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Department of Foreign Affairs v. BCA International Corporation, GR 210858, 29 June 2016
- 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 (MRPN Project) to respondent BCA International Corporation (BCA), a domestic corporation.
- During the implementation of the MRPN Project, DFA sought to terminate the Agreement. However, BCA opposed the termination and filed a Request for Arbitration, according to the provision in the Agreement.
- an ad hoc arbitral tribunal6 was constituted, 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 will proceed whether the witnesses attend or not.
- BCA filed before the RTC a Petition for Assistance in Taking Evidence8 pursuant to the Implementing Rules and Regulations (IRR) of "The Alternative Dispute Resolution Act of 2004," or Republic Act No. 9285 (RA 9285).
- DFA filed its comment, alleging that the presentation of the witnesses and documents was prohibited by law and protected by the deliberative process privilege.
Whether or not the witnesses presented before the ad hoc arbitral tribunal are prohibited from disclosing information on the basis of the deliberative process privilege
No. As a qualified privilege, the burden falls upon the government agency asserting the deliberative process privilege to prove that the information in question satisfies both requirements - predecisional and deliberative. "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." It may be overcome upon a showing that the discoverant's interests in disclosure of the materials outweigh the government's interests in their confidentiality. "The determination of need must be made flexibly on a case-by-case, ad hoc basis," and the "factors relevant to this balancing include: the relevance of the evidence, whether there is reason to believe the documents may shed light on government misconduct, whether the information sought is available from other sources and can be obtained without compromising the government's deliberative processes, and the importance of the material to the discoverant's case."