The Supreme Court has recently held that the search by the government of
an employee’s office computer in connection with an investigation into
work-related misconduct does not violate the employee’s constitutional
right to privacy. In a 33-page decision penned by Justice Martin S. Villarama Jr., the Court denied the petition for review on certiorari of Briccio “Ricky” A. Pollo, former supervising personnel specialist of the Civil Service Commission (CSC) and officer-in-charge of its Public Assistance and Liaison Division (PALD) under the CSC’s Mamamayan Muna Hindi Mamaya Na Program.
Pollo’s petition assailed the Court of Appeals ruling which had dismissed his petition for certiorari to nullify the CSC proceedings wherein he was found guilty of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of RA 6713 and accordingly dismissed.
The Court found that the search conducted on Pollo’s computer was justified at its inception and scope using the test in the US case of O’Connor v. Ortega as the CSC pursued the search in its capacity as a government employer and the search was undertaken in connection with an investigation involving a work-related misconduct.
The search was occasioned by an anonymous letter-complaint to then CSC chairperson Karina Constantino-David accusing Pollo of lawyering for parties with pending cases with the CSC. David immediately formed a team 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.”
It was found that most of the files in the 17 diskettes containing files copied from the computer assigned to and being used by Pollo, numbering about 40 to 42 documents, were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals.
The Court found tenable the CSC’s argument that the warrantless search of the above computers was justified since “these furnished the easiest means for an employee to encode and store documents. Indeed, the computers would be a likely starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate action.”
Applying the analysis and principles in O’Connor and US v. Simons, the Court further held that Pollo 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,” the decision said. And even if Pollo had such expectation of privacy, the Court held such was negated by the CSC policy regulating the use of office computers in its Office Memorandum No. 10, S. 2002 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.
“Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other argument invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987 Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into the privacy of employees in the government workplace,” stressed the Court.
The Court also upheld the CSC’s dismissal of Pollo based on evidence consisting of a substantial number of drafts of legal pleadings and documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses presented during the formal investigation. It concurred with the CSC’s finding that Pollo’s explanation that those files retrieved from his computer hard drive actually belonged to his lawyer friends whom he allowed the use of his computer for drafting their pleadings in the cases they handle as implausible and doubtful.
As to Pollo’s contention that the CSC should have not entertained an anonymous complaint, the Court ruled that the administrative complaint in this case is deemed to have been initiated by the CSC itself when David, after a spot inspection and search of the files stored in the hard drive of computers in the two divisions adverted to in the anonymous letter as part of the disciplining authority’s own fact-finding investigation and information-gathering found a prima facie case against Pollo and thus formally charged him. — Newsbytes.ph
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