Department of Foreign Affairs v. BCA International Corp.

SECOND DIVISION

[G.R. No. 210858. June 29, 2016.]

DEPARTMENT OF FOREIGN AFFAIRS, petitioner, vs.BCA INTERNATIONAL CORPORATION, respondent.

DECISION

CARPIO, J p:

The Case

This petition for review 1 assails the Orders dated 11 October 2013 2 and 8 January 2014, 3 as well as the Resolution dated 2 September 2013, 4 of the Regional Trial Court of Makati City (RTC),Branch 146, in SP. PROC. No. M-7458.

The Facts

In an Amended Build-Operate-Transfer Agreement dated 5 April 2002 (Agreement),petitioner Department of Foreign Affairs (DFA) awarded the Machine Readable Passport and Visa Project (MRP/V Project) to respondent BCA International Corporation (BCA),a domestic corporation. During the implementation of the MRP/V Project, DFA sought to terminate the Agreement. However, BCA opposed the termination and filed a Request for Arbitration, according to the provision in the Agreement:

Section 19.02. Failure to Settle Amicably. — If the Dispute cannot be settled amicably within ninety (90) days by mutual discussion as contemplated under Section 19.01 herein, the Dispute shall be settled with finality by an arbitrage tribunal operating under International Law, hereinafter referred to as the "Tribunal",under the UNCITRAL Arbitration Rules contained in Resolution 31/98 adopted by the United Nations General Assembly on December 15, 1976,and entitled "Arbitration Rules on the United Nations Commission on the International Trade Law".The DFA and the BCA undertake to abide by and implement the arbitration award. The place of arbitration shall be Pasay City, Philippines, or such other place as may be mutually agreed upon by both parties. The arbitration proceeding shall be conducted in the English language. 5 (Emphasis supplied)

On 29 June 2009, an ad hoc arbitral tribunal 6 was constituted. In an Order dated 15 April 2013, 7 the arbitral 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 set in October 2013 will proceed whether the witnesses attend or not.

On 16 May 2013, BCA filed before the RTC a Petition for Assistance in Taking Evidence 8 pursuant to the Implementing Rules and Regulations (IRR) of "The Alternative Dispute Resolution Act of 2004," or Republic Act No. 9285 (RA 9285). In its petition, BCA sought the issuance of subpoena ad testificandum and subpoena duces tecum to the following witnesses and documents in their custody: 9

Witnesses	Documents to be produced
1. Secretary of	a. Request for Proposal dated September 10,
Foreign Affairs or his	1999 for the MRP/V Project;
representative/s,	b. Notice of Award dated September 29, 2000
specifically	awarding the MRP/V Project in favor of BCA and
Undersecretary	requiring BCA to incorporate a Project Company
Franklin M. Ebdalin	to implement the MRP/V Project;
and Ambassador	c. Department of Foreign Affairs Machine
Belen F. Anota	Readable Passport and Visa Project Build-
	Operate-Transfer Agreement dated February 8,
	2001;
	d. Department of Foreign Affairs Machine
	Readable Passport and Visa Project Amended
	Build-Operate-Transfer Agreement dated April 5,
	2002;
	e. Documents, records, papers and
	correspondence between DFA and BCA regarding
	the negotiations for the contract of lease of the
	PNB building, which was identified in the
	Request for Proposal as the Central Facility Site,
	and the failure of said negotiations;
	f. Documents, records, reports, studies, papers
	and correspondence between DFA and BCA
	regarding the search for alternative Central
	Facility Site;
	g. Documents, records, papers and
	correspondence between DFA and BCA regarding
	the latter's submission of the Project Master Plan
	(Phase One of the MRP/V Project);
	h. Documents, records, papers and
	correspondence among DFA, DFA's Project
	Planning Team, Questronix Corporation, MRP/V
	Advisory Board and other related government
	agencies, and BCA regarding the
	recommendation for the issuance of the
	Certificate of Acceptance in favor of BCA;
	i. Certificate of Acceptance for Phase
	One dated June 9, 2004 issued by DFA;
	j. Documents, records, papers
	and correspondence between DFA and BCA
	regarding the approval of the Star Mall complex
	as the Central Facility Site;
	k. Documents, records, papers and
	correspondence among DFA, Questronix
	Corporation, MRP/V Advisory Board and other
	related government agencies, and BCA regarding
	the recommendation for the approval of the Star
	Mall complex as the Central Facility Site;
	l. Documents, records, papers and correspondence
	between DFA and BCA regarding the DFA's
	request for BCA to terminate its Assignment
	Agreement with Philpass, including BCA's
	compliance therewith;
	m. Documents, records, papers and
	correspondence between DFA and BCA regarding
	the DFA's demand for BCA to prove its financial
	capability to implement the MRP/V Project,
	including the compliance therewith by BCA;
	n. Documents, records, papers and
	correspondence between DFA and BCA regarding
	the DFA's attempt to terminate the Amended BOT
	Agreement, including BCA's response to DFA
	and BCA's attempts to mutually discuss the
	matter with DFA;
	o. Documents, records, papers and
	correspondence among DFA and MRP/V
	Advisory Board, DTI-BOT Center, Department of
	Finance and Commission on Audit regarding the
	delays in the implementation of the MRP/V
	Project, DFA's requirement for BCA to prove its
	financial capability, and the opinions of the said
	government agencies in relation to DFA's attempt
	to terminate the Amended BOT Agreement; and
	p. Other related documents, records, papers and
	correspondence.
2. Secretary of	a. Documents, records, papers and
Finance or his	correspondence between DFA and Department of
representative/s,	Finance regarding the DFA's requirement for
specifically former	BCA to prove its financial capability to
Secretary of Finance	implement the MRP/V Project and its opinion
Juanita D. Amatong	thereon;
	b. Documents, records, papers and
	correspondence between DFA and DOF regarding
	BCA's compliance with DFA's demand for BCA
	to further prove its financial capability to
	implement the MRP/V Project;
	c. Documents, records, papers and
	correspondence between DFA and DOF regarding
	the delays in the implementation of the MRP/V
	Project;
	d. Documents, records, papers and
	correspondence between DFA and DOF regarding
	the DFA's attempted termination of the Amended
	BOT Agreement; and
	e. Other related documents, records, papers and
	correspondence.
3. Chairman of the	a. Documents, records, papers and
Commission on Audit	correspondence between DFA and COA regarding
or her	the COA's conduct of a sectoral performance
representative/s,	audit on the MRP/V Project;
specifically Ms.	b. Documents, records, papers and
Iluminada M. V.	correspondence between DFA and COA regarding
Fabroa (Director IV)	the delays in and its recommendation to fast-track
	the implementation of the MRP/V Project;
	c. Documents, records, papers and
	correspondence between DFA and COA regarding
	COA's advice to cancel the Assignment
	Agreement between BCA and Philpass "for being
	contrary to existing laws and regulations and DOJ
	opinion";
	d. Documents, records, papers and
	correspondence between DFA and COA regarding
	DFA's attempted termination of the Amended
	BOT Agreement; and
	e. Other related documents, records, papers and
	correspondence.
4. Executive Director	a. Documents, records, papers and
or any officer or	correspondence between DFA and BOT Center
representative of the	regarding the delays in the implementation of the
Department of Trade	MRP/V Project, including DFA's delay in the
and Industry Build-	issuance of the Certificate of Acceptance for
Operate-Transfer	Phase One of the MRP/V Project and in
Center, specifically	approving the Central Facility Site at the Star
Messrs. Noel Eli B.	Mall complex;
Kintanar, Rafaelito H.	b. Documents, records, papers and
Taruc and Luisito	correspondence between DFA and BOT Center
Ucab	regarding BCA's financial capability and the BOT
	Center's opinion on DFA's demand for BCA to
	further prove its financial capability to implement
	the MRP/V Project;
	c. Documents, records, papers and
	correspondence between DFA and BOT Center
	regarding the DFA's attempt to terminate the
	Amended BOT Agreement, including the BOT
	Center's unsolicited advice dated December 23,
	2005 stating that the issuance of the Notice of
	Termination was "precipitate, and done without
	first carefully ensuring that there were sufficient
	grounds to warrant such an issuance" and was
	devoid of merit;
	d. Documents, records, papers and
	correspondence between DFA and BOT Center
	regarding the DFA's unwarranted refusal to
	approve BCA's proposal to obtain the required
	financing by allowing the entry of a "strategic
	investor";and
	e. Other related documents, records, papers and
	correspondence.
5. Chairman of the	a. Documents, records, papers and
DFA MRP/V	correspondence between DFA and the MRP/V
Advisory Board or	Advisory Board regarding BCA['s] performance
his representative/s,	of its obligations for Phase One of the MRP/V
specifically DFA	Project, the MRP/V Advisory Board's
Undersecretary	recommendation for the issuance of the
Franklin M. Ebdalin	Certificate of Acceptance of Phase One of the
and MRP/V Project	MRP/V Project and its preparation of the draft of
Manager, specifically	the Certificate of Acceptance;
Atty. Voltaire	b. Documents, records, papers and
Mauricio	correspondence between DFA and the MRP/V
	Advisory Board regarding the latter's
	recommendation for the DFA to approve the Star
	Mall complex as the Central Facility Site;
	c. Documents, records, papers and
	correspondence between DFA and the MRP/V
	Advisory Board regarding BCA's request to allow
	the investment of S.F. Pass International in
	Philpass;
	d. Documents, records, papers and
	correspondence between DFA and the MRP/V
	Advisory Board regarding BCA's financial
	capability and the MRP/V Advisory Board's
	opinion on DFA's demand for BCA to further
	prove its financial capability to implement the
	MRP/V Project;
	e. Documents, records, papers and
	correspondence between DFA and the MRP/V
	Advisory Board regarding the DFA's attempted
	termination of the Amended BOT Agreement; and
	f. Other related documents, records, papers and
	correspondence.

 

On 1 July 2013, DFA filed its comment, alleging that the presentation of the witnesses and documents was prohibited by law and protected by the deliberative process privilege. acEHCD

The RTC Ruling

In a Resolution dated 2 September 2013, the RTC ruled in favor of BCA and held that the evidence sought to be produced was no longer covered by the deliberative process privilege. According to the RTC, the Court held in Chavez v. Public Estates Authority 10 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. 11

The dispositive portion of the RTC Resolution reads:

WHEREFORE, the petition is granted. Let subpoena ad testificandum [and subpoena] duces tecum be issued to the persons listed in paragraph 11 of the Petition for them to appear and bring the documents specified in paragraph 12 thereof, before the Ad Hoc Tribunal for the hearings on October 14, 15, 16, 17, 2013 at 9:00 a.m. and 2:00 p.m. at the Malcolm Hall, University of the Philippines, Diliman, Quezon City. 12

On 6 September 2013, the RTC issued the subpoena duces tecum and subpoena ad testificandum.On 12 September 2013, DFA filed a motion to quash the subpoena duces tecum and subpoena ad testificandum,which BCA opposed.

In an Order dated 11 October 2013, the RTC denied the motion to quash and held that the motion was actually a motion for reconsideration, which is prohibited under Rule 9.9 of the Special Rules of Court on Alternative Dispute Resolution (Special ADR Rules).

On 14, 16, and 17 October 2013, Undersecretary Franklin M. Ebdalin (Usec. Ebdalin),Atty. Voltaire Mauricio (Atty. Mauricio),and Luisito Ucab (Mr. Ucab) testified before the arbitral tribunal pursuant to the subpoena.

In an Order dated 8 January 2014, the RTC denied the motion for reconsideration filed by DFA. The RTC ruled that the motion became moot with the appearance of the witnesses during the arbitration hearings. Hence, DFA filed this petition with an urgent prayer for the issuance of a temporary restraining order and/or a writ of preliminary injunction.

In a Resolution dated 2 April 2014, the Court issued a temporary restraining order enjoining the arbitral tribunal from taking cognizance of the testimonies of Usec. Ebdalin, Atty. Mauricio, and Mr. Ucab.

The Issues

DFA raises the following issues in this petition: (1) the 1976 UNCITRAL Arbitration Rules and the Rules of Court apply to the present arbitration proceedings, not RA 9285 and the Special ADR Rules; and (2) the witnesses presented during the 14, 16, and 17 October 2013 hearings before the ad hoc arbitral tribunal are prohibited from disclosing information on the basis of the deliberative process privilege.

The Ruling of the Court

We partially grant the petition.

Arbitration is deemed a special proceeding 13 and governed by the special provisions of RA 9285, its IRR, and the Special ADR Rules. 14 RA 9285 is the general law applicable to all matters and controversies to be resolved through alternative dispute resolution methods. 15 While enacted only in 2004, we held that RA 9285 applies to pending arbitration proceedings since it is a procedural law, which has retroactive effect:

While RA 9285 was passed only in 2004, it nonetheless applies in the instant case since it is a procedural law which has a retroactive effect. Likewise, KOGIES filed its application for arbitration before the KCAB on July 1, 1998 and it is still pending because no arbitral award has yet been rendered. Thus, RA 9285 is applicable to the instant case. Well-settled is the rule that procedural laws are construed to be applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent. As a general rule, the retroactive application of procedural laws does not violate any personal rights because no vested right has yet attached nor arisen from them.16 (Emphasis supplied)

The IRR of RA 9285 reiterate that RA 9285 is procedural in character and applicable to all pending arbitration proceedings. 17 Consistent with Article 2046 of the Civil Code, 18 the Special ADR Rules were formulated and were also applied to all pending arbitration proceedings covered by RA 9285, provided no vested rights are impaired. 19 Thus, contrary to DFA's contention, RA 9285, its IRR, and the Special ADR Rules are applicable to the present arbitration proceeding. The arbitration between the DFA and BCA is still pending, since no arbitral award has yet been rendered. Moreover, DFA did not allege any vested rights impaired by the application of those procedural rules.

RA 9285, its IRR, and the Special ADR Rules provide that any party to an arbitration, whether domestic or foreign, may request the court to provide assistance in taking evidence such as the issuance of subpoena ad testificandum and subpoena duces tecum.20 The Special ADR Rules specifically provide that they shall apply to assistance in taking evidence, 21 and the RTC order granting assistance in taking evidence shall be immediately executory and not subject to reconsideration or appeal. 22 An appeal with the Court of Appeals (CA) is only possible where the RTC denied a petition for assistance in taking evidence. 23 An appeal to the Supreme Court from the CA is allowed only under any of the grounds specified in the Special ADR Rules. 24 We rule that the DFA failed to follow the procedure and the hierarchy of courts provided in RA 9285, its IRR, and the Special ADR Rules, when DFA directly appealed before this Court the RTC Resolution and Orders granting assistance in taking evidence. SDHTEC

DFA contends that the RTC issued the subpoenas on the premise that RA 9285 and the Special ADR Rules apply to this case. However, we find that even without applying RA 9285 and the Special ADR Rules, the RTC still has the authority to issue the subpoenas to assist the parties in taking evidence.

The 1976 UNCITRAL Arbitration Rules, agreed upon by the parties to govern them, state that the "arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable." 25 Established in this jurisdiction is the rule that the law of the place where the contract is made governs, or lex loci contractus.26 Since there is no law designated by the parties as applicable and the Agreement was perfected in the Philippines, "The Arbitration Law," or Republic Act No. 876 (RA 876), applies.

RA 876 empowered arbitrators to subpoena witnesses and documents when the materiality of the testimony has been demonstrated to them. 27 In Transfield Philippines, Inc. v. Luzon Hydro Corporation,28 we held that Section 14 of RA 876 recognizes the right of any party to petition the court to take measures to safeguard and/or conserve any matter which is the subject of the dispute in arbitration.

Considering that this petition was not filed in accordance with RA 9285, the Special ADR Rules and 1976 UNCITRAL Arbitration Rules, this petition should normally be denied. However, we have held time and again that the ends of justice are better served when cases are determined on the merits after all parties are given full opportunity to ventilate their causes and defenses rather than on technicality or some procedural imperfections. 29 More importantly, this case is one of first impression involving the production of evidence in an arbitration case where the deliberative process privilege is invoked.

Thus, DFA insists that we determine whether the evidence sought to be subpoenaed is covered by the deliberative process privilege. DFA contends that the RTC erred in holding that the deliberative process privilege is no longer applicable in this case. According to the RTC, based on Chavez v. Public Estates Authority,30 "acts, transactions or decisions are privileged only before a definite proposition is reached by the agency," and since, in this case, DFA not only made "a definite proposition" but already entered into a contract then the evidence sought to be produced is no longer privileged. 31

We have held in Chavez v. Public Estates Authority32 that:

Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are no "official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation,there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition.

xxx xxx xxx

The right to information, however, does not extend to matters recognized as privileged information under the separation of powers. The right does not also apply to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, which courts have long recognized as confidential. The right may also be subject to other limitations that Congress may impose by law.

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power.This is not the situation in the instant case.

We rule, therefore, that 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. Congress has also prescribed other limitations on the right to information in several legislations. (Emphasis supplied) AScHCD

Contrary to the RTC's ruling, there is nothing in our Chavez v. Public Estates Authority 33 ruling which states that once a "definite proposition" is reached by an agency, the privileged character of a document no longer exists. On the other hand, we hold that before a "definite proposition" is reached by an agency, there are no "official acts, transactions, or decisions" yet which can be accessed by the public under the right to information. Only when there is an official recommendation can a "definite proposition" arise and, accordingly, the public's right to information attaches. However, this right to information has certain limitations and does not cover privileged information to protect the independence of decision-making by the government.

Chavez v. Public Estates Authority34 expressly and unequivocally states that the right to information "should not cover recognized exceptions like privileged information,military and diplomatic secrets and similar matters affecting national security and public order." Clearly, Chavez v. Public Estates Authority35 expressly mandates that "privileged information" should be outside the scope of the constitutional right to information, just like 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.

Deliberative process privilege is one kind of privileged information, which is within the exceptions of the constitutional right to information.In In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses,36 we held that:

Court deliberations are traditionally recognized as privileged communication.Section 2, Rule 10 of the IRSC provides:

Section 2. Confidentiality of court sessions. — Court sessions are executive in character, with only the Members of the Court present. Court deliberations are confidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.

Justice Abad discussed the rationale for the rule in his concurring opinion to the Court Resolution in Arroyo v. De Lima (TRO on Watch List Order case):the rules on confidentiality will enable the Members of the Court to "freely discuss the issues without fear of criticism for holding unpopular positions" or fear of humiliation for one's comments. The privilege against disclosure of these kinds of information/communication is known as deliberative process privilege, involving as it does the deliberative process of reaching a decision."Written advice from a variety of individuals is an important element of the government's decision-making process and that the interchange of advice could be stifled if courts forced the government to disclose those recommendations;" the privilege is intended "to prevent the 'chilling' of deliberative communications."

The privilege is not exclusive to the Judiciary. We have in passing recognized the claim of this privilege by the two other branches of government in Chavez v. Public Estates Authority (speaking through J. Carpio) when the Court declared that —

[t]he information ...like internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. (Emphasis supplied)

In Akbayan v. Aquino,37 we adopted the ruling of the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,38 which stated that the deliberative process privilege protects from disclosure "advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." We explained that "[w]ritten advice from a variety of individuals is an important element of the government's decision-making process and that the interchange of advice could be stifled if courts forced the government to disclose those recommendations";thus, the privilege is intended "to prevent the 'chilling' of deliberative communications." 39

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.

The deliberative process privilege applies if its purpose is served, that is, "to protect the frank exchange of ideas and opinions critical to the government's decision[-]making process where disclosure would discourage such discussion in the future." 40 In Judicial Watch of Florida v. Department of Justice,41 the U.S. District Court for the District of Columbia held that the deliberative process privilege's "ultimate purpose ...is to prevent injury to the quality of agency decisions by allowing government officials freedom to debate alternative approaches in private," and this ultimate purpose would not be served equally well by making the privilege temporary or held to have expired. In Gwich'in Steering Comm. v. Office of the Governor,42 the Supreme Court of Alaska held that communications have not lost the privilege even when the decision that the documents preceded is finally made. The Supreme Court of Alaska held that "the question is not whether the decision has been implemented, or whether sufficient time has passed, but whether disclosure of these preliminary proposals could harm the agency's future decision[-]making by chilling either the submission of such proposals or their forthright consideration."

Traditionally, U.S. courts have established two fundamental requirements, both of which must be met, for the deliberative process privilege to be invoked. 43First, the communication must be predecisional, i.e.,"antecedent to the adoption of an agency policy." Second, the communication must be deliberative, i.e.,"a direct part of the deliberative process in that it makes recommendations or expresses opinions on legal or policy matters." It must reflect the "give-and-take of the consultative process." 44 The Supreme Court of Colorado also took into account other considerations: AcICHD

Courts have also looked to other considerations in assessing whether material is predecisional and deliberative. The function and significance of the document in the agency's decision-making process are relevant. Documents representing the ideas and theories that go into the making of policy, which are privileged, should be distinguished from "binding agency opinions and interpretations" that are "retained and referred to as precedent" and constitute the policy itself.

Furthermore, courts examine the identity and decision-making authority of the office or person issuing the material. A document from a subordinate to a superior official is more likely to be predecisional, "while a document moving in the opposite direction is more likely to contain instructions to staff explaining the reasons for a decision already made."

Finally, in addition to assessing whether the material is predecisional and deliberative, and in order to determine if disclosure of the material is likely to adversely affect the purposes of the privilege, courts inquire whether "the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." As a consequence, the deliberative process privilege typically covers recommendations, advisory opinions, draft documents, proposals, suggestions, and other subjective documents that reflect the personal opinions of the writer rather than the policy of the agency.45 (Emphasis supplied)

Thus, "[t]he deliberative process privilege exempts materials that are 'predecisional' and 'deliberative,' but requires disclosure of policy statements and final opinions 'that have the force of law or explain actions that an agency has already taken.'" 46

In City of Colorado Springs v. White,47 the Supreme Court of Colorado held that the outside consultant's evaluation report of working environment and policies was covered by the deliberative process privilege because the report contained observations on current atmosphere and suggestions on how to improve the division rather than an expression of final agency decision. In Strang v. Collyer,48 the U.S. District Court for the District of Columbia held that the meeting notes that reflect the exchange of opinions between agency personnel or divisions of agency are covered by the deliberative process privilege because they "reflect the agency's group thinking in the process of working out its policy" and are part of the deliberative process in arriving at the final position. In Judicial Watch v. Clinton,49 the U.S. District Court for the District of Columbia held that handwritten notes reflecting preliminary thoughts of agency personnel were properly withheld under the deliberative process privilege. The U.S. District Court reasoned that "disclosure of this type of deliberative material inhibits open debate and discussion, and has a chilling effect on the free exchange of ideas."

This Court applied the deliberative process privilege in In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses 50 and found that court records which are "predecisional" and "deliberative" in nature — in particular, documents and other communications which are part of or related to the deliberative process, i.e.,notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations, and similar papers — are protected and cannot be the subject of a subpoena if judicial privilege is to be preserved. We further held that this privilege is not exclusive to the Judiciary and cited our ruling in Chavez v. Public Estates Authority.51

The deliberative process privilege can also be invoked in arbitration proceedings under RA 9285.

"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." 52 Stated differently, the privilege serves "to assure that subordinates within an agency will feel free to provide the decision[-]maker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action." 53

Under RA 9285, 54 orders of an arbitral tribunal are appealable to the courts. If an official is compelled to testify before an arbitral tribunal and the order of an arbitral tribunal is appealed to the courts, such official can be inhibited by fear of later being subject to public criticism, preventing such official from making candid discussions within his or her agency. The decision of the court is widely published, including details involving the privileged information. This disclosure of privileged information can inhibit a public official from expressing his or her candid opinion. Future quality of deliberative process can be impaired by undue exposure of the decision-making process to public scrutiny after the court decision is made.

Accordingly, a proceeding in the arbitral tribunal does not prevent the possibility of the purpose of the privilege being defeated, if it is not allowed to be invoked. In the same manner, the disclosure of an information covered by the deliberative process privilege to a court arbitrator will defeat the policy bases and purpose of the privilege.

DFA did not waive the privilege in arbitration proceedings under the Agreement. The Agreement does not provide for the waiver of the deliberative process privilege by DFA. The Agreement only provides that:

Section 20.02 None of the parties shall, at any time, before or after the expiration or sooner termination of this Amended BOT Agreement, without the consent of the other party,divulge or suffer or permit its officers, employees, agents or contractors to divulge to any person, other than any of its or their respective officers or employees who require the same to enable them properly to carry out their duties, any of the contents of this Amended BOT Agreement or any information relating to the negotiations concerning the operations, contracts, commercial or financial arrangements or affair[s] of the other parties hereto.Documents marked "CONFIDENTIAL" or the like, providing that such material shall be kept confidential, and shall constitute prima facie evidence that such information contained therein is subject to the terms of this provision.

Section 20.03 The restrictions imposed in Section 20.02 herein shall not apply to the disclosure of any information:

xxx xxx xxx

C. To a court arbitrator or administrative tribunal the course of proceedings before it to which the disclosing party is party;...55 (Emphasis supplied)

Section 20.02 of the Agreement merely allows, with the consent of the other party,disclosure by a party to a court arbitrator or administrative tribunal of the contents of the "Amended BOT Agreement or any information relating to the negotiations concerning the operations, contracts, commercial or financial arrangements or affair[s] of the other parties hereto." There is no express waiver of information forming part of DFA's predecisional deliberative or decision-making process. Section 20.02 does not state that a party to the arbitration is compelled to disclose to the tribunal privileged information in such party's possession.

On the other hand, Section 20.03 merely allows a party, if it chooses, without the consent of the other party,to disclose to the tribunal privileged information in such disclosing party's possession. In short, a party can disclose privileged information in its possession, even without the consent of the other party, if the disclosure is to a tribunal. However, a party cannot be compelled by the other party to disclose privileged information to the tribunal, where such privileged information is in its possession and not in the possession of the party seeking the compulsory disclosure.

Nothing in Section 20.03 mandates compulsory disclosure of privileged information. Section 20.03 merely states that "the restrictions imposed in Section 20.02," referring to the "consent of the other party," shall not apply to a disclosure of privileged information by a party in possession of a privileged information. This is completely different from compelling a party to disclose privileged information in its possession against its own will. ICHDca

Rights cannot be waived if it is contrary to law, public order, public policy,morals, or good customs, or prejudicial to a third person with a right recognized by law. 56 There is a public policy involved in a claim of deliberative process privilege — "the policy of open, frank discussion between subordinate and chief concerning administrative action." 57 Thus, the deliberative process privilege cannot be waived. As we have held in Akbayan v. Aquino,58 the deliberative process privilege is closely related to the presidential communications privilege and protects the public disclosure of information that can compromise the quality of agency decisions:

Closely related to the "presidential communications" privilege is the deliberative process privilege recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck & Co,deliberative process covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated. Notably, the privileged status of such documents rests, not on the need to protect national security but, on the "obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news," the objective of the privilege being to enhance the quality of agency decisions.(Emphasis supplied)

As a qualified privilege, the burden falls upon the government agency asserting the deliberative process privilege to prove that the information in question satisfies both requirements — predecisional and deliberative. 59 "The agency bears the burden of establishing the character of the decision, the deliberative process involved, and the role played by the documents in the course of that process." 60 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. 61 "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." 62

In the present case, considering that the RTC erred in applying our ruling in Chavez v. Public Estates Authority,63 and both BCA's and DFA's assertions of subpoena of evidence and the deliberative process privilege are broad and lack specificity, we will not be able to determine whether the evidence sought to be produced is covered by the deliberative process privilege. The parties are directed to specify their claims before the RTC and, thereafter, the RTC shall determine which evidence is covered by the deliberative process privilege, if there is any, based on the standards provided in this Decision. It is necessary to consider the circumstances surrounding the demand for the evidence to determine whether or not its production is injurious to the consultative functions of government that the privilege of non-disclosure protects. cDHAES

WHEREFORE,we resolve to PARTIALLY GRANT the petition and REMAND this case to the Regional Trial Court of Makati City, Branch 146, to determine whether the documents and records sought to be subpoenaed are protected by the deliberative process privilege as explained in this Decision. The Resolution dated 2 April 2014 issuing a Temporary Restraining Order is superseded by this Decision.

SO ORDERED.

Brion and Mendoza, JJ.,concur.

Del Castillo, * J., is on official leave.

Leonen, J.,see separate concurring opinion.

Separate Opinions

LEONEN, J.,concurring:

This Petition for Review on Certiorari1 assails the Resolution 2 dated September 2, 2013 and the Orders 3 dated October 11, 2013 and January 8, 2014 of Branch 146 of the Regional Trial Court of Makati City. The assailed judgments allowed the issuance of a subpoena duces tecum and subpoena ad testificandum to compel the officers of the Department of Foreign Affairs to testify and present documents to the Ad Hoc Arbitral Tribunal, which was constituted to resolve the issues between the parties.

On September 29, 2000, the Department of Foreign Affairs issued a Notice of Award to BCA International Corporation to undertake its Machine Readable Passport and Visa Project (Project).4 In compliance with the Notice of Award, BCA International Corporation incorporated Philippine Passport Corporation to implement the Project. 5 On February 8, 2001, the Department of Foreign Affairs and Philippine Passport Corporation entered into a Build-Operate-Transfer Agreement. 6

However, Department of Justice Opinion No. 10 dated March 4, 2002 stated that Philippine Passport Corporation had no personality to enter into the Build-Operate-Transfer Agreement since the Project was awarded to BCA International Corporation, not to Philippine Passport Corporation. 7 Thus, the Department of Foreign Affairs and BCA International Corporation entered into an Amended Build-Operate-Transfer Agreement 8 dated April 5, 2002 9 to replace BCA International Corporation as the party to the Agreement. 10

During the implementation of the Project, dispute arose 11 between the parties. The Department of Foreign Affairs sought to terminate the Build-Operate-Transfer Agreement. 12 BCA International Corporation opposed the termination and filed a Request for Arbitration before the Philippine Dispute Resolution Center, Inc.,invoking Section 19.02 of the Agreement: 13

Section 19.02. Failure to Settle Amicably. — If the Dispute cannot be settled amicably within ninety (90) days by mutual discussion as contemplated under Section 19.01 herein, the Dispute shall be settled with finality by an arbitrage tribunal operating under International Law, hereinafter referred to as the "Tribunal," under the UNCITRAL Arbitration Rules contained in Resolution 31/98 adopted by the United Nations General Assembly on December 15, 1976, and entitled "Arbitration Rules on the United Nations Commission on the International Trade Law." The DFA and the BCA undertake to abide by and implement the arbitration award. The place of arbitration shall be Pasay City, Philippines, or such other place as may mutually be agreed upon by both parties. The arbitration proceeding shall be conducted in the English language. 14 (Emphasis in the original)

On June 29, 2009, the Ad Hoc Tribunal 15 was constituted to resolve the dispute. 16 On April 15, 2013, the Ad Hoc Tribunal granted BCA International Corporation's motion to apply for a subpoena to compel allegedly hostile witnesses. 17

On May 15, 2013, BCA International Corporation filed before Branch 146 of the Regional Trial Court of Makati City a Petition 18 under Article 5.27 (a) 19 of the Implementing Rules and Regulations of Republic Act No. 9285. 20 The Petition sought the issuance of a subpoena ad testificandum and a subpoena duces tecum to the following witnesses and the documents within their custody: 21

Witness	Documents to be produced
1. Secretary of	a. Request for Proposal dated September 10, 1999 for
Foreign Affairs or	the MRP/V Project;
his	b. Notice of Award dated September 29, 2000
representative/s,	awarding the MRP/V Project in favor of BCA and
specifically	requiring BCA to incorporate a Project Company to
Undersecretary	implement the MRP/V Project;
Franklin M.	c. Department of Foreign Affairs Machine Readable
Ebdalin and	and Passport and Visa Project Build-Operate-
Ambassador Belen	Transfer Agreement dated February 8, 2001;
F. Anota	d. Department of Foreign Affairs Machine Readable
	Passport and Visa Project Amended Build-Operate-
	Transfer Agreement dated April 5, 2002;
	e. Documents, records, papers and correspondence
	between DFA and BCA regarding the negotiations
	for the contract of lease of the PNB building, which
	was identified in the Request for Proposal as the
	Central Facility Site, and the failure of said
	negotiations;
	f. Documents, records, reports, studies, papers and
	correspondence between DFA and BCA regarding
	the search for alternative Central Facility Site;
	g. Documents, records, papers and correspondence
	between DFA and BCA regarding the latter's
	submission of the Project Master Plan (Phase One of
	the MRP/V Project);
	h. Documents, records, papers and correspondence
	among DFA, DFA's Project Planning Team,
	Questronix Corporation, MRP/V Advisory Board and
	other related government agencies, and BCA
	regarding the recommendation for the issuance of the
	Certificate of Acceptance in favor of BCA;
	i. Certificate of Acceptance for Phase One dated June
	9, 2004 issued by DFA;
	j. Documents, records, papers and correspondence
	between DFA and BCA regarding the approval of the
	Star Mall complex as the Central Facility Site;
	k. Documents, records, papers and correspondence
	among DFA, Questronix Corporation, MRP/V
	Advisory Board and other related government
	agencies, and BCA regarding the recommendation
	for the approval of the Star Mall complex as the
	Central Facility Site;
	l. Documents, records, papers and correspondence
	between DFA and BCA regarding the DFA's request
	for BCA to terminate its Assignment Agreement with
	Philpass, including BCA's compliance therewith;
	m. Documents, records, papers and correspondence
	between DFA and BCA regarding the DFA's demand
	for BCA to prove its financial capability to
	implement the MRP/V Project, including the
	compliance therewith by BCA;
	n. Documents, records, papers and correspondence
	between DFA and BCA regarding the DFA's attempt
	to terminate the Amended BOT Agreement,
	including BCA's response to DFA and BCA's
	attempts to mutually discuss the matter with DFA;
	o. Documents, records, papers and correspondence
	between DFA and MRP/V Advisory Board, DTI-
	BOT Center, Department of Finance and
	Commission on Audit regarding the delays in the
	implementation of the MRP/V Project, DFA's
	requirement for BCA to prove its financial capability,
	and the opinions of the said government agencies in
	relation to DFA's attempt to terminate the Amended
	BOT Agreement; and
	p. Other related documents, records, papers and
	correspondence.
2. Secretary of	a. Documents, records, papers and correspondence
Finance or his	between DFA and Department of Finance regarding
representative/s,	the DFA's requirement for BCA to prove its financial
specifically former	capability to implement the MRP/V Project and its
Secretary of	former opinion thereon;
Finance Juanita D.	b. Documents, records, papers and correspondence
Amatong	between DFA and DOF regarding BCA's compliance
	with DFA's demand for BCA to further prove its
	financial capability to implement the MRP/V Project;
	c. Documents, records, papers and correspondence
	between DFA and DOF regarding the delays in the
	implementation of the MRP/V Project;
	d. Documents, records, papers and correspondence
	between DFA and DOF regarding the DFA's
	attempted termination of the Amended BOT
	Agreement; and
	e. Other related documents, records, papers and
	correspondence.
3. Chairman of the	a. Documents, records, papers and correspondence
Commission on	between DFA and COA regarding the COA's
Audit or her	conduct of a sectoral performance audit on the
representative/s	MRP/V Project;
specifically Ms.	b. Documents, records, papers and correspondence
Iluminada M. V.	specifically between DFA and COA regarding the
Fabroa (Director	delays in and its recommendation to fast-track the
IV)	implementation of the MRP/V Project;
	c. Documents, records, papers and correspondence
	between DFA and COA regarding COA's advice to
	cancel the Assignment Agreement between BCA and
	Philpass "for being contrary to existing laws and
	regulations and DOJ opinion";
	d. Documents, records, papers and correspondence
	between DFA and COA regarding DFA's attempted
	termination of the Amended BOT Agreement; and
	e. Other related documents, records, papers and
	correspondence.
4. Executive	a. Documents, records, papers and correspondence
Director or any	between DFA and BOT Center regarding the delays
officer or	in the implementation of the MRP/V Project,
representative of	including DFA's delay in the issuance of the
the Department of	Certificate of the Department Acceptance for Phase
Trade and Industry	One of the MRP/V Project and in approving the
Build-Operate-	Central Facility Site at the Star Mall complex;
Transfer Center,	b. Documents, records, papers and correspondence
specifically	between DFA and BOT Center regarding BCA's
Messengers Noel	financial capability and the BOT Center's opinion on
Eli B. Kintanar,	DFA's demand for BCA to further prove its financial
Rafaelito H. Taruc	capability to implement the MRP/V Project;
and Luisito Ucab	c. Documents, records, papers and correspondence
	between DFA and BOT Center regarding the DFA's
	attempt to terminate the Amended BOT Agreement,
	including the BOT Center's unsolicited advice dated
	December 23, 2005 stating that the issuance of the
	Notice of Termination was "precipitate, and done
	without first carefully ensuring that there were
	sufficient grounds to warrant such an issuance" and
	was "devoid of merit";
	d. Documents, records, papers and correspondence
	between DFA and BOT Center regarding the DFA's
	unwarranted refusal to approve BCA's proposal to
	obtain the required financing by allowing the entry of
	a "strategic investor";and
	e. Other related documents, records, papers and
	correspondence.
5. Chairman of the	a. Documents, records, papers and correspondence
DFA MRP/V	between DFA and the MRP/V Advisory Board
Advisory Board or	regarding BCA['s] performance of its obligations for
his	Phase One of the MRP/V Project, the Advisory
representative/s,	Board's recommendation for the issuance of the
specifically DFA	Certificate of Acceptance of Phase One of the
Undersecretary	MRP/V Project and its preparation of the draft of the
Franklin M.	Certificate of Acceptance;
Ebdalin and	b. Documents, records, papers and correspondence
MRP/V Project	between DFA and the MRP/V Advisory Board
Manager,	regarding the latter's recommendation for the DFA to
specifically Atty.	approve the Star Mall complex as the Central Facility
Voltaire Mauricio	Site;
	c. Documents, records, papers and correspondence
	between DFA and the MRP/V Advisory Board
	regarding BCA's request to allow the investment of
	S.F. Pass International in Philpass;
	d. Documents, records, papers and correspondence
	between DFA and the MRP/V Advisory Board
	regarding BCA's financial capability and the MRP/V
	Advisory Board's opinion on DFA's demand for
	BCA to further prove its financial capability to
	implement the MRP/V Project;
	e. Documents, records, papers and correspondence
	between DFA and the MRP/V Advisory Board
	regarding the DFA's attempted termination of the
	Amended BOT Agreement; and
	f. Other related documents, records, papers and
	correspondence. 22

 

In its Comment 23 dated July 1, 2013, the Department of Foreign Affairs alleged that the information sought from the proposed witnesses and documents were protected by the deliberative process privilege. 24

On September 2, 2013, the Regional Trial Court issued the Resolution 25 granting the Petition pursuant to Rule 9.8 26 of the Special Rules of Court on Alternative Dispute Resolution. 27 The trial court held that the information sought to be produced was no longer protected by the deliberative process privilege. 28 Citing Chavez v. Public Estates Authority,29 it found that the Department of Foreign Affairs not only made a definite proposition but had already entered into a contract. 30 Thus, any evidence sought to be produced was no longer covered under the privilege. 31

On September 6, 2013, the trial court issued a subpoena duces tecum and a subpoena ad testificandum ordering the persons listed in the Petition to appear and bring the required documents before the Ad Hoc Tribunal on October 14, 15, 16, and 17, 2013. 32 On September 12, 2013, the Department of Foreign Affairs filed a Motion to Quash Subpoena Duces Tecum and Ad Testificandum,33 which was opposed 34 by BCA International Corporation.

On October 11, 2013, the Regional Trial Court issued the Order 35 denying the Motion to Quash since it was actually a motion for reconsideration, which was prohibited under Rule 9.9 36 of the Special Rules of Court on Alternative Dispute Resolution. 37 The Department of Foreign Affairs moved for reconsideration 38 of this Order.

On October 14, 15, 16, and 17, 2013, Former Undersecretary of Foreign Affairs Franklin D. Ebdalin, Project Manager Atty. Voltaire Mauricio, and Luisito Ubac of the Department of Trade and Industry testified before the Ad Hoc Tribunal. 39 On January 8, 2014, the trial court issued the Order 40 denying the Department of Foreign Affairs' Motion for Reconsideration on the ground that the appearance of the witnesses before the Tribunal rendered the action moot. 41

Aggrieved, the Department of Foreign Affairs filed before this Court a Petition for Review with Urgent Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction. 42 In the Resolution dated April 2, 2014, this Court issued a temporary restraining order enjoining the Ad Hoc Tribunal from taking cognizance of the witnesses' testimonies. 43

The Department of Foreign Affairs argues that the Regional Trial Court erred in applying the Implementing Rules and Regulations of Republic Act No. 9285 and the Special Rules of Court on Alternative Dispute Resolution, considering that both parties agreed to be bound by the Arbitration Rules on the United Nations Commission on the International Trade Law (1976 UNCITRAL Arbitration Rules). 44 It further argues that the evidence sought by BCA International Corporation is covered by the deliberative process privilege. 45

BCA International Corporation, on the other hand, argues that this Court has no jurisdiction to intervene in a private arbitration under (a) Article 5 46 of the UNCITRAL Model Law; (b) Article 5.4 47 of the Implementing Rules and Regulations of Republic Act No. 9285; and (c) Rule 1.1 48 of the Special Rules of Court on Alternative Dispute Resolution. 49 BCA International Corporation insists that even if this Court did have jurisdiction, the evidence sought from the Department of Foreign Affairs would not be a state secret that, if revealed, would injure the public interest. 50 It argues that in any case, the Department of Foreign Affairs waived its right to confidentiality pursuant to Section 20.03 of the Amended Build-Operate-Transfer Agreement. 51 cTDaEH

From the arguments of the parties, the issues for this Court's resolution are:

First, which arbitration rules should apply to this case; and

Second, whether the evidence sought by BCA International Corporation from the Department of Foreign Affairs is covered by the deliberative process privilege.

I

Both parties stipulated in the Amended Build-Operate-Transfer Agreement that in case of dispute, the matter shall be brought to arbitration under the 1976 UNCITRAL Arbitration Rules, thus:

Section 19.02. Failure to Settle Amicably. — If the Dispute cannot be settled amicably within ninety (90) days by mutual discussion as contemplated under Section 19.01 herein, the Dispute shall be settled with finality by an arbitrage tribunal operating under International Law, hereinafter referred to as the "Tribunal," under the UNCITRAL Arbitration Rules contained in Resolution 31/98 adopted by the United Nations General Assembly on December 15, 1976, and entitled "Arbitration Rules on the United Nations Commission on the International Trade Law." The DFA and the BCA undertake to abide by and implement the arbitration award. The place of arbitration shall be Pasay City, Philippines, or such other place as may mutually be agreed upon by both parties. The arbitration proceeding shall be conducted in the English language. 52 (Emphasis in the original)

Article 33 (1) of the 1976 UNCITRAL Arbitration Rules mandates that the arbitration tribunal shall apply the law designated by the parties. If the parties fail to designate the applicable law, the applicable law shall be that which is determined by the conflict of laws:

Article 33

1. The arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.

On the issue of which law applies in this case, I concur with the ponencia.

Since both parties are Filipino and did not designate the applicable law in the Agreement dated April 5, 2002, the applicable law is Republic Act No. 876. 53 Section 14 of Republic Act No. 876 allows the arbitrators to issue subpoenas at any time before the issuance of the award:

SEC. 14. Subpoena and subpoena duces tecum. — Arbitrators shall have the power to require any person to attend a hearing as a witness. They shall have the power to subpoena witnesses and documents when the relevancy of the testimony and the materiality thereof has been demonstrated to the arbitrators. Arbitrators may also require the retirement of any witness during the testimony of any other witness. All of the arbitrators appointed in any controversy must attend all the hearings in that matter and hear all the allegations and proofs of the parties; but an award by the majority of them is valid unless the concurrence of all of them is expressly required in the submission or contract to arbitrate. The arbitrator or arbitrators shall have the power at any time, before rendering the award, without prejudice to the rights of any party to petition the court to take measures to safeguard and/or conserve any matter which is the subject of the dispute in arbitration.

Republic Act No. 9285, 54 its Implementing Rules and Regulations, 55 and the Special Rules on Alternative Dispute Resolution 56 may also apply since these are procedural laws that may be applied retroactively. 57

II

The law recognizes the fundamental right of the People to be informed of matters of public concern. Article 3, Section 7 of the Constitution provides:

ARTICLE III

xxx xxx xxx

SECTION 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.

Similarly, Article II, Section 28 of the Constitution provides:

ARTICLE II

xxx xxx xxx

SECTION 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.

The right to information is not absolute and is "subject to limitations as may be provided by law." 58 One of the limitations imposed on the right to information is that of executive privilege.

In Almonte v. Vasquez,59 Former Associate Justice Vicente V. Mendoza introduced the concept of governmental privilege against public disclosure:

At common law a governmental privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic and similar matters. This privilege is based upon public interest of such paramount importance as in and of itself transcending the individual interests of a private citizen, even though, as a consequence thereof, the plaintiff cannot enforce his legal rights.

In addition, in the litigation over the Watergate tape subpoena in 1973, the U.S. Supreme Court recognized the right of the President to the confidentiality of his conversations and correspondence, which it likened to "the claim of confidentiality of judicial deliberations." Said the Court in United States v. Nixon:

The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making. A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of the government and inextricably rooted in the separation of powers under the Constitution. ... CHTAIc

Thus, the Court for the first time gave executive privilege a constitutional status and a new name, although not necessarily a new birth.

xxx xxx xxx

On the other hand, where the claim of confidentiality does not rest on the need to protect military, diplomatic or other national security secrets but on a general public interest in the confidentiality of his conversations, courts have declined to find in the Constitution an absolute privilege of the President against a subpoena considered essential to the enforcement of criminal laws. 60

Executive privilege has been defined as "the power of the Government to withhold information from the public, the courts, and the Congress" 61 or "the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and ultimately the public." 62

Executive privilege has been further defined in Neri v. Senate Committee on Accountability of Public Officers and Investigations, et al.63 to encompass two (2) kinds of privileged information: (1) presidential communications privilege and (2) deliberative process privilege. Thus:

[T]here are two (2) kinds of executive privilege: one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to "communications, documents or other materials that reflect presidential decision-making and deliberations and that the President believes should remain confidential." The latter includes "advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated."

Accordingly, they are characterized by marked distinctions. Presidential communications privilege applies to decision-making of the President while, the deliberative process privilege, to decision-making of executive officials. The first is rooted in the constitutional principle of separation of power and the President's unique constitutional role; the second on common law privilege. Unlike the deliberative process privilege, the presidential communications privilege applies to documents in their entirety, and covers final and post-decisional materials as well as pre-deliberative ones. As a consequence, congressional or judicial negation of the presidential communications privilege is always subject to greater scrutiny than denial of the deliberative process privilege. 64

Unlike state secrets, the purpose of the privilege is not for the protection of national security. 65 The purpose is to protect the free exchange of ideas between those tasked with decision-making in the executive branch and to prevent public confusion before an agency has adopted a final policy decision:

Courts have identified three purposes in support of the privilege: (1) it protects candid discussions within an agency; (2) it prevents public confusion from premature disclosure of agency opinions before the agency establishes final policy; and (3) 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. For the privilege to be validly asserted, the material must be pre-decisional and deliberative. 66

Information is pre-decisional if no final decision has been made. On the other hand, information is deliberative if it exposes the decision-making process of the agency:

A document is "predecisional" under the deliberative process privilege if it precedes, in temporal sequence, the decision to which it relates. In other words, communications are considered predecisional if they were made in the attempt to reach a final conclusion.

A material is "deliberative," on the other hand, if it reflects the give-and-take of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency. If the disclosure of the information would expose the government's decision-making process in a way that discourages candid discussion among the decision-makers (thereby undermining the courts' ability to perform their functions),the information is deemed privileged. 67

Chavez does not mention deliberative process privilege per se. However, it differentiates the nature and duration of governmental privilege from that of public disclosure:

Information, however, on on-going evaluation or review of bids or proposals being undertaken by the bidding or review committee is not immediately accessible under the right to information. While the evaluation or review is still on-going, there are "no official acts, transactions, or decisions" on the bids or proposals. However, once the committee makes its official recommendation, there arises a "definite proposition" on the part of the government. From this moment, the public's right to information attaches, and any citizen can access all the non-proprietary information leading to such definite proposition. In Chavez v. PCGG,the Court ruled as follows:

Considering the intent of the framers of the Constitution, we believe that it is incumbent upon the PCGG and its officers, as well as other government representatives, to disclose sufficient public information on any proposed settlement they have decided to take up with the ostensible owners and holders of ill-gotten wealth. Such information, though, must pertain to definite propositions of the government, not necessarily to intra-agency or inter-agency recommendations or communications during the stage when common assertions are still in the process of being formulated or are in the "exploratory" stage. There is need, of course, to observe the same restrictions on disclosure of information in general, as discussed earlier — such as on matters involving national security, diplomatic or foreign relations, intelligence and other classified information. EATCcI

xxx xxx xxx

There is no claim by PEA that the information demanded by petitioner is privileged information rooted in the separation of powers. The information does not cover Presidential conversations, correspondences, or discussions during closed-door Cabinet meetings which, like internal deliberations of the Supreme Court and other collegiate courts, or executive sessions of either house of Congress, are recognized as confidential. This kind of information cannot be pried open by a co-equal branch of government. A frank exchange of exploratory ideas and assessments, free from the glare of publicity and pressure by interested parties, is essential to protect the independence of decision-making of those tasked to exercise Presidential, Legislative and Judicial power. This is not the situation in the instant case.

We rule, therefore, that 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.Congress has also prescribed other limitations on the right to information in several legislations. 68 (Emphasis supplied)

Thus, for the information to be covered by the deliberative process privilege, it must be (1) pre-decisional and (2) deliberative. The privilege ends when the executive agency adopts a definite proposition. Akbayan v. Aquino,69 however, qualified that the privilege may continue even after a definite proposition has been made if the information concerns matters of national security, diplomatic relations, and public order or if public disclosure has been limited by law. 70

III

In this case, the Regional Trial Court issued a subpoena duces tecum and a subpoena ad testificandum on the basis that the deliberative process privilege does not apply since the Department of Foreign Affairs already reached a definite proposition when it entered into the contract.

Chavez defines definite proposition as an "official recommendation" 71 or "official acts, transactions, or decisions" 72 without need of a consummated contract:

Contrary to AMARI's contention, the commissioners of the 1986 Constitutional Commission understood that the right to information "contemplates inclusion of negotiations leading to the consummation of the transaction." Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise, the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous to the government or even illegal, becomes a fait accompli.This negates the State policy of full transparency on matters of public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its avowed "policy of full disclosure of all its transactions involving public interest."

The right covers three categories of information which are "matters of public concern," namely: (1) official records; (2) documents and papers pertaining to official acts, transactions and decisions; and (3) government research data used in formulating policies. The first category refers to any document that is part of the public records in the custody of government agencies or officials. The second category refers to documents and papers recording, evidencing, establishing, confirming, supporting, justifying or explaining official acts, transactions or decisions of government agencies or officials. The third category refers to research data, whether raw, collated or processed, owned by the government and used in formulating government policies.

The information that petitioner may access on the renegotiation of the JVA includes evaluation reports, recommendations, legal and expert opinions, minutes of meetings, terms of reference and other documents attached to such reports or minutes, all relating to the JVA. However, the right to information does not compel PEA to prepare lists, abstracts, summaries and the like relating to the renegotiation of the JVA. The right only affords access to records, documents and papers, which means the opportunity to inspect and copy them. One who exercises the right must copy the records, documents and papers at his expense. The exercise of the right is also subject to reasonable regulations to protect the integrity of the public records and to minimize disruption to government operations, like rules specifying when and how to conduct the inspection and copying.

The right to information, however, does not extend to matters recognized as privileged information under the separation of powers. The right does not also apply to information on military and diplomatic secrets, information affecting national security, and information on investigations of crimes by law enforcement agencies before the prosecution of the accused, which courts have long recognized as confidential. The right may also be subject to other limitations that Congress may impose by law. 73

The Department of Foreign Affairs claims that the definite propositions in this case concern the implementation and the proposed termination of the Amended Build-Operate-Transfer Agreement, and not necessarily the signing of the Agreement. 74 However, according to the Certificate of Acceptance of Phase I, 75 the Department of Foreign Affairs officially approved the implementation of the Agreement. 76 The Department of Foreign Affairs also alleges that it was "constrained to cancel the agreement." 77 Thus, the Department of Foreign Affairs made official recommendations concerning the implementation and termination of the Agreement. It should cease to be covered by the deliberative process privilege.

There is a need to further explain what constitutes definite propositions within the context of deliberative process privilege. Chavez did not require a consummated contract and held that even a proposed contract could be considered a definite proposition if there were official acts, transactions, and decisions that precipitated it. There is a lacuna, as in this case, as to what may constitute definite propositions when a perfected contract is in the process of being consummated.

IV

The deliberative process privilege may have already been waived by the Department of Foreign Affairs in the Amended Build-Operate-Transfer Agreement.

The deliberative process privilege is lesser in scope than the presidential communications privilege. Its coverage and duration are limited. It stands to reason that the privilege may be waived unless the information concerns national security, diplomatic relations, or public order.

In Sections 20.02 and 20.03 of the Amended Build-Operate-Transfer Agreement, the parties agreed to keep information relating to negotiations confidential, subject to certain limitations:

Section 20.02.None of the parties shall, at any time, before or after the expiration or sooner termination of this Amended BOT Agreement, without the consent of the other party, divulge or suffer or permit its officers, employees, agents or contractors to divulge to any person, other than any of its respective officers or employees who require the same to enable them to properly carry out their duties, any of the contents of this Amended BOT Agreement or any information relating to the negotiations concerning the operations, contracts, commercial or financial arrangements or affair of the other parties hereto. Documents marked "CONFIDENTIAL" or the like, providing that such material shall be kept confidential, and shall constitute prima facie evidence that such information contained therein is subject to the terms of this provision.

Section 20.03.The restrictions imposed in Section 20.02 herein shall not apply to the disclosure of any information:

A. Which may now or hereafter come into public knowledge otherwise than as a result of a breach of an undertaking of confidentiality, or which is obtainable with no more than reasonable diligence from sources other than any of the parties hereto; CAacTH

B. Which is required by law to be disclosed to a [sic] any person who is authorized by law to receive the same;

C. To a court arbitrator or administrative tribunal the course of proceedings before it to which the disclosing party is party;or

D. To any consultants, banks, financiers, or legal or financial advisors of the disclosing party. 78 (Emphasis supplied)

The Department of Foreign Affairs was a party to the Amended Build-Operate-Transfer Agreement. While it stipulated that all matters concerning the contract were confidential, it similarly stipulated that information could be disclosed to a court arbitrator. If it intended to exercise its privilege to keep all matters concerning the Amended Build-Operate-Transfer Agreement including negotiations concerning its implementation confidential, it should not have agreed to the exceptions in Section 20.03 of the Agreement.

This stipulation, however, only affects disclosures made by officers of the Department of Foreign Affairs. The Department of Finance and the Commission on Audit were not parties to the Amended Build-Operate-Transfer Agreement; hence, they could still validly invoke the deliberative process privilege.

V

The deliberative process privilege may not always apply to arbitration proceedings under Republic Act No. 9285.

The deliberative process privilege is a privilege that an officer of an executive department may invoke to prevent public disclosure of any information that may compromise its decision-making capability. Its purpose "rests most fundamentally on the belief that were agencies forced to operate in a fishbowl, frank exchange of ideas and opinions would cease and the quality of administrative decisions would consequently suffer." 79 This is to prevent subjecting an agency's decision-making process to public opinion before any definite policy action has been made.

Thus, the privilege may lose its purpose when the disclosure is not to the public. Here, the Department of Foreign Affairs opposed the disclosure of information to the Ad Hoc Tribunal by invoking the privilege, but the proceedings of the Ad Hoc Tribunal are not made public. Republic Act No. 9285 requires confidentiality in all arbitration proceedings:

SEC. 23. Confidentiality of Arbitration Proceedings. — The arbitration proceedings, including the records, evidence and the arbitral award, shall be considered confidential and shall not be published except (1) with the consent of the parties, or (2) for the limited purpose of disclosing to the court of relevant documents in cases where resort to the court is allowed herein: Provided, however, That the court in which the action or the appeal is pending may issue a protective order to prevent or prohibit disclosure of documents or information containing secret processes, developments, research and other information where it is shown that the applicant shall be materially prejudiced by an authorized disclosure thereof. (Emphasis in the original)

Thus, considering that the records of the Ad Hoc Tribunal are confidential in nature, there could not have been any need for the Department of Foreign Affairs to invoke the deliberative process privilege.

ACCORDINGLY,I vote to GRANT the Petition.

Footnotes

* On official leave.

1. Rollo, pp. 17-45. Under Rule 45 of the 1997 Rules of Civil Procedure.

2. Id. at 46-49. Penned by Presiding Judge Encarnacion Jaja G. Moya.

3. Id. at 50.

4. Id. at 51-56.

5. Id. at 264.

6. Composed of Atty. Danilo L. Concepcion as chairman, and Dean Custodio O. Parlade and Atty. Antonio P. Jamon, as members.

7. Rollo,pp. 83-84.

8. Id. at 68-80.

9. Id. at 72-77.

10. 433 Phil. 506 (2002).

11. Rollo,pp. 54-55.

12. Id. at 55.

13. The Arbitration Law or Republic Act No. 876, Section 22; Special ADR Rules, Rule 1.2.

14. Rules of Court, Rule 72, Section 2 provides: "In the absence of special provisions, the rules provided for in ordinary actions shall be, as far as practicable, applicable in special proceedings."

15. Department of Foreign Affairs v. Judge Falcon,644 Phil. 105 (2010).

16. Korea Technologies Co., Ltd. v. Judge Lerma,566 Phil. 1, 27 (2008).

17. IRR of RA 9285, Article 8.4.

18. Civil Code, Article 2046: "The appointment of arbitrators and the procedure for arbitration shall be governed by the provisions of such rules of court as the Supreme Court shall promulgate."

19. Special ADR Rules, Rule 24.1: "Considering its procedural character, the Special ADR Rules shall be applicable to all pending arbitration, mediation or other ADR forms covered by the ADR Act, unless the parties agree otherwise. The Special ADR Rules, however, may not prejudice or impair vested rights in accordance with law."

20. IRR of RA 9285, Rules 4.27 and 5.27; Special ADR Rules, Rules 9.1 and 9.5.

21. Special ADR Rules, Rule 1.1 (g).

22. Special ADR Rules, Rules 9.9 and 19.1.

23. Special ADR Rules, Rules 19.12 and 19.26.

24. Special ADR Rules, Rules 19.36 and 19.37.

25. Article 33 (1) of the 1976 UNCITRAL Arbitration Rules.

26. Korea Technologies Co., Ltd. v. Judge Lerma, supra note 16.

27. Section 14 of RA 876.

28. 523 Phil. 374 (2006).

29. Department of Foreign Affairs v. Judge Falcon, supra note 15, citing Ateneo de Naga University v. Manalo,497 Phil. 635 (2005).

30. Supra note 10.

31. Rollo,pp. 54-55.

32. Supra note 10, at 531-532, 534.

33. Supra note 10.

34. Supra note 10.

35. Supra note 10.

36. In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of February 10, 2012 and the Various Letters for the Impeachment Prosecution Panel Dated January 19 and 25, 2012,14 February 2012 (unsigned Resolution).

37. 580 Phil. 422 (2008).

38. 421 U.S. 132 (1975).

39. In Re: Production of Court Records and Documents and the Attendance of Court Officials and Employees as Witnesses under the Subpoenas of February 10, 2012 and the Various Letters for the Impeachment Prosecution Panel Dated January 19 and 25, 2012, supra note 35.

40. Vandelay Entm't, LLC v. Fallin,2014 OK 109 (16 December 2014); City of Colorado Springs v. White,967 P.2d 1042 (1998).

41. 102 F. Supp. 2d 6 (2000).

42. 10 P.3d 572 (2002).

43. Pacific Coast Shellfish Growers Association v. United States Army Corps of Engineers,2016 U.S. Dist. LEXIS 68814 (W.D. Wash. 24 May 2016); Judicial Watch, Inc. v. Department of Justice,306 F. Supp. 2d 58 (D.D.C. 2004); Gwich'in Steering Comm. v. Office of the Governor, supra note 41; Judicial Watch of Florida v. Department of Justice, supra note 40; City of Colorado Springs v. White,967 P.2d 1042 (1998); Judicial Watch v. Clinton,880 F. Supp. 1 (D.D.C. 1995); Strang v. Collyer,710 F. Supp. 9 (D.D.C. 1989); Fulbright & Jaworski v. Dep't. of the Treasury,545 F. Supp. 615 (D.D.C. 1982).

44. Id.

45. City of Colorado Springs v. White,967 P.2d 1042 (1998).

46. Fulbright & Jaworski v. Dep't. of Treasury,545 F. Supp. 615 (D.D.C. 1982).

47. Supra.

48. 710 F. Supp. 9 (D.D.C. 1989).

49. 880 F. Supp. I (D.D.C. 1995).

50. Supra note 36.

51. Supra note 10.

52. City of Colorado Springs v. White, supra note 45.

53. Judicial Watch v. Clinton, supra.

54. RA 9285, Section 32 provides that: "Domestic arbitration shall continue to be governed by Republic Act No. 876, otherwise known as "The Arbitration Law" as amended by this Chapter. . . . ." RA 876, Section 29 provides that: "An appeal may be taken from an order made in a proceeding under this Act, or from a judgment entered upon an award through certiorari proceedings, but such appeals shall be limited to questions of law. The proceedings upon such an appeal, including the judgment thereon shall be governed by the Rules of Court in so far as they are applicable."

55. Rollo,pp. 264-265.

56. Civil Code, Article 6.

57. Kaiser Aluminum & Chemical Corp. v. United States,157 F.Supp. 939 (1958).

58. Supra note 37, at 475.

59. Vandelay Entm't, LLC v. Fallin,2014 OK 109 (16 December 2014); City of Colorado Springs v. White, supra note 45.

60. Strang v. Collyer, supra note 48.

61. City of Colorado Springs v. White, supra note 45.

62. Supra note 45.

63. Supra note 10.

LEONEN, J.,concurring:

1. Rollo,pp. 17-45.

2. Id. at 51-56. The Resolution was penned by Judge Encarnacion Jaja G. Moya of Branch 146 of the Regional Trial Court, Makati City.

3. Id. at 46-48 and 50. The Orders were penned by Judge Encarnacion Jaja G. Moya of Branch 146 of the Regional Trial Court, Makati City.

4. Id. at 86.

5. Id.

6. Id. at 219-242, Annex 1 of Comment.

7. Id. at 193, Comment.

8. Id. at 85-119, Annex G of Petition.

9. Petitioner alleges that the Agreement was dated April 5, 2002 while respondent alleges that it was dated April 2, 2002. The Agreement is undated but was notarized on April 5, 2002.

10. Rollo,p. 193.

11. Petitioner alleges that respondent was financially incapable of implementing the Project (Id. at 19),while respondent alleges that petitioner committed numerous delays in the Project's implementation (Id. at 193-194).

12. Ponencia, pp. 1-2.

13. Id. at 2.

14. Rollo,p. 106.

15. Id. at 20. The Tribunal was composed of Dean Danilo Concepcion as Chair, and Dean Custodio O. Parlade and Professor Antonio P. Jamon as Members.

16. Ponencia, p. 2.

17. Rollo,p. 20.

18. Id. at 68-82.

19. DOJ Dept. Circ. No. 98 (2009),art. 5.27 (a) provides:

  Article 5.27. Court Assistance in Taking Evidence and Other Matters. (a) The arbitral tribunal or a party, with the approval of the arbitral tribunal may request from a court, assistance in taking evidence such as the issuance of subpoena ad testificandum and subpoena duces tecum,deposition taking, site or ocular inspection, and physical examination of properties. The court may grant the request within its competence and according to its rules on taking evidence.

20. Alternative Dispute Resolution Act of 2004 (2004).

21. Ponencia, p. 2.

22. Id. at 2-5.

23. Rollo,pp. 134-146.

24. Id. at 26.

25. Id. at 51-56.

26. A.M. No. 07-11-08-SC (2009), rule 9.8 provides:

  Rule 9.8. Court action. — If the evidence sought is not privileged, and is material and relevant, the court shall grant the assistance in taking evidence requested and shall order petitioner to pay costs attendant to such assistance.

27. A.M. No. 07-11-08-SC (2009).

28. Rollo,p. 52.

29. 433 Phil. 506 (2002)[Per J. Carpio, En Banc].

30. Rollo,p. 55.

31. Id.

32. Ponencia, p. 6.

33. Rollo,pp. 147-165.

34. Id. at 166-177.

35. Id. at 46-48.

36. A.M. No. 07-11-08-SC (2009), rule 9.9 provides:

  Rule 9.9. Relief against court action. — The order granting assistance in taking evidence shall be immediately executory and not subject to reconsideration or appeal. If the court declines to grant assistance in taking evidence, the petitioner may file a motion for reconsideration or appeal.

37. Rollo,p. 48.

38. Id. at 57-64.

39. Id. at 28.

40. Id. at 50.

41. Id.

42. Id. at 17-45.

43. Ponencia, p. 6.

44. Rollo,29-31.

45. Id. at 32-40.

46. United Nations Commission on International Trade Law, UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 .uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html> (visited June 27, 2016). Article 5 provides:

    Article 5. Extent of court intervention. —

  In matters governed by this Law, no court shall intervene except where so provided in this Law.

47. DOJ Dept. Circ. No. 98 (2009),art. 5.4 provides:

    Article 5.4.Extent of Court Intervention. In matters governed by this Chapter, no court shall intervene except in accordance with the Special ADR Rules.

48. A.M. No. 07-11-08-SC (2009), rule 1.1 provides:

  Rule 1.1. Subject matter and governing rules. — The Special Rules of Court on Alternative Dispute Resolution (the "Special ADR Rules") shall apply to and govern the following cases:

  a. Relief on the issue of Existence, Validity, or Enforceability of the Arbitration Agreement;

  b. Referral to Alternative Dispute Resolution ("ADR");

  c. Interim Measures of Protection;

  d. Appointment of Arbitrator;

  e. Challenge to Appointment of Arbitrator;

  f. Termination of Mandate of Arbitrator;

  g. Assistance in Taking Evidence;

  h. Confirmation, Correction or Vacation of Award in Domestic Arbitration;

  i. Recognition and Enforcement or Setting Aside of an Award in International Commercial Arbitration;

  j. Recognition and Enforcement of a Foreign Arbitral Award;

  k. Confidentiality/Protective Orders; and

  l. Deposit and Enforcement of Mediated Settlement Agreements.

49. Rollo,pp. 198-211.

50. Id. at 212.

51. Id. at 213.

52. Id. at 106.

53. The Arbitration Law (1953).

54. Alternative Dispute Resolution Act of 2004 (2004).

55. DOJ Dept. Circ. No. 98 (2009).

56. A.M. No. 07-11-08-SC (2009).

57. See Korea Technologies, Co.,Ltd. v. Hon. Lerma,566 Phil. 1, 27 (2008) [Per J. Velasco, Jr.,Second Division].

58. CONST.,art. III, sec. 7.

59. 314 Phil. 150 (1995) [Per J. Mendoza, En Banc].

60. Id. at 167-171, citing Anno., Government Privilege Against Disclosure of Official Information,95 L. Ed. §§3-4 and 7, pp. 427-429, 434; United States v. Nixon,418 U.S. 683, 708-9, 41 L. Ed. 2d 1039, 1061-4 (1973);Freund, The Supreme Court 1973 Term — Foreword: On Presidential Privilege,88 HARV. L. REV. 13, 18-35 (1974); United States v. Nixon,418 U.S. 683, 41 L. Ed. 2d 1039 (1974);and Nixon v. Administrator of General Services,433 U.S. 425, 53 L. Ed. 2d 867 (1977).

61. Senate v. Ermita,522 Phil. 1, 37 (2006) [Per J. Carpio-Morales, En Banc], citing B. Schwartz, Executive Privilege and Congressional Investigatory Power,47 Cal. L. Rev. 3.

62. Id. at 645, citing M. Rozell, Executive Privilege and the Modern Presidents: In Nixon's Shadow,83 MINN. L. REV. 1069.

63. 572 Phil. 554 (2008) [Per J. Leonardo-de Castro, En Banc].

64. Id. at 645, citing In Re: Sealed Case No. 963124,June 17, 1997.

65. See Akbayan v. Aquino,580 Phil. 422, 482 (2008) [Per J. Carpio-Morales, En Banc].

66. C.J. Puno, Dissenting Opinion in Neri v. Senate Committee on the Accountability of Public Officers,572 Phil. 554, 812 (2008) [Per J. Leonardo-de Castro, En Banc], citing Kaiser Aluminum and Chemical Corp.,433 US 425 (1977) and Judicial Watch, Inc. v. Clinton,880 F. Supp. 1, 12 (D.D.C. 1995) (citation omitted),aff'd, 76 F.3d 1232 (D.C. Cir. 1996).

67. In Re: Production of Court Records and Documents,February 14, 2012 17 [Unsigned Resolution, En Banc], citing Electronic Frontier Foundation v. US Department of Justice,2011 WL 596637 and NLRB v. Sears, Roebuck & Co.,421 US 151.

68. Chavez v. Public Estates Authority, 433 Phil. 506, 531-535 (2002) [Per J. Carpio, En Banc], citing Chavez v. PCGG,360 Phil. 133, 166-167 (1998) [Per J. Panganiban, First Division]; Aquino-Sarmiento v. Morato,280 Phil. 560, 570 (1991) [Per J. Bidin, En Banc]; Almonte v. Vasquez,314 Phil. 150, 167 (1995) [Per J. Mendoza, En Banc]. See Peoples Movement for Press Freedom, et al. v. Hon. Raul Manglapus,G.R. No. 84642, April 13, 1988 [Unsigned Resolution, En Banc]. See also TAX CODE, sec. 270; Rep. Act No. 8800 (2000),sec. 14; Rep. Act No. 8504 (1998),sec. 3 (n);Rep. Act No. 8043 (1995),sec. 6 (j);and Rep. Act No. 7942 (1995),sec. 94 (f).

69. 580 Phil. 422 (2008) [Per J. Carpio-Morales, En Banc].

70. Id. at 481-482, citing Chavez v. Public Estates Authority, 433 Phil. 506, 531-533 (2002) [Per J. Carpio, En Banc]; Chavez v. PCGG,360 Phil. 133, 160-162 (1998) [Per J. Panganiban, First Division]; Aquino-Sarmiento v. Morato,280 Phil. 560, 568-569 (1991) [Per J. Bidin, En Banc]; Almonte v. Vasquez,314 Phil. 150, 167-171 (1995) [Per J. Mendoza, En Banc];and Peoples Movement for Press Freedom, et al. v. Hon. Raul Manglapus,G.R. No. 84642, April 13, 1988 [Unsigned Resolution, En Banc].

71. Chavez v. Public Estates Authority, 433 Phil. 506, 532 (2002) [Per J. Carpio, En Banc].

72. Id.

73. Id. at 532-534, citing Chavez v. PCGG,360 Phil. 133, 166-167 (1998) [Per J. Panganiban, First Division]; Legaspi v. Civil Service Commission,234 Phil. 521, 531-533 (1987) [Per J. Cortes, En Banc]; Almonte v. Vasquez,314 Phil. 150, 167-171 (1995) [Per J. Mendoza, En Banc];and Aquino-Sarmiento v. Morato,280 Phil. 560, 568-569 (1991) [Per J. Bidin, En Banc].

74. Rollo,p. 38.

75. Id. at 283.

76. Id.

77. Id. at 19.

78. Rollo,pp. 106-107.

79. C.J. Puno, Dissenting Opinion in Neri v. Senate Committee on the Accountability of Public Officers,572 Phil. 554, 811 (2008) [Per J. Leonardo-de Castro, En Banc], citing R. Iraola, Congressional Oversight, Executive Privilege, and Requests for Information Relating to Federal Criminal Investigations and Prosecutions,87 IOWA L. REV.,1559, 1577 (August, 2002).