Secrecy of computer files

There’s a new proverbial smoking gun to prove the commission of offenses that keeps abreast with the times—incriminating computer files.

E-mail, tweets, social media chatter and other means of communication using the Internet are now being used by the authorities to monitor the activities of people under their watch.

An employee of the Civil Service Commission (CSC) named Briccio Pollo got a taste of his own computer files supplying the evidence that resulted in his dismissal from work.

It all started with an unsigned letter to former CSC chair Karina David informing her that Pollo, then head of CSC’s public assistance and liaison division, was “lawyering” for people with pending cases in CSC.

Acting on that complaint, David ordered the backing up (or copying) of the files contained in the hard discs of that office’s computers. The work was witnessed by several employees. The computers were later sealed and secured to preserve their contents.

The computer assigned to Pollo revealed 40 to 42 drafts of pleadings or letters on behalf of parties facing administrative charges in CSC and other tribunals.

Ownership

When confronted with the findings, Pollo argued that those documents were his personal files and those of his sister, relatives, friends and some associates.

He invoked his right to privacy, right against self-incrimination and prohibition on warrantless search and seizure. Although the subject computer is government property, he claimed its temporary use and ownership was ceded to him by way of a memorandum receipt.

In his view, this document authorized him to exercise all the attributes of ownership over the computer, including its use for personal purposes. He also stated that the incriminating documents were prepared by other people he allowed to use his computer.

After proper notice and hearing, CSC found him guilty of dishonesty, grave misconduct and conduct prejudicial to the best interests of the service.

He was dismissed from the service. Acting on Pollo’s appeal, the Court of Appeals affirmed CSC’s action. Despite the setback, he elevated the issue to the Supreme Court for final resolution.

Since the case (Briccio Pollo vs Chair Karina Constantino-David, et al., G.R. No. 181881, Oct. 18, 2011) has no precedent in our courts, the tribunal looked to American jurisprudence for guidance in its decision.

Confidential

The issue that Pollo wanted the tribunal to resolve was whether the search conducted on his office computer and copying of his files without his knowledge and consent violated his right to privacy.

In effect, the case called for a balancing of interests between the right to privacy of a government employee and the government’s need to supervise and control the operations of its offices and employees.

Earlier, American court rulings show that, as a general rule, government employees have “legitimate expectations of privacy” in their office depending on, among others, the arrangement of their work area and the manner by which they maintained their personal files.

If a search has to be conducted on their work area, it should be based on reasonable grounds that it will prove the commission of work-related offenses, or is essential for a “non-investigatory work related purpose,” such as, retrieving needed files.

Thus, the tribunal narrowed down the issues in Pollo’s case to the following: Did he have a reasonable expectation of privacy in his office and computer files? Was the search and copying of the contents of his computer by CSC reasonable in its inception and scope?

Policies

On the first issue, the justices ruled that Pollo failed to show that he had a reasonable expectation of privacy over his office or government-issued computer which contained his personal files.

No proof was shown to establish that he had a separate enclosed office, or his office was always locked and not open to access by other employees, or that he used passwords or adopted other means to prevent other people from gaining access to his computer files.

He even described his office as “full of people, his friends, unknown people.” Bottom line, he had no expectation of privacy in his office and computer files that called for reciprocal treatment from CSC.

Assuming he had such expectation, the tribunal stated that claim is negated by an existing CSC policy which states that “computer resources … may be used only for legitimate purposes,” and “users … shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system.”

On the second issue, the tribunal found CSC’s action reasonable in its inception and scope. It agreed with CSC’s position that the act complained of in the letter that triggered the investigation was serious and disturbing.

If CSC did not take immediate action, it “would undeniably cast clouds of doubt upon the institutional integrity of the Commission.” Besides, the search was conducted in an open and transparent manner with some of Pollo’s colleagues on hand to observe the process.

Thus, the tribunal upheld Pollo’s dismissal from the service.

The question is posed: Does this ruling apply to employees of private companies who may be caught in a similar situation?

Yes. In an earlier case involving the mandatory drug testing for certain classes of people the tribunal said: “The employees’ privacy interest in an office is to a large extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in the workplace.”

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