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X. The Deliberative Process Privileged Information Rule

The deliberative process privilege allows government agencies to prevent disclosure of information that could undermine their decision-making processes. It aims to allow for candid internal discussions without public scrutiny influencing pending policy decisions. A document is considered deliberative if it reflects the consultative process leading to a decision. The key question is whether disclosure would discourage open discussion. The privilege is narrower than privileges covering presidential communications and expires once a final policy is adopted, unless national security or foreign relations are at issue. However, it may not apply to certain arbitration proceedings under Philippine law.

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59 views

X. The Deliberative Process Privileged Information Rule

The deliberative process privilege allows government agencies to prevent disclosure of information that could undermine their decision-making processes. It aims to allow for candid internal discussions without public scrutiny influencing pending policy decisions. A document is considered deliberative if it reflects the consultative process leading to a decision. The key question is whether disclosure would discourage open discussion. The privilege is narrower than privileges covering presidential communications and expires once a final policy is adopted, unless national security or foreign relations are at issue. However, it may not apply to certain arbitration proceedings under Philippine law.

Uploaded by

Michelle Joy Itable
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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X.

The Deliberative Process Privileged Information Rule


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

A material is "deliberative," if it reflects the give-and-take of the consultative process.


The key question in determining whether the material is deliberative in nature is
whether disclosure of the information would discourage candid discussion within the
agency. If the disclosure of the information would expose the government's
decision-making process in a way that discourages candid discussion among the
decision-makers (thereby undermining the courts' ability to perform their functions),
the information is deemed privileged. 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. The deliberative
process privilege may not always apply to arbitration proceedings under Republic Act
No. 9285.

This is illustrated in the following cases:


1. Department of Foreign Affairs v. BCA International Corporation (G.R.No. 210858, June 29, 2016)

Facts: In an Amended Build-Operate-Transfer (BOT) Agreement1 dated April 5, 2002 (Agreement),


petitioner DFA awarded the Machine Readable Passport and Visa Project (MRP/V Project) to respondent
BCA International Corporation. In the course of implementing the MRPN Project, conflict arose and
petitioner sought to terminate the Agreement.

Respondent opposed the termination and filed a Request for Arbitration on April 20, 2006. The Arbitral
Tribunal was constituted on June 29, 2009.

On October 5, 2013, respondent manifested that it shall file an Amended Statement of Claims so that its
claim may conform to the evidence they have presented. 4

The Arbitral Tribunal granted respondent's Motion to Admit Attached Amended Statement of Claims dated
April 30, 2015 on the premise that respondent would no longer present any additional evidence in-chiet
Petitioner was given a period of 20 days from receipt of the Order to file its Answer to the Amended
Statement of Claims and to manifest before the Tribunal if it will present additional evidence in support of
its Amended Answer in order for the Tribunal to act accordingly.

The Arbitral Tribunal, thereafter, issued Procedural Order No. 12 dated June 8, 2016, which resolved
respondent's Motion for Partial Reconsideration of Procedural Order No. 11, disallowing the presentation
of additional evidence-in-chief by respondent to prove the increase in the amount of its claim as a
limitation to the Tribunals' decision granting respondent's Motion to Amend its Statement of Claims.

As Procedural Order No. 12 denied petitioner's motion for reconsideration of Procedural Order No. 11,
petitioner filed this petition for certiorari under Rule 65 of the Rules of Court with application for issuance
of a temporary restraining order and/or writ of preliminary injunction, seeking to annul and set aside
Procedural Order No. 11 dated February 15, 2016 and Procedural Order No. 12 dated June 8, 2016.

Issue: WON a petition for review on certiorari is availing in a pending arbitration process.
Ruling:

RA No. 9285 declares the policy of the State to actively promote party autonomy in the resolution of
disputes or the freedom of the parties to make their own arrangements to resolve their disputes. 23Towards
this end, the State shall encourage and actively promote the use of Alternative Dispute Resolution as an
important means to achieve speedy and impartial justice and declog court docl 24

Court intervention is allowed under RA No. 9285 in the following instances: (1) when a party in the
arbitration proceedings requests for an interim measure of protection; 25 (2) judicial review of arbitral
awards26 by the Regional Trial Court (RTC); and (3) appeal from the RTC decisions on arbitral awards to
the Court of Appeals.2
.
The deliberative process privilege is a privilege that an officer of an executive department
may invoke to prevent public disclosure of any information that may compromise its
decision-making capability. Its purpose "rests most fundamentally on the belief that were
agencies forced to operate in a fishbowl, frank exchange of ideas and opinions would cease
and the quality of administrative decisions would consequently suffer."This is to prevent
subjecting an agency's decision-making process to public opinion before any definite policy
action has been made

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