DFA vs. BCA INTERNATIONAL CO. G.R. No. 210858, June 29, 2016, Other privileged communication – RULE 130

 

Other privileged communication – RULE 130 -

DFA vs. BCA INTERNATIONAL CO. G.R. No. 210858, June 29, 2016

P: CARPIO, J.:

FACTS: DFA awarded the Machine Readable Passport and Visa Project (MRPN Project) to BCA International Corporation (BCA). During the implementation of the Project, DFA sought to terminate the Agreement. BCA opposed the termination and filed a Request for Arbitration. An ad hoc arbitral tribunal was constituted. The tribunal approved BCA's request to apply in court for the issuance of subpoena, subject to the conditions that the application will not affect its proceedings and the hearing will proceed whether the witnesses attend or not. BCA filed before the RTC a Petition for Assistance in Taking Evidence. BCA sought the issuance of subpoena ad testificandum and subpoena duces tecum to the following witnesses and documents in their custody: Secretary of DFA, Secretary of Finance, Chairman of COA, Executive Director or any officer or representative of the DTI, DFA Undersecretary. DFA alleged that the presentation of the witnesses and documents was prohibited by law and protected by the deliberative process privilege.

RTC ruled in favor of BCA and held that the evidence sought to be produced was no longer covered by the deliberative process privilege. In Chavez v. Public Estates Authority that acts, transactions or decisions are privileged only before a definite proposition is reached by the agency and since DFA already made a definite proposition and entered into a contract, DFA's acts, transactions or decisions were no longer privileged.

ISSUE: Whether or not the acts, transactions or decisions are privileged only before a definite proposition is reached by the agency.

HELD: No. Chavez does not apply in this case. The constitutional right to information includes official information on on-going negotiations before a final contract. The information, however, must constitute definite propositions by the government and should not cover recognized exceptions like privileged information, military and diplomatic secrets and similar matters affecting national security and public order. In these exceptional cases, even the occurrence of a "definite proposition" will not give rise to the public's right to information. The privileged character of the information does not end when an agency has adopted a definite proposition or when a contract has been perfected or consummated; otherwise, the purpose of the privilege will be defeated.

"Deliberative process privilege contains three policy bases: first, the privilege protects candid discussions within an agency; second, it prevents public confusion from premature disclosure of agency opinions before the agency establishes final policy; and third, it protects the integrity of an agency's decision; the public should not judge officials based on information they considered prior to issuing their final decisions." 

The burden falls upon the government agency to prove that the information in question satisfies both requirements - predecisional and deliberative. It may be overcome upon a showing that the discoverant's interests in disclosure of the materials outweigh the government's interests in their confidentiality. "The determination of need must be made flexibly on a case-by-case, ad hoc basis," and the "factors relevant to this balancing include: the relevance of the evidence, whether there is reason to believe the documents may shed light on government misconduct, whether the information sought is available from other sources and can be obtained without compromising the government's deliberative processes, and the importance of the material to the discoverant's case."

The case is remanded back to RTC to determine whether the documents and records sought to be subpoenaed are protected by the deliberative process privilege as explained in this Decision.