialof the motion for reconsideration while Commissioner Cesar D. Buenaflorreit

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By Decision dated October 11, 2007, the CA dismissedthe petition for certiorari after finding no grave abuse ofdiscretion committed by respondents CSC officials. The CAheld that: (1) petitioner was not charged on the basis of theanonymous letter but from the initiative of the CSC after afactfinding investigation was conducted and the resultsthereof yielded a prima facie case against him (2) it couldnot be said that in ordering the backup of files inpetitioners computer and later confiscating the same,Chairperson David had encroached on the authority of ajudge in view of the CSC computer policy declaring thecomputers as government property and that employeeusers thereof have no reasonable expectation of privacy inanything they create, store, send, or receive on thecomputer system and (3) there is nothing contemptuous inCSCs act of proceeding with the formal investigation asthere was no restraining order or injunction issued by theCA.

His motion for reconsideration having been denied bythe CA, petitioner brought this appeal arguing that

ITHE HONORABLE COURT OF APPEALS GRIEVOUSLYERRED AND COMMITTED SERIOUS IRREGULARITY ANDBLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSEOF DISCRETION WHEN IT RULED THAT ANONYMOUSCOMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN



TRUTH AND IN FACT THE CONTRARY IS EXPLICITLYPROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSCRESOLUTION NO. 991936, WHICH IS AN [AMENDMENT] TOTHE ORIGINAL RULES PER CSC RESOLUTION NO. 940521

IITHE HONORABLE COURT GRIEVOUSLY ERRED ANDCOMMITTED PALPABLE ERRORS IN LAW AMOUNTING TOGRAVE ABUSE OF DISCRETION WHEN IT RULED THATPETITIONER CANNOT INVOKE HIS RIGHT TO PRIVACY, TOUNREASONABLE SEARCH AND SEIZURE, AGAINST SELFINCRIMINATION, BY VIRTUE OF OFFICE MEMORANDUMNO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED

_______________erated his dissent under his Addendum to the Dissenting Position Under

OCOMC Memo No. 14, S. 2007. (Id., at p. 720.)

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SOLELY AND EXCLUSIVELY BY RESPONDENT DAVID ANDNOT BY THE COLLEGIAL COMMISSION CONSIDERINGTHAT POLICY MATTERS INVOLVING SUB[S]TANTIALRIGHTS CANNOT BE COVERED BY AN OFFICEMEMORANDUM WHICH IS LIMITED TO PROCEDURAL ANDROUTINARY INSTRUCTION

IIITHE HONORABLE COURT GRAVELY ERRED ANDCOMMITTED GRAVE ABUSE OF DISCRETION WHEN ITRULED THAT MEMO SEARCH DATED JANUARY 3, 2007 ANDTHE TAKING OF DOCUMENTS IN THE EVENING THEREOFFROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OFDISCRETION LIMITING THE DEFINITION [OF] GRAVEABUSE OF DISCRETION TO ONE INVOLVING AND TAINTEDWITH PERSONAL HOSTILITY. IT LIKEWISE ERRED INHOLDING THAT DATA STORED IN THE GOVERNMENTCOMPUTERS ARE GOVERNMENT PROPERTIES INCLUDINGTHE PERSONAL FILES WHEN THE CONTRARY ISPROVIDED UNDER SECTION 14 OF OM. 10 s. 2002. ANDGRIEVOUSLY ERRED STILL WHEN IT RULED THATRESPONDENT DAVID BY VIRTUE OF O.M. 10 DID NOTENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGEPURSUANT TO ARTICLE III, SECTION 2 OF THE 1987PHILIPPINE CONSTITUTION

IVTHE HONORABLE COURT ERRED WHEN IT FAILED TO



CONSIDER ALL OTHER NEW ARGUMENTS, ADDITIONALEVIDENCE HEREUNTO SUBMITTED AS WELL AS ITSFAILURE TO EVALUATE AND TAKE ACTION ON THE 2MOTIONS TO ADMIT AND INCORPORATE CSCRESOLUTION NOS. 071420 DATED JULY 24, 2007 AND CSCRESOLUTION 071800 DATED SEPTEMBER 10, 2007. IT DIDNOT RULE LIKEWISE ON THE FOUR URGENT MOTION TORESOLVE ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of thesearch conducted on his office computer and the copying ofhis personal files without his knowledge and consent,alleged as a transgression on his constitutional right toprivacy.

The right to privacy has been accorded recognition inthis jurisdiction as a facet of the right protected by theguarantee against unrea

_______________26 Rollo, p. 19.

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sonable search and seizure under Section 2, Article III ofthe 1987 Constitution,27 which provides:

Sec.2.The right of the people to be secure in their persons,houses, papers, and effects against unreasonable searches andseizures of whatever nature and for any purpose shall beinviolable, and no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined personally by thejudge after examination under oath or affirmation of thecomplainant and the witnesses he may produce, and particularlydescribing the place to be searched and the persons or things to beseized.

The constitutional guarantee is not a prohibition of allsearches and seizures but only of unreasonable searchesand seizures.28 But to fully understand this concept andapplication for the purpose of resolving the issue at hand, itis essential that we examine the doctrine in the light ofpronouncements in another jurisdiction. As the Courtdeclared in People v. Marti:29

Our present constitutional provision on the guarantee againstunreasonable 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 searchesand seizures shall not be violated, and no warrants shallissue but upon probable cause, to be determined by thejudge after examination under oath or affirmation of thecomplainant and the witnesses he may produce, andparticularly describing the place to be searched, and thepersons or things to be seized. (Sec. 1[3], Article III)

was in turn derived almost verbatim from the FourthAmendment to the United States Constitution. As such, the Courtmay turn to the pronounce

_______________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: ACOMMENTARY, 2003 ed., p. 162.

29 G.R. No. 81561, January 18, 1991, 193 SCRA 57.

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ments of the United States Federal Supreme Court and StateAppellate Courts which are considered doctrinal in thisjurisdiction.30

In the 1967 case of Katz v. United States,31 the USSupreme Court held that the act of FBI agents inelectronically recording a conversation made by petitionerin an enclosed public telephone booth violated his right toprivacy and constituted a search and seizure. Because thepetitioner had a reasonable expectation of privacy in usingthe enclosed booth to make a personal telephone call, theprotection of the Fourth Amendment extends to such area.In the concurring opinion of Mr. Justice Harlan, it wasfurther noted that the existence of privacy right underprior decisions involved a twofold requirement: first, that aperson has exhibited an actual (subjective) expectation ofprivacy and second, that the expectation be one thatsociety is prepared to recognize as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonableexpectations of private employees in the workplace, the USSupreme Court held that a union employee had FourthAmendment rights with regard to an office at unionheadquarters that he shared with other union officials,



even as the latter or their guests could enter the office. TheCourt thus recognized that employees may have areasonable expectation of privacy against intrusions bypolice.

That the Fourth Amendment equally applies to agovernment workplace was addressed in the 1987 case ofOConnor v. Ortega34 where a physician, Dr. Magno Ortega,who was employed by a state hospital, claimed a violationof his Fourth Amendment rights when hospital officialsinvestigating charges of mismanagement of the psychiatricresidency program, sexual harassment of female hospitalemployees and other irregularities involving his privatepatients under the state medical aid program, searched hisoffice and seized personal items from his desk and filingcabinets. In that case, the

_______________30 Id., at p. 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.

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Court categorically declared that [i]ndividuals do not loseFourth Amendment rights merely because they work forthe government instead of a private employer.35 Aplurality of four Justices concurred that the correctanalysis has two steps: first, because some governmentoffices may be so open to fellow employees or the publicthat no expectation of privacy is reasonable, a court mustconsider [t]he operational realities of the workplace inorder to determine whether an employees FourthAmendment rights are implicated and next, where anemployee has a legitimate privacy expectation, anemployers intrusion on that expectation fornoninvestigatory, workrelated purposes, as well as forinvestigations of workrelated misconduct, should bejudged by the standard of reasonableness under all thecircumstances.36

On the matter of government employees reasonableexpectations of privacy in their workplace, OConnorteaches:



x x x Public employees expectations of privacy in their offices,desks, and file cabinets, like similar expectations of employees inthe private sector, may be reduced by virtue of actual officepractices and procedures, or by legitimate regulation. x x x Theemployees expectation of privacy must be assessed in the contextof the employment relation. An office is seldom a private enclavefree from entry by supervisors, other employees, and business andpersonal invitees. Instead, in many cases offices are continuallyentered by fellow employees and other visitors during theworkday for conferences, consultations, and other workrelatedvisits. Simply put, it is the nature of government offices thatotherssuch as fellow employees, supervisors, consensualvisitors, and the general publicmay have frequent access to anindividuals office. We agree with JUSTICE SCALIA that[c]onstitutional protection against unreasonable searches by thegovernment does not disappear merely because the governmenthas the right to make reasonable intrusions in its capacity asemployer, x x x but some government offices may be so opento fellow employees or the public that no expectation ofprivacy is reasonable. x x x Given the great variety of workenvironments in the public sector, the question of whetheran employee has

_______________35 Id., at p. 717.36 City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, U.S. 2010, June 17, 2010.

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a reasonable expectation of privacy must be addressed ona casebycase basis.37(Citations omitted emphasis supplied.)

On the basis of the established rule in previous cases,the US Supreme Court declared that Dr. Ortegas FourthAmendment rights are implicated only if the conduct of thehospital officials infringed an expectation of privacy thatsociety is prepared to consider as reasonable. Given theundisputed evidence that respondent Dr. Ortega did notshare his desk or file cabinets with any other employees,kept personal correspondence and other private items inhis own office while those workrelated files (on physiciansin residency training) were stored outside his office, andthere being no evidence that the hospital had establishedany reasonable regulation or policy discouraging employeesfrom storing personal papers and effects in their desks orfile cabinets (although the absence of such a policy does not



create any expectation of privacy where it would nototherwise exist), the Court concluded that Dr. Ortega has areasonable expectation of privacy at least in his desk andfile cabinets.38

Proceeding to the next inquiry as to whether the searchconducted by hospital officials was reasonable, theOConnor plurality decision discussed the followingprinciples:

Having determined that Dr. Ortega had a reasonableexpectation of privacy in his office, the Court of Appeals simplyconcluded without discussion that the searchwas not areasonable search under the fourth amendment. x x x [t]o holdthat the Fourth Amendment applies to searches conducted by[public employers] is only to begin the inquiry into the standardsgoverning such searches[W]hat is reasonable depends on thecontext within which a search takes place. x x x Thus, we mustdetermine the appropriate standard of reasonableness applicableto the search. A determination of the standard of reasonablenessapplicable to a particular class of searches requires balanc[ing]the nature and quality of the intrusion on the individuals FourthAmendment interests against the importance of the governmentalinterests alleged to justify the intrusion. x x x In the case ofsearches conducted by a public employer, we must balancethe invasion of the

_______________37 Supra note 22 at pp. 717718.38 Id., at pp. 718719.

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employees legitimate expectations of privacy against thegovernments need for supervision, control, and theefficient operation of the workplace.

x x x xIn our view, requiring an employer to obtain a warrant

whenever the employer wished to enter an employees office, desk,or file cabinets for a workrelated purpose would seriously disruptthe routine conduct of business and would be unduly burdensome.Imposing unwieldy warrant procedures in such cases uponsupervisors, who would otherwise have no reason to be familiarwith such procedures, is simply unreasonable. In contrast to othercircumstances in which we have required warrants, supervisors inoffices such as at the Hospital are hardly in the business ofinvestigating the violation of criminal laws. Rather, workrelated



searches are merely incident to the primary business of theagency. Under these circumstances, the imposition of a warrantrequirement would conflict with the commonsense realizationthat government offices could not function if every employmentdecision became a constitutional matter. x x x

x x x xThe governmental interest justifying workrelated intrusions

by public employers is the efficient and proper operation of theworkplace. Government agencies provide myriad services to thepublic, and the work of these agencies would suffer if employerswere required to have probable cause before they entered anemployees desk for the purpose of finding a file or piece of officecorrespondence. Indeed, it is difficult to give the concept ofprobable cause, rooted as it is in the criminal investigatorycontext, much meaning when the purpose of a search is to retrievea file for workrelated reasons. Similarly, the concept of probablecause has little meaning for a routine inventory conducted bypublic employers for the purpose of securing state property. x x xTo ensure the efficient and proper operation of the agency,therefore, public employers must be given wide latitude to enteremployee offices for workrelated, noninvestigatory reasons.

We come to a similar conclusion for searches conductedpursuant to an investigation of workrelated employeemisconduct. Even when employers conduct an investigation, theyhave an interest substantially different from the normal need forlaw enforcement. x x x Public employers have an interest inensuring that their agencies operate in an effective and efficientmanner, and the work of these agencies inevitably suffers fromthe inefficiency, incompetence, mismanagement, or other workrelated misfeasance of its employees. Indeed, in many cases,public employees are entrusted with tre

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mendous responsibility, and the consequences of their misconductor incompetence to both the agency and the public interest can besevere. In contrast to law enforcement officials, therefore, publicemployers are not enforcers of the criminal law instead, publicemployers have a direct and overriding interest in ensuring thatthe work of the agency is conducted in a proper and efficientmanner. In our view, therefore, a probable cause requirementfor searches of the type at issue here would imposeintolerable burdens on public employers. The delay incorrecting the employee misconduct caused by the needfor probable cause rather than reasonable suspicion will



be translated into tangible and often irreparable damageto the agencys work, and ultimately to the public interest.x x x

x x x xIn sum, we conclude that the special needs, beyond the

normal need for law enforcement make theprobablecause requirement impracticable, x x x for legitimate,workrelated noninvestigatory intrusions as well asinvestigations of workrelated misconduct. A standard ofreasonableness will neither unduly burden the efforts ofgovernment employers to ensure the efficient and properoperation of the workplace, nor authorize arbitrary intrusionsupon the privacy of public employees. We hold, therefore, thatpublic employer intrusions on the constitutionallyprotected privacy interests of government employees fornoninvestigatory, workrelated purposes, as well as forinvestigations of workrelated misconduct, should bejudged by the standard of reasonableness under all thecircumstances. Under this reasonableness standard, both theinception and the scope of the intrusion must bereasonable:

Determining the reasonableness of any search involves atwofold inquiry: first, one must consider whether theaction was justified at its inception, x x x second, one mustdetermine whether the search as actually conducted wasreasonably related in scope to the circumstances whichjustified the interference in the first place, x x x

Ordinarily, a search of an employees office by asupervisor will be justified at its inception when thereare reasonable grounds for suspecting that the search willturn up evidence that the employee is guilty of workrelated misconduct, or that the search is necessary for anoninvestigatory workrelated purpose such as to retrieve aneeded file. x x x The search will be permissible in its scopewhen the measures adopted are reasonably related to theobjectives of the search

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and not excessively intrusive in light of the nature of the[misconduct]. x x x39 (Citations omitted emphasis supplied.)

Since the District Court granted summary judgmentwithout a hearing on the factual dispute as to the characterof the search and neither was there any finding made as tothe scope of the search that was undertaken, the case was



remanded to said court for the determination of thejustification for the search and seizure, and evaluation ofthe reasonableness of both the inception of the search andits scope.

In OConnor the Court recognized that special needsauthorize warrantless searches involving public employeesfor workrelated reasons. The Court thus laid down abalancing test under which government interests areweighed against the employees reasonable expectation ofprivacy. This reasonableness test implicates neitherprobable cause nor the warrant requirement, which arerelated to law enforcement.40 OConnor was applied insubsequent cases raising issues on employees privacyrights in the workplace. One of these cases involved agovernment employers search of an office computer, UnitedStates v. Mark L. Simons41 where the defendant Simons,an employee of a division of the Central IntelligenceAgency (CIA), was convicted of receiving and possessingmaterials containing child pornography. Simons wasprovided with an office which he did not share with anyone,and a computer with Internet access. The agency hadinstituted a policy on computer use stating that employeeswere to use the Internet for official government businessonly and that accessing unlawful material was specificallyprohibited. The policy also stated that users shallunderstand that the agency will periodically audit, inspect,and/or monitor the users Internet access as deemedappropriate. CIA agents instructed its contractor for themanagement of the agencys computer network, uponinitial discovery of prohibited internet activity originatingfrom Simons computer, to conduct a

_______________39 Id., at pp. 719, 722725.40 Francis v. Giacomelli, 588 F.3d 186, C.A. (Md), December 2, 2009.41 Supra note 23.

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remote monitoring and examination of Simons computer.After confirming that Simons had indeed downloadedpictures that were pornographic in nature, all the files onthe hard drive of Simons computer were copied from aremote work station. Days later, the contractorsrepresentative finally entered Simons office, removed the



original hard drive on Simons computer, replaced it with acopy, and gave the original to the agency security officer.Thereafter, the agency secured warrants and searchedSimons office in the evening when Simons was not around.The search team copied the contents of Simons computercomputer diskettes found in Simons desk drawercomputer files stored on the zip drive or on zip drivediskettes videotapes and various documents, includingpersonal correspondence. At his trial, Simons moved tosuppress these evidence, arguing that the searches of hisoffice and computer violated his Fourth Amendment rights.After a hearing, the district court denied the motion andSimons was found guilty as charged.

Simons appealed his convictions. The US SupremeCourt ruled that the searches of Simons computer andoffice did not violate his Fourth Amendment rights and thefirst search warrant was valid. It held that the searchremains valid under the OConnor exception to the warrantrequirement because evidence of the crime was discoveredin the course of an otherwise proper administrativeinspection. Simons violation of the agencys Internet policyhappened also to be a violation of criminal law this doesnot mean that said employer lost the capacity and interestsof an employer. The warrantless entry into Simons officewas reasonable under the Fourth Amendment standardannounced in OConnor because at the inception of thesearch, the employer had reasonable grounds forsuspecting that the hard drive would yield evidence ofmisconduct, as the employer was already aware thatSimons had misused his Internet access to download over athousand pornographic images. The retrieval of the harddrive was reasonably related to the objective of the search,and the search was not excessively intrusive. Thus, whileSimons had a reasonable expectation of privacy in hisoffice, he did not have such legitimate expectation ofprivacy with regard to the files in his computer.

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x x x To establish a violation of his rights under the FourthAmendment, Simons must first prove that he had a legitimateexpectation of privacy in the place searched or the item seized. x xx And, in order to prove a legitimate expectation of privacy,Simons must show that his subjective expectation of privacy isone that society is prepared to accept as objectively reasonable. x



x xx x x xx 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 legitimateexpectation of privacy in the files downloaded from the Internet.Additionally, we conclude that Simons Fourth Amendment rightswere not violated by FBIS retrieval of Simons hard drive fromhis office.

Simons did not have a legitimate expectation of privacywith regard to the record or fruits of his Internet use inlight of the FBIS Internet policy. The policy clearly statedthat FBIS would audit, inspect, and/or monitoremployees use of the Internet, including all file transfers,all websites visited, and all email messages, as deemedappropriate. x x x This policy placed employees on notice thatthey could not reasonably expect that their Internet activitywould be private. Therefore, regardless of whether Simonssubjectively believed that the files he transferred from theInternet were private, such a belief was not objectively reasonableafter FBIS notified him that it would be overseeing his Internetuse. x x x Accordingly, FBIS actions in remotely searching andseizing the computer files Simons downloaded from the Internetdid not violate the Fourth Amendment.

x x x xThe 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. Asnoted above, the operational realities of Simons workplace mayhave 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 thereforeconclude that, on this record, Simons possessed a legitimateexpectation of privacy in his office.

x x x xIn the final analysis, this case involves an employees

supervisor entering the employees government office andretrieving a piece of government

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equipment in which the employee had absolutely no expectation ofprivacyequipment that the employer knew contained evidenceof crimes committed by the employee in the employees office. Thissituation 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 theemployers policy and the conduct that violated the criminal law.We consider that FBIS intrusion into Simons office to retrievethe hard drive is one in which a reasonable employer mightengage. x x x42 (Citations omitted emphasis supplied.)

This Court, in Social Justice Society (SJS) v. DangerousDrugs Board43 which involved the constitutionality of aprovision in R.A. No. 9165 requiring mandatory drugtesting of candidates for public office, students of secondaryand tertiary schools, officers and employees of public andprivate offices, and persons charged before the prosecutorsoffice with certain offenses, have also recognized the factthat there may be such legitimate intrusion of privacy inthe workplace.

The first factor to consider in the matter of reasonableness isthe nature of the privacy interest upon which the drug testing,which effects a search within the meaning of Sec. 2, Art. III of theConstitution, intrudes. In this case, the office or workplace servesas the backdrop for the analysis of the privacy expectation of theemployees and the reasonableness of drug testing requirement.The employees privacy interest in an office is to a largeextent circumscribed by the companys work policies, thecollective bargaining agreement, if any, entered into bymanagement and the bargaining unit, and the inherentright of the employer to maintain discipline and efficiencyin the workplace. Their privacy expectation in a regulated officeenvironment is, in fine, reduced and a degree of impingementupon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced inOConnor and Simons to the case at bar, we now addressthe following questions: (1) Did petitioner have areasonable expectation of privacy in his office and computerfiles? and (2) Was the search authorized by the CSC

_______________42 Id.43 Supra note 27 at pp. 432433.

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Chair, the copying of the contents of the hard drive onpetitioners computer reasonable in its inception and scope?



In this inquiry, the relevant surrounding circumstancesto consider include (1) the employees relationship to theitem seized (2) whether the item was in the immediatecontrol of the employee when it was seized and (3) whetherthe employee took actions to maintain his privacy in theitem. These factors are relevant to both the subjective andobjective prongs of the reasonableness inquiry, and weconsider the two questions together.44 Thus, where theemployee used a password on his computer, did not sharehis office with coworkers and kept the same locked, he hada legitimate expectation of privacy and any search of thatspace and items located therein must comply with theFourth Amendment.45

We answer the first in the negative. Petitioner failed toprove that he had an actual (subjective) expectation ofprivacy either in his office or governmentissued computerwhich contained his personal files. Petitioner did not allegethat he had a separate enclosed office which he did notshare with anyone, or that his office was always locked andnot open to other employees or visitors. Neither did heallege that he used passwords or adopted any means toprevent other employees from accessing his computer files.On the contrary, he submits that being in the publicassistance office of the CSCROIV, he normally would havevisitors in his office like friends, associates and evenunknown people, whom he even allowed to use hiscomputer which to him seemed a trivial request. Hedescribed his office as full of people, his friends, unknownpeople and that in the past 22 years he had beendischarging his functions at the PALD, he is personallyassisting incoming clients, receiving documents, draftingcases on appeals, in charge of accomplishment report,Mamamayan Muna Program, Public Sector Unionism,Correction of name, accreditation of service, and hardlyhad anytime for himself alone, that in fact he stays in the

_______________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.

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office as a paying customer.46 Under this scenario, it canhardly be deduced that petitioner had such expectation of



privacy that society would recognize as reasonable.Moreover, even assuming arguendo, in the absence of

allegation or proof of the aforementioned factualcircumstances, that petitioner had at least a subjectiveexpectation of privacy in his computer as he claims, such isnegated by the presence of policy regulating the use ofoffice computers, as in Simons.

Office Memorandum No. 10, S. 2002 Computer UsePolicy (CUP) explicitly provides:

POLICY1.The Computer Resources are the property of the Civil Service

Commission and may be used only for legitimate business purposes.2.Users shall be permitted access to Computer Resources to assist

them in the performance of their respective jobs.3.Use of the Computer Resources is a privilege that may be revoked at

any given time.x x x xNo Expectation of Privacy4.No expectation of privacy.Users except the Members of the

Commission shall not have an expectation of privacy in anythingthey create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placementshall select and assign Users to handle the confidential examinationdata and processes.

5.Waiver of privacy rights. Users expressly waive any right to privacyin anything they create, store, send, or receive on the computerthrough the Internet or any other computer network. Usersunderstand that the CSC may use human or automated meansto monitor the use of its Computer Resources.

6.Nonexclusivity of Computer Resources.A computer resource is nota personal property or for the exclusive use of a User to whom

_______________

46 CA Rollo, pp. 42, 61.

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a memorandum of receipt (MR) has been issued. It can be shared oroperated by other users. However, he is accountable therefor andmust insure its care and maintenance.

x x x xPasswords12.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 usingtheir passwords. No User may access the computer system withanother Users password or account.

13.Passwords do not imply privacy. Use of passwords to gain access tothe computer system or to encode particular files or messages doesnot imply that Users have an expectation of privacy in the materialthey create or receive on the computer system. The Civil ServiceCommission has global passwords that permit access to allmaterials stored on its networked computer system regardless ofwhether those materials have been encoded with a particular Userspassword. Only members of the Commission shall authorize theapplication of the said global passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that putits employees on notice that they have no expectation ofprivacy in anything they create, store, send or receive onthe office computers, and that the CSC may monitor theuse of the computer resources using both automated orhuman means. This implies that onthespot inspectionsmay be done to ensure that the computer resources wereused only for such legitimate business purposes.

One of the factors stated in OConnor which are relevantin determining whether an employees expectation ofprivacy in the workplace is reasonable is the existence of aworkplace privacy policy.48 In one case, the US Court ofAppeals Eighth Circuit held that a state

_______________47 Id., at pp. 440443.48 Biby v. Board of Regents, of the University of Nebraska at Lincoln,

419 F.3d 845 C.A.8 (Neb), August 22, 2005.

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university employee has not shown that he had areasonable expectation of privacy in his computer fileswhere the universitys computer policy, the computer useris informed not to expect privacy if the university has alegitimate reason to conduct a search. The user isspecifically told that computer files, including email, canbe searched when the university is responding to adiscovery request in the course of litigation. Petitioneremployee thus cannot claim a violation of FourthAmendment rights when university officials conducted a



warrantless search of his computer for workrelatedmaterials.49

As to the second point of inquiry on the reasonablenessof the search conducted on petitioners computer, weanswer in the affirmative.

The search of petitioners computer files was conductedin connection with investigation of workrelatedmisconduct prompted by an anonymous lettercomplaintaddressed to Chairperson David regarding anomalies inthe CSCROIV where the head of the Mamamayan MunaHindi Mamaya Na division is supposedly lawyering forindividuals with pending cases in the CSC. ChairpersonDavid stated in her sworn affidavit:

8.That prior to this, as early as 2006, the undersigned has receivedseveral text messages from unknown sources adverting to certainanomalies in Civil Service Commission Regional Office IV (CSCROIV) such as, staff working in another government agency, sellingcases and aiding parties with pending cases, all done during officehours and involved the use of government properties

9.That said text messages were not investigated for lack of anyverifiable leads and details sufficient to warrant an investigation

10.That the anonymous letter provided the lead and details as itpinpointed the persons and divisions involved in the allegedirregularities happening in CSCRO IV

11.That in view of the seriousness of the allegations of irregularitieshappening in CSCRO IV and its effect on the integrity of theCommission, I decided to form a team of Central Office staff to

_______________

49 Id.

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back up the files in the computers of the Public Assistance andLiaison Division (PALD) and Legal Division

x x x x50

A search by a government employer of an employeesoffice is justified at inception when there are reasonablegrounds for suspecting that it will turn up evidence thatthe employee is guilty of workrelated misconduct.51 Thus,in the 2004 case decided by the US Court of Appeals EighthCircuit, it was held that where a government agencyscomputer use policy prohibited electronic messages withpornographic content and in addition expressly providedthat employees do not have any personal privacy rights



regarding their use of the agency information systems andtechnology, the government employee had no legitimateexpectation of privacy as to the use and contents of hisoffice computer, and therefore evidence found duringwarrantless search of the computer was admissible inprosecution for child pornography. In that case, thedefendant employees computer hard drive was firstremotely examined by a computer information technicianafter his supervisor received complaints that he wasinaccessible and had copied and distributed nonworkrelated email messages throughout the office. When thesupervisor confirmed that defendant had used hiscomputer to access the prohibited websites, incontravention of the express policy of the agency, hiscomputer tower and floppy disks were taken and examined.A formal administrative investigation ensued and latersearch warrants were secured by the police department.The initial remote search of the hard drive of petitionerscomputer, as well as the subsequent warrantless searcheswas held as valid under the OConnor ruling that a publicemployer can investigate workrelated misconduct so longas any search is justified at inception and is reasonablyrelated in scope to the circumstances that justified it in thefirst place.52

Under the facts obtaining, the search conducted onpetitioners computer was justified at its inception andscope. We quote with

_______________50 CA Rollo, p. 639.51 U.S. v. Thorn, 375 F.3d 679, C.A.8 (Mo.), July 13, 2004.52 Id.

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approval the CSCs discussion on the reasonableness of itsactions, consistent as it were with the guidelinesestablished by OConnor:

Even conceding for a moment that there is no suchadministrative policy, there is no doubt in the mind of theCommission that the search of Pollos computer has successfullypassed the test of reasonableness for warrantless searches in theworkplace as enunciated in the abovediscussed Americanauthorities. It bears emphasis that the Commission pursued



the search in its capacity as a government employer andthat it was undertaken in connection with an investigationinvolving a workrelated misconduct, one of thecircumstances exempted from the warrant requirement. At theinception of the search, a complaint was received recounting thata certain division chief in the CSCRO No. IV was lawyering forparties having pending cases with the said regional office or in theCommission. The nature of the imputation was serious, as itwas grievously disturbing. If, indeed, a CSC employee wasfound to be furtively engaged in the practice of lawyering forparties with pending cases before the Commission would be ahighly repugnant scenario, then such a case would haveshattering repercussions. It would undeniably cast clouds of doubtupon the institutional integrity of the Commission as a quasijudicial agency, and in the process, render it less effective infulfilling its mandate as an impartial and objective dispenser ofadministrative justice. It is settled that a court or anadministrative tribunal must not only be actually impartial butmust be seen to be so, otherwise the general public would nothave any trust and confidence in it.

Considering the damaging nature of the accusation, theCommission had to act fast, if only to arrest or limit anypossible adverse consequence or fallout. Thus, on the same datethat the complaint was received, a search was forthwithconducted involving the computer resources in the concernedregional office. That it was the computers that weresubjected to the search was justified since these furnishedthe easiest means for an employee to encode and storedocuments. Indeed, the computers would be a likelystarting point in ferreting out incriminating evidence.Concomitantly, the ephemeral nature of computer files,that is, they could easily be destroyed at a click of abutton, necessitated drastic and immediate action.Pointedly, to impose the need to comply with the probable causerequirement would invariably defeat the purpose of the wokrelated investigation.

Worthy to mention, too, is the fact that the Commissioneffected the warrantless search in an open and transparentmanner. Officials and some

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employees of the regional office, who happened to be in thevicinity, 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 offiles from his computer.

All in all, the Commission is convinced that the warrantlesssearch done on computer assigned to Pollo was not, in any way,vitiated with unconstitutionality. It was a reasonable exercise ofthe managerial prerogative of the Commission as an employeraimed at ensuring its operational effectiveness and efficiency bygoing after the workrelated misfeasance of its employees.Consequently, the evidence derived from the questioned searchare deemed admissible.53

Petitioners claim of violation of his constitutional rightto privacy must necessarily fail. His other argumentinvoking the privacy of communication and correspondenceunder Section 3(1), Article III of the 1987 Constitution isalso untenable considering the recognition accorded tocertain legitimate intrusions into the privacy of employeesin the government workplace under the aforecitedauthorities. We likewise find no merit in his contentionthat OConnor and Simons are not relevant because thepresent case does not involve a criminal offense like childpornography. As already mentioned, the search ofpetitioners computer was justified there being reasonableground for suspecting that the files stored therein wouldyield incriminating evidence relevant to the investigationbeing conducted by CSC as government employer of suchmisconduct subject of the anonymous complaint. Thissituation clearly falls under the exception to thewarrantless requirement in administrative searchesdefined in OConnor.

The Court is not unaware of our decision in AnonymousLetterComplaint against Atty. Miguel Morales, Clerk ofCourt, Metropolitan Trial Court of Manila54 involving abranch clerk (Atty. Morales) who was investigated on thebasis of an anonymous letter alleging that he wasconsuming his working hours filing and attending topersonal cases, using office supplies, equipment andutilities. The OCA conducted a spot investigation aided byNBI agents. The team was able

_______________53 CA Rollo, pp. 611612.54 A.M. Nos. P082519 and P082520, November 19, 2008, 571 SCRA

361.

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to access Atty. Morales personal computer and print twodocuments stored in its hard drive, which turned out to betwo pleadings, one filed in the CA and another in the RTCof Manila, both in the name of another lawyer. Atty.Morales computer was seized and taken in custody of theOCA but was later ordered released on his motion, but withorder to the MISO to first retrieve the files stored therein.The OCA disagreed with the report of the InvestigatingJudge that there was no evidence to support the chargeagainst Atty. Morales as no one from the OCC personnelwho were interviewed would give a categorical and positivestatement affirming the charges against Atty. Morales,along with other court personnel also charged in the samecase. The OCA recommended that Atty. Morales should befound guilty of gross misconduct. The Court En Banc heldthat while Atty. Morales may have fallen short of theexacting standards required of every court employee, theCourt cannot use the evidence obtained from his personalcomputer against him for it violated his constitutional rightagainst unreasonable searches and seizures. The Courtfound no evidence to support the claim of OCA that theywere able to obtain the subject pleadings with the consentof Atty. Morales, as in fact the latter immediately filed anadministrative case against the persons who conducted thespot investigation, questioning the validity of theinvestigation and specifically invoking his constitutionalright against unreasonable search and seizure. And asthere is no other evidence, apart from the pleadings,retrieved from the unduly confiscated personal computer ofAtty. Morales, to hold him administratively liable, theCourt had no choice but to dismiss the charges against himfor insufficiency of evidence.

The above case is to be distinguished from the case atbar because, unlike the former which involved a personalcomputer of a court employee, the computer from which thepersonal files of herein petitioner were retrieved is agovernmentissued computer, hence government propertythe use of which the CSC has absolute right to regulate andmonitor. Such relationship of the petitioner with the itemseized (office computer) and other relevant factors andcircumstances under American Fourth Amendmentjurisprudence, notably the existence of CSC MO 10, S. 2007on Computer Use Policy, failed



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to establish that petitioner had a reasonable expectation ofprivacy in the office computer assigned to him.

Having determined that the personal files copied fromthe office computer of petitioner are admissible in theadministrative case against him, we now proceed to theissue of whether the CSC was correct in finding thepetitioner guilty of the charges and dismissing him fromthe service.

Wellsettled is the rule that the findings of fact of quasijudicial agencies, like the CSC, are accorded not onlyrespect but even finality if such findings are supported bysubstantial evidence. Substantial evidence is such amountof relevant evidence which a reasonable mind might acceptas adequate to support a conclusion, even if other equallyreasonable minds might conceivably opine otherwise.55

The CSC based its findings on evidence consisting of asubstantial number of drafts of legal pleadings anddocuments stored in his office computer, as well as thesworn affidavits and testimonies of the witnesses itpresented during the formal investigation. According to theCSC, these documents were confirmed to be similar orexactly the same contentwise with those on the caserecords of some cases pending either with CSCRO No. IV,CSCNCR or the Commission Proper. There were alsosubstantially similar copies of those pleadings filed withthe CA and duly furnished the Commission. Further, theCSC found the explanation given by petitioner, to the effectthat those files retrieved from his computer hard driveactually belonged to his lawyer friends Estrellado andSolosa whom he allowed the use of his computer fordrafting their pleadings in the cases they handle, asimplausible and doubtful under the circumstances. We holdthat the CSCs factual finding regarding the authorship ofthe subject pleadings and misuse of the office computer iswellsupported by the evidence on record, thus:

_______________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., RealtyInvestors and Developers v. National Labor Relations Commission, G.R.No. 61272, September 29, 1989, 178 SCRA 107.



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It is also striking to note that some of these documents werein the nature of pleadings responding to the orders, decisions orresolutions of these offices or directly in opposition to them suchas a petition for certiorari or a motion for reconsideration of CSCResolution. This indicates that the author thereof knowingly andwillingly participated in the promotion or advancement of theinterests of parties contrary or antagonistic to the Commission.Worse, the appearance in one of the retrieved documents thephrase, Eric N. Estr[e]llado, Epal kulang ang bayad mo, lendsplausibility to an inference that the preparation or drafting of thelegal pleadings was pursued with less than a laudable motivation.Whoever was responsible for these documents was simply doingthe same for the moneya legal mercenary selling or purveyinghis expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrievedfrom the computer of Pollo raises the presumption that hewas the author thereof. This is because he had a control ofthe said computer. More significantly, one of the witnesses,Margarita Reyes, categorically testified seeing a written copy ofone of the pleadings found in the case records lying on the table ofthe respondent. This was the Petition for Review in the case ofEstrellado addressed to the Court of Appeals. The saidcircumstances indubitably demonstrate that Pollo was secretlyundermining the interest of the Commission, his very ownemployer.

To deflect any culpability, Pollo would, however, want theCommission to believe that the documents were the personal filesof some of his friends, including one Attorney Ponciano Solosa,who incidentally served as his counsel of record during the formalinvestigation of this case. In fact, Atty. Solosa himself executed asworn affidavit to this effect. Unfortunately, this contention of therespondent was directly rebutted by the prosecution witness,Reyes, who testified that during her entire stay in the PALD, shenever saw Atty. Solosa using the computer assigned to therespondent. Reyes more particularly stated that she worked inclose 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 theformal investigation to confirm his sworn statement such that thesame constitutes selfserving evidence unworthy of weight andcredence. 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 unlawfullyauthorizing private persons to use the computer assigned to himfor official purpose, not only once but several times gauging by thenumber of pleadings, for ends not in conformity with the interestsof the Commission. He was, in effect, acting as

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a principal by indispensable cooperationOr at the very least, heshould be responsible for serious misconduct for repeatedlyallowing CSC resources, that is, the computer and the electricity,to be utilized for purposes other than what they were officiallyintended.

Further, the Commission cannot lend credence to the posturingof the appellant that the line appearing in one of the documents,Eric N. Estrellado, Epal kulang ang bayad mo, was a privatejoke between the person alluded to therein, Eric N. Estrellado,and his counsel, Atty. Solosa, and not indicative of anything moresinister. The same is too preposterous to be believed. Why wouldsuch a statement appear in a legal pleading stored in thecomputer assigned to the respondent, unless he had something todo with it?56

Petitioner assails the CA in not ruling that the CSCshould not have entertained an anonymous complaint sinceSection 8 of CSC Resolution No. 991936 (URACC) requiresa verified complaint:

Rule II Disciplinary CasesSEC.8.Complaint.A complaint against a civil service

official or employee shall not be given due course unless it is inwriting and subscribed and sworn to by the complainant.However, in cases initiated by the proper discipliningauthority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there isobvious truth or merit to the allegation therein or supportedby documentary or direct evidence, in which case the personcomplained of may be required to comment.

x x x x

We need not belabor this point raised by petitioner. Theadministrative complaint is deemed to have been initiatedby the CSC itself when Chairperson David, after a spotinspection and search of the files stored in the hard drive ofcomputers in the two divisions adverted to in theanonymous letteras part of the disciplining authoritys



own factfinding investigation and informationgatheringfound a prima facie case against the petitioner who wasthen directed to file

_______________56 CA Rollo, pp. 616617.

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his comment. As this Court held in

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Pollo vs. David

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