788 Phil. 704
CARPIO, J.:
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 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.
Witnesses Documents to be produced 1. Secretary of Foreign Affairs or his representative/s, specifically Undersecretary Franklin M. Ebdalin and Ambassador Belen F. Anota a. Request for Proposal dated September 10, 1999 for the MRP/V Project;b. Notice of Award dated September 29, 2000 awarding the MRP/V Project in favor of BCA and requiring BCA to incorporate a Project Company to implement the MRP/V Project;c. Department of Foreign Affairs Machine Readable Passport and Visa Project BuildOperate-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; andp. Other related documents, records, papers and correspondence. 2. Secretary of Finance or his representative/s, specifically former Secretary of Finance Juanita D. Amatong a. Documents, records, papers and correspondence between DFA and Department of Finance regarding the DFA's requirement for BCA to prove its financial capability to implement the MRP/V Project and its opinion 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; ande. Other related documents, records, papers and correspondence. 3. Chairman of the Commission on Audit or her representative/s, specifically Ms. Iluminada M. V. Fabroa (Director IV) a. Documents, records, papers and correspondence between DFA and COA regarding the COA's conduct of a sectoral performance audit on the MRP/V Project;b. Documents, records, papers and correspondence between DFA and COA regarding 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; ande. Other related documents, records, papers and correspondence. 4. Executive Director or any officer or representative of the Department of Trade and Industry Build-Operate-Transfer Center, specifically Messrs. Noel Eli B. Kintanar, Rafaelito H. Taruc and Luisito Ucab a. Documents, records, papers and correspondence between DFA and BOT Center regarding the delays in the implementation of the MRP/V Project, including DFA's delay in the issuance of the Certificate of Acceptance for Phase One of the MRP/V Project and in approving the Central Facility Site at the Star Mall complex;b. Documents, records, papers and correspondence between DFA and BOT Center 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"; ande. Other related documents, records, papers and correspondence. 5. Chairman of the DFA MRP/V Advisory Board or his representative/s, specifically DFA Undersecretary Franklin M. Ebdalin and MRP/V Project Manager, specifically Atty. Voltaire Mauricio a. Documents, records, papers and correspondence between DFA and the MRP/V Advisory Board regarding BCA['s] performance of its obligations for Phase One of the MRP/V Project, the MRP/V Project, the MRP/V Advisory Board's recommendation for the issuance of the Certificate of Acceptance of Phase One of the MRP/V Project and its preparation of the draft of the Certificate of Acceptance;b. Documents, records, papers and 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; andf. Other related documents, records, papers and correspondence.
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 9:00a.m. and 2:00p.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.
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.
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.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.
x x x x
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)
Court deliberations are traditionally recognized as privileged communication. Section 2, Rule 10 of the IRSC provides: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]
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 x x x 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)
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.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]
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)
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 20.02 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.
Section 20.03 The restrictions imposed in Section 20.02 herein shall not apply to the disclosure of any information:
x x x x
C. To a court arbitrator or administrative tribunal the course of proceedings before it to which the disclosing party is party; x x x[55] (Emphasis supplied)
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]