DFA v. BCA

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, as well as the Resolution dated 2 September 2013, 4 of the Regional Trial Court of
3
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 led 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 nality 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 led 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 testi candum 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
CD Technologies Asia, Inc. © 2016 cdasiaonline.com
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
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
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
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
the delays in the implementation of the MRP/V
Project;
d. Documents, records, papers and
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;
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";
correspondence between DFA and COA regarding
DFA's attempted termination of the Amended
BOT Agreement; 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;
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;
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
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;
correspondence between DFA and the MRP/V
Advisory Board regarding BCA's request to allow
the investment of S.F. Pass International in
Philpass;
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
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 led 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 de nite proposition is reached
by the agency and since DFA already made a de nite 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 testi candum [and
subpoena] duces tecum be issued to the persons listed in paragraph 11 of the
Petition for them to appear and bring the documents speci ed 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 led 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) testi ed before the
arbitral tribunal pursuant to the subpoena.
In an Order dated 8 January 2014, the RTC denied the motion for reconsideration
led by DFA. The RTC ruled that the motion became moot with the appearance of the
witnesses during the arbitration hearings. Hence, DFA led 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 led 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 Held
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 testi candum and subpoena duces tecum.
20 The Special ADR Rules speci cally 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 speci ed 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 nd 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 con ict 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 Trans eld 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 led 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 rst 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 de nite 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 Authority 32 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 "of cial acts, transactions, or decisions" on the bids or proposals. However,
once the committee makes its of cial 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
con dential. 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 con dential. 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 of cial
information on on-going negotiations before a nal contract. The information,
however, must constitute de nite 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 "de nite proposition" is reached by an agency, the
privileged character of a document no longer exists. On the other hand, we hold that before
a "de nite proposition" is reached by an agency, there are no "of cial 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 Authority 34 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 Authority 35 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 "de nite
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 Of cials 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. Con dentiality of court sessions. — Court sessions are
executive in character, with only the Members of the Court present. Court
deliberations are con dential 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 con dentiality 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
sti ed 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 con dential. 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 sti ed 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 de nite 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 of cials 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 nally
made. The Supreme Court of Alaska held that "the question is not whether the decision has
been implemented, or whether suf cient 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. 43 First, 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 re ect 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 signi cance 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
of ce or person issuing the material. A document from a subordinate to a superior
of cial 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 sti e
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 re ect 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 nal 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
nal 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 "re ect the agency's group thinking in the process of working out its policy" and are
part of the deliberative process in arriving at the nal position. In Judicial Watch v. Clinton ,
49 the U.S. District Court for the District of Columbia held that handwritten notes re ecting
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 Of cials 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: rst, the privilege
protects candid discussions within an agency; second, it prevents public confusion from
premature disclosure of agency opinions before the agency establishes nal policy; and
third, it protects the integrity of an agency's decision; the public should not judge of cials
based on information they considered prior to issuing their nal 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 nally 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 Important
Under RA 9285, 54 orders of an arbitral tribunal are appealable to the courts. If an
of cial is compelled to testify before an arbitral tribunal and the order of an arbitral tribunal
is appealed to the courts, such of cial can be inhibited by fear of later being subject to
public criticism, preventing such of cial 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 of cial
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 of cers, employees,
agents or contractors to divulge to any person, other than any of its or their
respective of cers 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 nancial arrangements or affair[s] of the other
parties hereto . Documents marked "CONFIDENTIAL" or the like, providing that such
material shall be kept con dential, 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 nancial 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 re ecting 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 of cials 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 quali ed privilege, the burden falls upon the government agency asserting the
deliberative process privilege to prove that the information in question satis es 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 con dentiality. 61 "The determination of need must be made
exibly 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 speci city, 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 Certiorari 1 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 testi candum to compel the of cers 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 led 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
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 led 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 testi candum 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
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
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;
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";
between DFA and COA regarding DFA's attempted
termination of the Amended BOT Agreement; 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";
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
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;
between DFA and the MRP/V Advisory Board
regarding BCA's request to allow the investment of
S.F. Pass International in Philpass;
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
regarding the DFA's attempted termination of the
Amended BOT Agreement; and
f. Other related documents, records, papers and
correspondence. 2 2
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 de nite 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 testi candum 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 led a Motion to Quash
Subpoena Duces Tecum and Ad Testi candum , 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 testi ed 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 led 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 con dentiality 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
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 con ict 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
Bill of Rights
xxx xxx xxx
SECTION 7. The right of the people to information on matters of public concern shall
be recognized. Access to of cial records, and to documents, and papers pertaining
to of cial 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
Declaration of Principles and State Policies
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 con dentiality of his
conversations and correspondence, which it likened to "the claim of con dentiality
of judicial deliberations." Said the Court in United States v. Nixon:
The expectation of a President to the con dentiality of his
conversations and correspondence, like the claim of con dentiality 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 rst 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 con dentiality does not rest on the
need to protect military, diplomatic or other national security secrets but on a
general public interest in the con dentiality of his conversations, courts have
declined to nd 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 de ned 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 of cers to withhold information from Congress, the courts,
and ultimately the public." 62
Executive privilege has been further de ned in Neri v. Senate Committee on
Accountability of Public Of cers 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 re ect
presidential decision-making and deliberations and that the President believes
should remain con dential." 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 of cials. The rst 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 nal 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 identi ed 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 nal policy;
and (3) it protects the integrity of an agency's decision; the public should not judge
of cials based on information they considered prior to issuing their nal decisions.
For the privilege to be validly asserted, the material must be pre-decisional and
deliberative. 66
Information is pre-decisional if no nal 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 re ects 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 of cial acts, transactions, or decisions" on the bids or proposals. However,
once the committee makes its of cial recommendation, there arises a "de nite
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 of cers, as well as
other government representatives, to disclose suf cient 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 de nite 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 con dential. 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 of cial
information on on-going negotiations before a nal contract . The information,
however, must constitute de nite 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 de nite proposition. Akbayan v. Aquino , 69 however, quali ed that the privilege
may continue even after a de nite 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 testi candum on the basis that the deliberative process privilege does not apply since
the Department of Foreign Affairs already reached a de nite proposition when it entered
into the contract.
Chavez de nes de nite proposition as an "of cial recommendation" 71 or "of cial
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) of cial records; (2) documents and papers pertaining to
of cial acts, transactions and decisions; and (3) government research data used in
formulating policies. The rst category refers to any document that is part of the
public records in the custody of government agencies or of cials. The second
category refers to documents and papers recording, evidencing, establishing,
con rming, supporting, justifying or explaining of cial acts, transactions or
decisions of government agencies or of cials. 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
con dential. The right may also be subject to other limitations that Congress may
impose by law. 73
The Department of Foreign Affairs claims that the de nite 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 Certi cate of Acceptance of Phase I, 75 the Department of Foreign Affairs
of cially 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 of cial 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 de nite 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 de nite proposition if there
were of cial acts, transactions, and decisions that precipitated it. There is a lacuna, as in
this case, as to what may constitute de nite 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 con dential, 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 of cers, employees, agents or contractors
to divulge to any person, other than any of its respective of cers 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 nancial
arrangements or affair of the other parties hereto. Documents marked
"CONFIDENTIAL" or the like, providing that such material shall be kept con dential,
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 con dentiality, 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, nanciers, or legal or nancial 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
con dential, 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 of cers 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 of cer 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 shbowl, 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. Con dentiality of Arbitration Proceedings. — The arbitration proceedings,
including the records, evidence and the arbitral award, shall be considered
con dential 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 con dential 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.

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 Of cials 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 Of cials 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. Paci c Coast Shell sh 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. Of ce 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 testi candum 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.

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 le 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
<http://www.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.

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 Of cial 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
<http://sc.judiciary.gov.ph/jurisprudence/2012/february2012/notice.pdf> 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 Estate 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 Estate 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 Estate 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).

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SECOND DIVISION

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

DEPARTMENT OF FOREIGN AFFAIRS , petitioner, vs. BCA INTERNATIONAL

1. Secretary of a. Request for Proposal dated September 10,

The RTC Ruling

CD Technologies Asia, Inc. © 2016 cdasiaonline.com

WHEREFORE , we resolve to PARTIALLY GRANT the petition and REMAND this

1. Secretary of a. Request for Proposal dated September 10, 1999 for

xxx xxx xxx

CD Technologies Asia, Inc. © 2016 cdasiaonline.com

CD Technologies Asia, Inc. © 2016 cdasiaonline.com

11. Rollo, pp. 54-55.

21. Special ADR Rules, Rule 1.1 (g).

24. Special ADR Rules, Rules 19.36 and 19.37.

27. Section 14 of RA 876.

31. Rollo, pp. 54-55.

34. Supra note 10.

37. 580 Phil. 422 (2008).

42. 10 P.3d 572 (2002).

49. 880 F. Supp. I (D.D.C. 1995).

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

63. Supra note 10.

7. Id. at 193, Comment.

22. Id. at 2-5.

24. Id. at 26.

28. Rollo, p. 52.

34. Id. at 166-177.

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

39. Id. at 28.

CD Technologies Asia, Inc. © 2016 cdasiaonline.com

45. Id. at 32-40.

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

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

g. Assistance in Taking Evidence;

k. Confidentiality/Protective Orders; and

49. Rollo, pp. 198-211.

52. Id. at 106.

CD Technologies Asia, Inc. © 2016 cdasiaonline.com

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

58. CONST., art. III, sec. 7.

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

CD Technologies Asia, Inc. © 2016 cdasiaonline.com

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