FILED AND FIRED: No Privacy for Office Computers

By Obiter07

Your public and private life gets to be intertwined in your workplace computer.  As you spend most of your time at the office, the tendency to intermingle personal and work files in your desktop or laptop becomes more difficult to avoid.  You get to download vacation pictures there from your camera, you surf the internet for personal purposes or even compose some communications which are not connected your work.  Be warned though.  The Supreme Court has upheld the dismissal of a government employee using evidence taken from his office computer in Pollo vs. Chairman David, G.R. No. 181881 dated October 18, 2011. This is a case concerning the search of an office computer which led to the dismissal of a government employee for “dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713 xxx.” 

The respondent was a specialist and OIC of the Civil Service Commission.  The CSC Chair received an anonymous complaint that he was acting as a lawyer for government employees with pending cases before the CSC. A team was formed and directed to “to back up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions.”

The respondent got wind of this via text message from one Director. Petitioner replied that he was leaving the matter to the director and that he will just get a lawyer. 

It was discovered that from the files copied from respondent’s computer that “40 to 42 documents, were draft pleadings or letters in connection with administrative cases in the CSC and other tribunals.” On this basis, the chair issued a show-cause order for respondent to submit his explanation or counter-affidavit. The Chair made a finding that “most of these draft pleadings are for and on behalves of parties, who are facing charges as respondents in administrative cases.  This gives rise to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline misfeasance and malfeasance in the government service.  The number of pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming regularity.  It would also be the height of naivete or credulity, and certainly against common human experience, to believe that the person concerned had engaged in this customary practice without any consideration, and in fact, one of the retrieved files xxx appears to insinuate the collection of fees.  That these draft pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct control and disposition.”

Respondent filed a comment, denying he was the subject of the anonymous complaint, that he was not a lawyer nor was he engaged in lawyering. Similar to the recently concluded impeachment trial, he charged the CSC of “conducting a “fishing expedition” when they unlawfully copied and printed personal files in his computer, and in subsequently asking him to submit his comment which violated his right against self-incrimination.” He argued that he had protested the taking of his computer, asserting that there were “personal files and those of his sister, relatives, friends and some associates” in it and that he did not authorize the access of the same. Temporary “use and ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for personal purposes.”

The CSC thereafter charged him with “Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees).”   Respondent assailed the charges as without basis, being based on an illegal search, denied the charges and alleged that he had permitted other persons to use his computer.

After proceedings, he was found guilty and dismissed from the service. Respondent appealed to the Supreme Court raising as a ground, among others, that he should have been allowed to invoke his right to privacy, his right against unreasonable search and seizure and right against self-incrimination alleging that government ownership of the computer does not extend to personal files.

The Court viewed the issues as revolving around respondent’s reasonable expectation of privacy in his office and computer files and if the search made on his computer was “reasonable in its inception and scope.”      In looking at those issues, the Court held that the circumstances to consider are “(1) the employee’s relationship to the item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3) whether the employee took actions to maintain his privacy in the item.” 

The Court found that respondent did not have “an actual (subjective) expectation of privacy either in his office or government-issued computer which contained his personal files.” He did not allege he had his own separate enclosed office that was not accessible to third parties. He did not allege that he used passwords or that his office was always locked. He even admitted that he normally had visitors in his office and even unknown people were allowed to use his computer.

Even if he had “at least a subjective expectation of privacy in his computer as he claims” this was negated by the CSC’s policy regulating the use of office computers.  An Office Memorandum clearly provided that “Computer Resources are the property of the Civil Service Commission and may be used only for legitimate business purposes.” It goes further to state that –

4.      No expectation of privacy.  Users except the Members of the Commission shall not have an expectation of privacy in anything they create, store, send, or receive on the computer system xxx

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

6.      Non-exclusivity of Computer Resources.  A computer resource is not a personal property or for the exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other users. However, he is accountable therefor and must insure its care and maintenance.”

xxx

Passwords

12.  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 using their passwords. No User may access the computer system with another User’s password or account.

13.  Passwords do not imply privacy.  Use of passwords to gain access to the computer system or to encode particular files or messages does not imply that Users have an expectation of privacy in the material they create or receive on the computer system. The Civil Service Commission has global passwords that permit access to all materials stored on its networked computer system regardless of whether those materials have been encoded with a particular User’s password. Only members of the Commission shall authorize the application of the said global passwords.”

                        [Emphasis supplied.]

The CSC had put its employees on notice that “they have no expectation of privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor the use of the computer resources using both automated or human means.”  This meant “on-the-spot inspections may be done to ensure that the computer resources were used only for such legitimate business purposes.” 

On the reasonableness of the search conducted, this was in “connection with investigation of work-related misconduct prompted by an anonymous letter-complaint xxx.” The Court held that a “search by a government employer of an employee’s office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.”

The Court cited the CSC’s ruling that the search was “undertaken in connection with an investigation involving a work-related misconduct xxx.”  xxx  That it was the computers that were subjected to the search 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.”

Hence, respondent cannot claim a violation of the right to privacy since “certain legitimate intrusions into the privacy of employees in the government workplace xxx.” The “search of petitioner’s computer was justified there being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant to the investigation being conducted by CSC as government employer of such misconduct subject of the anonymous complaint.  This situation clearly falls under the exception to the warrantless requirement in administrative searches xxx.” The Court found the evidence to be admissible and upheld the CSC’s findings dismissing him from the service.

The case is to be distinguished from the case of Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of Court, Metropolitan Trial Court of Manila where a branch clerk was accused of attending to personal cases.  The Court denied the use of evidence “obtained from his personal computer against him for it violated his constitutional right against unreasonable searches and seizures.”  [Emphasis supplied.]

Employers are hence forewarned to have clear policies in place, should they wish to limit the use of computers to official purposes only.  Employees are now put on notice that certain files can get them fired.

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