CA Veloso Habeas Data

Republic of the Philippines
Court of Appeals
Manila
FORMER SPECIAL EIGHTH DIVISION
VICENTE S.E. VELOSO, CA-G.R. SP No. 00005-WHD

Petitioner, Members:
Bruselas, Jr., Chairman

- versus - Legazpi, and
Roxas, JJ.:
PHILIPPINE DRUG
ENFORCEMENT AGENCY
(“PDEA”) DIRECTOR
GENERAL AARON N.
AQUINO, PHILIPPINE
NATIONAL POLICE (“PNP”)
CHIEF OSCAR M.
ALBAYALDE, ARMED FORCES
OF THE PHILIPPINES (“AFP”)
CHIEF BENJAMIN R.
MADRIGAL, JR., NATIONAL
INTELLIGENCE
COORDINATING AGENCY
(“NICA”) DIRECTOR
GENERAL ALEX PAUL I.
MONTEAGUDO, and
DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT
(“DILG”) SECRETARY
EDUARDO M. AÑO, Promulgated:
Respondents. O5 Oct 2020
__________________
x==============================================x
CA-G.R. SP No. 00005-WHD
Amended Decision
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AMENDED DECISION1
Bruselas, Jr.
Is a person's right to privacy invaded by a

published narco list that identifies the person?
The antecedents
On 14 March 2019, Mr. Vicente S.E. Veloso was named in

the government's drug-watch list or “narco list” published via a
press release. On 25 April 2019, he filed a Petition for a Writ of Habeas
Data with the Supreme Court against the respondents. On 17 June
2019, or after the May 2019 midterm elections, with the petitioner
re-elected Congressman for the 3rd district of Leyte, the Supreme
Court issued the writ and remanded the petition to the Court of
Appeals (the Court) for determination of its merit. On 01 July
2019, the petition was raffled to Associate Justice Ricardo R.
Rosario, who inhibited on 16 July 2019. On 19 July 2019, the
petition was re-raffled to the herein ponente. On 29 July 2019, the
requisite summary hearing was conducted with the parties
thereafter given ample time to simultaneously submit their
memoranda on legal and factual matters.
In our decision of 05 November 2019,2 we considered the

similarity between the text used in Section 22 of the Rule on the
Writ of Amparo and those employed in Section 22 of the Rule on
the Writ of Habeas Data vis-a-vis the pronouncements in Tapuz v.
Del Rosario3 and Reyes v. Gonzales.4 On the basis of our analysis
and understanding of the factual and legal milieu, we then held
that recourse to the courts through the writ of habeas data should be
precluded when an administrative complaint against a public
officer already pends with the Ombudsman. We also held that the
Ombudsman has the jurisdiction to act on the complaint against
the petitioner, except that of disciplinary authority. The syllogism
behind these twin conclusions are detailed in our previous
1 Previously, the Court remanded to the Ombudsman petitioner's writ of habeas data application for
consolidation with a complaint thereat commenced against him; petitioner moved to reconsider.
2 Rollo, Vol. III, pp.1412-1437; a copy of which is herewith appended as Annex “A.”
3 G.R. No. 182484, June 17, 2008.
4 G.R. No. 182161, December 3, 2009.
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decision. Instead of dismissing the petition, however, we
remanded the case to the Ombudsman for the resolution of the
prayed reliefs, chief of which is a Motion for the Production and
Inspection of Documents.
In his motion for reconsideration, the petitioner posits that

the Court erred in ruling that the Ombudsman has jurisdiction to
act on the administrative complaint filed against him and that the
Rules on the Writ of Habeas Data apply to a priorly filed
administrative case with the Ombudsman. The petitioner argues
that the Court should have resolved his petition instead of
remanding it to the Ombudsman.5 On the other hand, the
respondents, in their comment, similarly argue against the Court's
order that remanded the writ petition to the Ombudsman. They
insist that the Court should resolve and render judgment on the
merits of the petition by resorting to alternative dispute
resolution.6
We partly reconsider.
While we maintain the opinion that the Rules on the Writ of

Habeas Data apply when an administrative case pends with the
Ombudsman, we, however, reconsider our order that remanded
the petition. As moved by both parties, and considering the great
importance of the case, the significance of the issues raised, the
need for certainty and celerity in disposing of the matters raised
by the parties, and to fully address the controversies surrounding
the petition, the Court will proceed to resolve the petition on its
substantial merit.
Right to privacy and

the writ of habeas data
Though not expressly stated in our Constitution, the right to

privacy is a cherished fundamental right. It is inherent in the
declared right to life, liberty, and security. In our jurisdiction, we
recognize three strands of the right to privacy: decisional privacy,
5 Rollo, Vol. III, pp. 1369-1409.

6 Id., at 1465-1474.
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locational or situational privacy, and informational privacy. 7
Decisional privacy encompasses an individual’s right to
independence in making important decisions, 8 such as one’s
choice of whom to marry9 or whether to use contraceptives or
not.10 Locational privacy, on the other hand, is concerned with the
privacy that is felt in a physical space, such as that which may be
violated by trespass and unwarranted or unreasonable search and
seizure.11
The writ of habeas data is intrinsically related to the third

strand of privacy rights. In Vivares v. St. Theresa’s College,12
informational privacy was defined as the right of individuals to
control information about themselves. It involves the right to
determine what and which information about oneself, how much
of it is to be processed, acquired, disclosed, or used. The right to
privacy emanates from the very heart of a person's individuality,
an exclusive and personal sphere upon which the state has no
right to intrude absent any compelling interest. 13 In Disini v.
Secretary of Justice,14 informational privacy was expounded in this
wise:
“xxx informational privacy refers to the interest in avoiding

disclosure of personal matters. xxx
Informational privacy has two aspects: the right not to have

private information disclosed, and the right to live freely without
surveillance and intrusion. In determining whether or not a matter
is entitled to the right to privacy, this Court has laid down a two-
fold test. The first is a subjective test, where one claiming the right
must have an actual or legitimate expectation of privacy over a
certain matter. The second is an objective test, where his or her
expectation of privacy must be one society is prepared to accept as
objectively reasonable.”
7 Vivares v. St. Theresa’s College, G.R. No. 202666, September 29, 2014.
8 Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011, separate opinion of J. Bersamin.
9 Loving v. Virginia, 388 U.S. 1 (1967).
10 Griswold v. Connecticut, 381 U.S. 479 (1965).
11 Chief Justice Reynato S. Puno, “The Common Right to Privacy,” delivered before the Forum on
The Writ of Habeas Data and Human Rights, sponsored by the National Union of Peoples’
Lawyers on March 12, 2008 at the Innotech Seminar Hall, Commonwealth Ave., Quezon City.
12 Supra, note 7.
13 Puno, supra, note 11.
14 G.R. No. 203335, February 11, 2014.
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The right to informational privacy is certainly not without
limitations or exceptions. In his separate opinion in Pollo v.
Constantino-David,15 then Associate Justice Bersamin examined
the right as used by circuit courts in the Unites States and found
that:
“All US Circuit Courts recognizing informational privacy

have held that this right is not absolute and, therefore, they have
balanced individuals’ informational privacy interests against the
State’s interest in acquiring or disclosing the information. The
majority of the US Circuit Courts have adopted some form of
scrutiny that has required the Government to show a "substantial"
interest for invading individuals’ right to confidentiality in their
personal information, and then to balance the State’s substantial
interest in the disclosure as against the individual’s interest in
confidentiality. This balancing test was developed in United States
v. Westinghouse by using the following factors, to wit: (a) the type
of record requested; (b) the information it did or might contain; (c)
the potential for harm in any subsequent nonconsensual
disclosure; (d) the injury from disclosure to the relationship in
which the record was generated; (e) the adequacy of safeguards to
prevent unauthorized disclosure; (f) the degree of need for access;
and (g) the presence of an express statutory mandate, articulated
public policy, or other recognizable public interest militating
toward access.”
To address the felt need for judicial remedies that would

allow the summary hearing of unlawful use of data or
information and to redress violations of the right to privacy,16 the
writ of habeas data was introduced into our jurisdiction. Section 1 of
the Rules on the Writ of Habeas Data provides:
“SECTION 1. Habeas Data. - The writ of habeas data is a

remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or
omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing
of data or information regarding the person, family, home and
correspondence of the aggrieved party.”
The writ of habeas data can be traced to developments in data

15 Supra, note 8.
16 Puno, supra, note 11.
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protection and informational self-determination in Europe in the
1980’s. The remedy, however, was mostly utilized and widely
spread by Latin American countries in the late 1980’s and 1990’s
after emerging from repressive and fascist regimes; incorporating
the writ into their new constitutions. Roughly translated to “you
have the data,” the writ of habeas data was used by families of
desaparecidos and victims of state-sanctioned human rights abuses
to obtain information from the government and exact
accountability. 17 Similarly, the writ of habeas data was crafted in
the Philippines as a response, given the perceived lack of effective
and available remedies, to the then extraordinary rise in the
number of killings and enforced disappearances.18
After the Rules on the Writ of Habeas Data were

promulgated, our laws on informational and data privacy have
evolved to address the growing concerns over the collection and
processing of personal information and data by state agents and
private entities. In 2012, Republic Act No. 10173 or the Data Privacy
Act was enacted to recognize “the fundamental human right of
privacy of communication while ensuring free flow of
information to promote innovation and growth.” 19 R.A. No. 10173
is attuned to the 1981 European Convention for the Protection of
Individuals with regard to Automatic Processing of Personal Data .20 In
2016, President Rodrigo Duterte issued Executive Order No. 02
which operationalized within the executive branch the people’s
constitutional right to information, providing guidelines and
policies on full public disclosure and transparency in public service.
Burden of proof and evidentiary

structure in habeas data petitions
In Gamboa v. Chan,21 the writ of habeas data was defined as an

independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information
17 Id., citing Andres Guadamuz, “Habeas Data and the European Data Protection Directive,” in The
Journal of Information, Law and Technology (JILT) (2001).
18 Manila Electric Company v. Lim, G.R. No. 184769, October 5, 2010, citing Tapuz v. Del Rosario,
at note 3.
19 R.A. No. 10173, Section 2.
20 Accessed here: https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/108.
21 G.R. No. 193636, July 24, 2012.
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of an individual, and to provide a forum to enforce one’s right to
the truth and to informational privacy. In Bautista v. Dannug-
Salucon,22 the Supreme Court further explained:
“The writ of habeas data is a remedy available to any person

whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information regarding
the person, family, home and correspondence of the aggrieved
party. It is an independent and summary remedy designed to
protect the image, privacy, honor, information, and freedom of
information of an individual, and to provide a forum to enforce
one's right to the truth and to informational privacy. It seeks to
protect a person's right to control information regarding oneself,
particularly in instances in which such information is being
collected through unlawful means in order to achieve unlawful
ends.”
The writ of habeas data is a fairly novel concept in our

jurisdiction and the case law on the matter is still developing. A
review of the said case law reveals the emerging evidentiary
burden and pattern that are required to be met when dealing with
habeas data proceedings.
An applicant in a habeas data petition must establish, by

substantial evidence, the existence of a person’s right to
informational privacy and show an actual or threatened violation
of the right to privacy in life, liberty, or security. For instance, in
Vivares, where it was found that the applicant had no reasonable
expectation of privacy with regard to the subject data of the
petition, the Supreme Court refused to issue the writ of habeas
data.23 The proof required by the Rules, however, need not be
direct evidence. Circumstantial evidence, indicia, and
presumptions may be considered by the court, so long as they
lead to conclusions consistent with the admissible evidence
adduced.24 For instance, in Bautista, the Supreme Court held that
there was sufficient proof to establish a right under a writ of
22 G.R. No. 221862, January 23, 2018.
23 Supra, note 7.
24 In re: The Petition for the Writ of Amparo and the Writ of Habeas Data in favor of Francis Saez,
G.R. No. 183533, September 25, 2012
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habeas data because the applicant therein was able to establish that
the Philippine National Police (PNP) had a standing order to
conduct a background investigation of her in order to confirm if
she was a "Red Lawyer” and that she was put under actual
surveillance by state authorities to establish a pattern of her
movements and activities.25 Once the allegations in the petition,
e.g., the applicant’s informational privacy right and the damage
thereto as a result of the respondent’s actions, are proven through
substantial evidence, then the court may grant the reliefs sought
by the applicant under the writ.26
But, as discussed above, the right to informational privacy is

not without limit; consequently, the remedy of habeas data is not
absolute. Under Section 10 of the Rules, a respondent may invoke
lawful defenses, such as national security, state secrets, privileged
communication, or confidentiality of the source of information, to
justify interference with the applicant’s right to informational
privacy. In such instances, even though the applicant's
information is processed or used by the respondent, the
interference will be deemed as pursuant to a lawful mandate and
legitimate state interest; thus, the reliefs prayed for under a writ
of habeas data may not be issued.
In Gamboa,27 the applicant alleged that the PNP included

her in a report which enumerated individuals maintaining private
army groups. Claiming that her inclusion was malicious or
reckless since it was based on the unverified information that the
PNP gathered, she asked the court to issue a writ of habeas data for
the purpose of, among others, destroying the unverified reports
from the PNP database and withdrawing information forwarded
to higher PNP officials. In denying her petition, the Supreme
Court cited the decision of the European Court of Human Rights
(ECHR) in Leander v. Sweden,28 viz:
“Leander illustrates how the right to informational privacy,

as a specific component of the right to privacy, may yield to an
25 Supra, note 22.
26 In the Matter of the Petition for the Writ of Amparo and Habeas Data in favor of Noriel H.
Rodriguez, G.R. No. 191805, November 15, 2011.
27 Supra, note 21.
28 Application No. 9248/81, A/116, 26 March 1987, 9 EHRR 433.
Accessed here: http://hudoc.echr.coe.int/eng?i=001-57519.
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overriding legitimate state interest. In similar fashion, the
determination of whether the privilege of the writ of habeas data,
being an extraordinary remedy, may be granted in this case,
entails a delicate balancing of the alleged intrusion upon the
private life of Gamboa and the relevant state interest involved.”
In Leander, the applicant was refused employment at a

museum located near a naval base which was a restricted military
security zone, on the basis of information contained and
maintained in a secret police register that had not been disclosed
to him. The applicant sought to be provided with the information
contained in said register. The ECHR denied his application, and
held that interference with one’s privacy rights may be deemed
necessary as long as the interference has a legitimate aim, like
national security, and the means used is proportionate to the
legitimate aim pursued. Applying Leander to Gamboa, the
Supreme Court held that although the applicant was able to
establish that the PNP had her data as used in their report, the
collection and processing of information had a legitimate state
aim, that is, the investigation of the existence of private armed
groups, with the ultimate objective of dismantling them
permanently. Moreover, the intelligence-gathering and
investigation conducted by the PNP underwent a validation
system and safeguards were put in place to make sure that the
pieces of information that were collected, maintained their
integrity and accuracy. More importantly, the information
gathered pertained to criminal charges filed in court against
Gamboa.
The State’s assertion of a lawful defense, such as national

security and state secrets, however, cannot be taken at face value.
Once the applicant establishes his claim for a writ of habeas data, it
becomes incumbent upon the State to substantially establish the
veracity and legitimacy of such purpose. Stated otherwise, the
courts are expected to inquire into the defense’s validity and the
State is required to prove its allegation by the appropriate
quantum of evidence. Through the power of judicial review,
courts are vested with the authority to strike a balance between
the alleged intrusion into the informational privacy of the
applicant and the relevant state interest asserted by the
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government and to determine whether or not the latter justifies
the former. When pitted against one’s established privacy interest,
the failure of the government to clearly establish a legitimate
purpose and to espouse a proportionate mechanism to achieve
said goal will necessarily give way to the primacy of the right to
informational privacy and the grant of the writ of habeas data.
Thus, in the Philippines, in applications for a writ of habeas

data, the applicant initially establishes his or her right within the
context of the writ and, if so established, the burden of the
evidence to prove that there exists a lawful defense to warrant
denial of the writ is shifted to the respondent. If a lawful defense
exists, then the reliefs prayed for shall not be granted.
The experience in Latin America
This evidentiary structure is not different from and is, in fact,

consistent with how countries in the Latin Americas approach
applications for writs of habeas data.
The Inter-American Commission on Human Rights

(IACHR) acknowledges the right of a person to know what
information exists about him or her, by means of a prompt,
simple, and effective remedy. A proceeding for habeas data is built
upon three premises: 1) the right to not have one’s privacy
disturbed; 2) the right to access one’s personal information in
public or private databases, and to modify, remove, or correct
information if it is sensitive, false, biased, or discriminatory; and
3) the right to use the remedy of habeas data as an oversight
mechanism.29 Habeas data, therefore, has been characterized as the
most important instrument to curb the disclosure of sensitive or
erroneous information that can affect one’s reputation or privacy
rights.30 If information contained in State records concerns the
private, personal, or confidential data of an individual, and those
data are not of public relevance, they can neither be captured and
29 IACHR, “Report on the Situation of Human Rights Defenders in the Americas,”
OEA/Ser.L/V/II.124, Doc. 5, rev. 1, March 7, 2006, para. 89.
Accessed here: http://www.cidh.org/countryrep/Defenders/defenderstoc.htm.
30 Catalina Botero Marino, “Freedom of Expression in the Americas: persistent problems and
emerging challenges.” Law and Society in Latin America: A New Map, edited by Cesar Rodriguez
Garavito, Routledge, 2014, para. 203.
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filed away nor disclosed, as they are protected by the right to
privacy. Unless expressly classified, the individual owner of that
data has the fundamental right to access it. 31 Under the principle
of maximum disclosure, disclosure is the general rule and is
subject only to few exceptions, which also must be based on
current law.32
Similarly, the writ of habeas data under the Latin American

regimes is not without exceptions and a person’s right to access
personal information may be restricted. Any restriction, however,
must meet the requirement of strict legality, legitimate aim, and
necessity, thus:
“xxx restrictions must be explicitly defined in the law and

must be necessary to ensure: a) respect for the rights or
reputations of others, or b) the protection of national security,
public order, or public health or morals. Derived from this
principle, the exceptions must be established by law, and these
must have been carefully written and widely disseminated, and
approved through the formal mechanisms set out in the law. xxx
limitations on the rights xxx must “meet certain requirements of
form, which depend upon the manner in which they are
expressed ... and certain substantive conditions, which depend
upon the legitimacy of the ends that such restrictions are designed
to accomplish.”33
When there is a conflict or dispute over access to personal

information, the burden of proof lies with the party that
administers or publishes the information, and not with the
owner.34 In such instance, the courts are authorized to examine
the case and determine whether or not the exception interposed
31 IACHR, “National Jurisprudence on Freedom of Expression and Access to Information,”
OEA/Ser.L/V/II.147 CIDH/RELE/INF.10/13, March 5, 2013, para. 228, citing Judgment T-1037
of 2008, Consideracion 26, (October 23, 2008) of the Constitutional Court of the Republic of
Colombia.
Accessed here: http://www.oas.org/en/iachr/expression/docs/publications/2013%2005%2020%20
NATIONAL%20JURISPRUDENCE%20ON%20FREEDOM%20OF%20EXPRESSION.pdf
32 Id., para. 187, citing Habeas data No. 91-DF, Case file 2003/0235568-0 (March 14, 2007), of the
Superior Court of Justice of the Federative Republic of Brazil.
33 Supra, note 29, para. 91.
34 IACHR, “Annual Report of the Inter-American Commission on Human Rights – Report of the
Office of the Special Rapporteur for Freedom of Expression,” Vol. II, OEA/Ser.L/V/II.134, Doc. 5,
February 25, 2009, para. 167, citing Case of Claude Reyes et al. v. Chile, Judgment of September
19, 2006, Series C No. 151, para. 137.
Accessed here: http://cidh.oas.org/annualrep/2008eng/Annual%20Report%202008-%20RELE
%20-%20version%20final.pdf.
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by the State is indeed valid. 35 The Supreme Court of Argentina,
for instance, holds the view that the remedy of habeas data could
secure personal data in the possession of law enforcement
agencies, even if the disclosures might affect security, national
defense, foreign relations, or a criminal investigation; that if
applicable, these defenses must be raised by the appropriate
government agency and be assessed by the court on a case-by-
case basis.36
The experience in Europe
The development of the right to access personal information

in Europe post-Leander also reflects the increasing attention to the
right to informational privacy in the modern information age.
While Leander considered the doctrine of margin of

appreciation in relation to one’s right to privacy, the ECHR
declared in the very same case that the mere storing of data
relating to the private life of an individual, especially when he is
not given an opportunity to refute the information, amounts to an
interference with his right to privacy. Thus the State needed to
justify its interference, which was successfully done by the
respondent State in Leander. It is important to note and to serve,
as well, as a cautionary tale of unfettered judicial deference to
State discretion, that the Swedish government subsequently
acknowledged that there was actually no matter of national
security involved in Leander. As compensation for his unjust
dismissal, the government awarded him 400,000 Swedish krona.37
35 Supra, note 32.

36 Ganora, Mario Fernando y otros s/ Habeas Corpus, Sentencia16 de Septiembre de 1999, Nro.
Interno: G0529.33. (“13. xxx Desde esa perspectiva, ha de concluirse que, en principio, la
obtención de información sobre datos personales obrantes en los organismos y fuerzas de
seguridad halla adecuación legal en la acción de habeas data; ello sin perjuicio de que el
suministro de esa información pueda, eventualmente, afectar la seguridad, la defensa nacional, las
relaciones exteriores o una investigación criminal, cuestión que en cada caso deberá ser invocada
por el titular de la respectiva institución.”)
Accessed here: http://www.saij.gob.ar/corte-suprema-justicia-nacion-federal-ciudad-autonoma-
buenos-aires-ganora-mario-fernando-otros-habeas-corpus-fa99000012-1999-09-16/123456789-
210-0009-9ots-eupmocsollaf.
37 Elena Sychenko, “Individual Labour Rights as Human Rights: The Contributions of the European
Court of Human Rights to Worker’s Rights Protection,” edited by Roger Blanpain and Frank
Hendrickx, Kluwer Law International B.V., 2017.
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Thus, the assessment of right to privacy cases before the
ECHR is also subjected to a two-prong analysis: first, the
applicant must show that there is an interference with his right to
privacy, and second, if such interference exists, the respondent
State must prove that the interference is justified. With regard to
the first prong, it must be shown that the personal information
retained by the authorities involves any of the private life aspects
of the applicant, the specific context in which the information at
issue has been recorded and retained, the nature of the records,
the way in which these records are used and processed, and the
results that may be obtained.38 With regard to the second prong,
the State must prove that the interference: 1) has a legitimate aim;
2) is in accord with law; and 3) is necessary in a democratic
society in the interest of national security, where the notion of
necessity implies that the interference corresponds to a pressing
social need and, in particular, that it is proportionate to the
legitimate aim pursued.39 In S and Marper v. United Kingdom,40 the
ECHR explained:
“103. The protection of personal data is of fundamental

importance to a person's enjoyment of his or her right to respect
for private and family life, as guaranteed by Article 8 of the
Convention. The domestic law must afford appropriate
safeguards to prevent any such use of personal data as may be
inconsistent with the guarantees of this Article. The need for
such safeguards is all the greater where the protection of
personal data undergoing automatic processing is concerned,
not least when such data are used for police purposes. The
domestic law should notably ensure that such data are relevant
and not excessive in relation to the purposes for which they are
stored; and preserved in a form which permits identification of
the data subjects for no longer than is required for the purpose
for which those data are stored. The domestic law must also
afford adequate guarantees that retained personal data was
efficiently protected from misuse and abuse. xxx (Emphasis
added, citations omitted.)
In S and Marper, the ECHR held that storing and

maintaining DNA profile, fingerprint, and cellular samples of
38 S and Marper v. United Kingdom, [2008] ECHR 1581, Application Nos. 30562/04 and 30566/04.
39 Supra, note 28.
40 Supra, note 38.
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individuals arrested or suspected of certain criminal offenses, but
not convicted or had the charges against them dropped, constitute
a violation of the right to privacy. Evaluating the first prong, it
held that DNA profile, fingerprint, and cellular samples are
personal data and their retention by the government authorities
amounted to an interference with one’s right to respect for their
private lives.
The ECHR’s analysis of the second prong is enlightening and

elaborate in its discussion of the necessary proof required to
justify State interference. The ECHR did not doubt that the
retention of the said data had a legitimate aim, that is, the
detection and prevention of crimes, thus:
“xxx While the original taking of this information pursues

the aim of linking a particular person to the particular crime of
which he or she is suspected, its retention pursues the broader
purpose of assisting in the identification of future offenders.”
The ECHR also explained that for interference to be in

accordance with law, the law must be formulated with sufficient
precision to enable the individual to regulate his conduct. The law
must afford adequate legal protection against arbitrariness and
accordingly indicate with sufficient clarity the scope of discretion
conferred on the competent authorities and the manner of its
exercise. In the case:
“98. As regards the conditions attached to and arrangements

for the storing and use of this personal information, section 64 is
far less precise. It provides that retained samples and fingerprints
must not be used by any person except for purposes related to the
prevention or detection of crime, the investigation of an offence or
the conduct of a prosecution.
99. The Court agrees with the applicants that at least the first
of these purposes is worded in rather general terms and may give
rise to extensive interpretation. It reiterates that it is as essential, in
this context, as in telephone tapping, secret surveillance and
covert intelligence-gathering, to have clear, detailed rules
governing the scope and application of measures, as well as
minimum safeguards concerning, inter alia, duration, storage,
usage, access of third parties, procedures for preserving the
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integrity and confidentiality of data and procedures for its
destruction, thus providing sufficient guarantees against the risk
of abuse and arbitrariness. xxx” (Citations omitted.)
Finally, like in Leander, the ECHR recognized the State’s

margin of appreciation in assessing whether an interference is
necessary in a democratic society, that is, if it answers a pressing
social need and if the reasons adduced by the national authorities
to justify its legitimate aim are relevant and sufficient. It clarified,
however, that the margin will tend to be narrower and restricted
where the right at stake is crucial to the individual's effective
enjoyment of intimate or key rights, such as where a particularly
important facet of an individual's existence or identity is at stake.
In finding that the State’s retention of the subject data constituted
a violation of the applicants’ right to privacy, the ECHR held:
“104. The interests of the data subjects and the community as

a whole in protecting the personal data, including fingerprint and
DNA information, may be outweighed by the legitimate interest
in the prevention of crime. However, the intrinsically private
character of this information calls for the Court to exercise careful
scrutiny of any State measure authorising its retention and use by
the authorities without the consent of the person concerned.
xxx
119. In this respect, the Court is struck by the blanket and

indiscriminate nature of the power of retention in England and
Wales. The material may be retained irrespective of the nature or
gravity of the offence with which the individual was originally
suspected or of the age of the suspected offender; fingerprints and
samples may be taken – and retained – from a person of any age,
arrested in connection with a recordable offence, which includes
minor or non-imprisonable offences. The retention is not time-
limited; the material is retained indefinitely whatever the nature
or seriousness of the offence of which the person was suspected.
Moreover, there exist only limited possibilities for an acquitted
individual to have the data removed from the nationwide
database or the materials destroyed; in particular, there is no
provision for independent review of the justification for the
retention according to defined criteria, including such factors as
the seriousness of the offence, previous arrests, the strength of the
suspicion against the person and any other special circumstances.
Amended Decision
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xxx
122. Of particular concern in the present context is the risk of

stigmatisation, stemming from the fact that persons in the position
of the applicants, who have not been convicted of any offence and
are entitled to the presumption of innocence, are treated in the
same way as convicted persons. In this respect, the Court must
bear in mind that the right of every person under the Convention
to be presumed innocent includes the general rule that no
suspicion regarding an accused's innocence may be voiced after
his acquittal. It is true that the retention of the applicants' private
data cannot be equated with the voicing of suspicions.
Nonetheless, their perception that they are not being treated as
innocent is heightened by the fact that their data are retained
indefinitely in the same way as the data of convicted persons,
while the data of those who have never been suspected of an
offence are required to be destroyed.
125. In conclusion, the Court finds that the blanket and

indiscriminate nature of the powers of retention of the
fingerprints, cellular samples and DNA profiles of persons
suspected but not convicted of offences, as applied in the case of
the present applicants, fails to strike a fair balance between the
competing public and private interests and that the respondent
State has overstepped any acceptable margin of appreciation in
this regard. Accordingly, the retention at issue constitutes a
disproportionate interference with the applicants' right to respect
for private life and cannot be regarded as necessary in a
democratic society. This conclusion obviates the need for the
Court to consider the applicants' criticism regarding the adequacy
of certain particular safeguards, such as too broad an access to the
personal data concerned and insufficient protection against the
misuse or abuse of such data.”
Some recent European cases

for and against privacy rights
Recent cases of similar import include: 1) the 2014 case of

Brunet v. France,41 where the ECHR found a violation of right to
privacy when the applicant was added to the police database
41 Application No. 21010/10, 18 September 2014. The official judgment of the ECHR is available
only in French. The case, however, was summarized in English in the Press Release issued by the
Registrar of the Court.
Accessed here: http://hudoc.echr.coe.int/eng?i=001-146519
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called STIC, used for processing recorded offenses and contained
information from investigation reports, even after the
discontinuance of criminal proceedings against him; 2) the 2011
case of Dimitrov-Kazakov v. Bulgaria,42 where the applicant was
questioned by the police authorities about a rape incident and,
thereafter, his name was entered in the police registers, with
reference to a rape, as an “offender,” even though he had never
been indicted for the offense. He was also subjected by the police
to a number of checks related to rape complaints or
disappearances of young girls. The ECHR held that the
applicant’s right to privacy had been violated, finding that the
inclusion in the police file was not in accordance with the law;
and 3) the 2019 case of Catt v. United Kingdom,43 where the
applicant, an activist, who despite never being convicted of any
criminal offense, had his name and other personal data included
in a police database known as the “Extremism Database.” The
ECHR found an invalid interference with the applicant’s privacy
rights. It considered the fact that the applicant had no history or
prospect of committing violent acts, as he had only participated in
peaceful protests in the past, and the lack of adequate safeguards
in the State’s retention of his personal information, e.g., the
authorities’ fluid definition of extremism and the potential that
personal data could be retained indefinitely.
In contrast, some other recent cases where the ECHR found

no violation of privacy rights include: 1) the 2009 case of B.B. v.
France,44 where the inclusion in the automated national judicial
database of sex offenders of the applicants, who had been
sentenced to terms of imprisonment for rape of 15 year old
minors, was found to be not violative of their privacy rights. The
ECHR agreed with the prevention-related objectives of the
database and noted that the applicants can request for deletion
42 Application No. 11379/03, 10 February 2011. The official judgment of the ECHR is available only
in French. The case, however, was summarized in English in the Press Release issued by the
43 Application No. 43514/15, January 24, 2019.
44 Application No. 5335/06, 17 December 2009.The official judgment of the ECHR is available only
in French. The case, however, was summarized in English in the Press Release issued by the
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after a specific period of time and that the processing of such data
was subject to a duty of confidentiality and was restricted to
precisely determined circumstances; 2) the 2013 case of Peruzzo
and Martens v. Germany,45 where the retention of data from
persons who have been convicted of serious criminal offenses for
the purpose of facilitating the investigation of possible future
crimes, was found to be legitimate and justified and struck a fair
balance between the competing public and private interests and
fell within the respondent State’s acceptable margin of
appreciation; and 3) the 2016 case of Figueiredo Teixeira v.
Andorra,46 where data from telephone calls made by the applicant,
who was suspected of drug trafficking, was stored and
communicated by the authorities to the judicial authority, the
ECHR held that the domestic law provided for a procedure for
such investigation, which was complied with by the authorities.
Safeguards against arbitrariness were also present. The State had
respected proportionality between the effects of the use of special
investigation techniques and the objective that has been
identified, and that they had used a non-intrusive method to
enable the offense to be detected, prevented, or prosecuted with
adequate effectiveness.
The right to informational privacy has, therefore, taken

eminence in present-day discussions of human rights and the
pursuit of democracy. The current legal systems of the
Philippines and the pertinent European and Latin American
nations, whence our concept of habeas data was based, reflect the
primacy of the right to privacy, on one hand, and the recognition
of legitimate state interest, on the other. Balancing these two
forces and evaluating their concomitant merit require a delicate
approach by the courts, which are called upon to settle the
controversy via a habeas data proceeding. The evidentiary approach
reflected in the above discussion is essential to aid the courts in
their duty.
45 Application Nos. 7841/08 and 57900/12, 4 June 2013.

46 Application No. 72384/14, 8 November 2016. The official judgment of the ECHR is available
only in French. The case, however, was summarized in English in the Press Release issued by the
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The interference with petitioner’s
informational privacy rights;
violation of his privacy rights in
life, liberty, and security
To recapitulate, an applicant who invokes the privilege of

the writ of habeas data must establish, by substantial evidence: 1)
the existence his right to informational privacy; and 2) show an
actual or threatened violation of his right to privacy in life, liberty,
or security.47 Substantial evidence is that amount of relevant
evidence which a reasonable mind might accept as adequate to
justify a conclusion,48 even if other minds, equally reasonable,
might conceivably opine otherwise.49 It consists of evidence
affording a substantial basis of fact from which the fact in issue
can be reasonably inferred.50
With respect to the first element, the Court finds that the
petitioner has established his right to informational privacy, that
is, the data which gave rise to the narco list were processed by the
respondents. Contrary to the respondents’ assertion, the
petitioner’s inclusion in the 14 March 2019 narco list was not a
result of the mere filing of an administrative case against the
petitioner with the Ombudsman but came from a series of State
interference in his personal life. In both the Consolidated
Complaint-Affidavit51 and the Supplement52 that were filed with
the Ombudsman, the DILG definitively stated that as early as
August 2016, the government already had a list of politicians
purportedly involved in the illegal drug trade. Thereafter, PNP,
PDEA, AFP, and NICA “conducted and performed further
validation on the personalities included in the list xxx in
accordance with circumspect methodology taking into account
effective result and respect for basic human rights.” 53 From this
information-gathering activities, the respondents were
supposedly able to verify and validate the initial information that
47 See Vivares, at note 7.
48 Rule 133, Section 5, Rules of Court.
49 Hacienda Leddy v. Villegas, G.R. No. 179654, September 22, 2014.
50 Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292 (1939).
51 Rollo, Vol. I, at 96-122.
52 Id., at 126-134.
53 Id., at 128, para. 5-6.
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they received, which included those of the petitioner's. More
importantly, the respondents never specifically denied obtaining
and using data or information pertaining to the petitioner. They
admitted in their memorandum of legal and factual matters that
they “conducted and performed validation on government
officials,”54 which included the petitioner. PDEA Deputy Director
General for Operations Gregorio Pimentel admitted to the
conduct of “series of validations and intelligence workshops” 55 in
relation to those named in the 2016 list. Interestingly, respondent
Albayalde in his Affidavit, claimed that the confidential
information that indicated the petitioner's involvement in illegal
drug trade was only received on 17 April 2019. 56 This
inconsistency notwithstanding, the fact remains that petitioner's
personal information details were processed as admitted in said
affidavit.
To recall Leander, mere storing of data relating to the private

life of an individual, especially when he is not given an
opportunity to refute the information, amounts to an interference
in the exercise of his right to privacy. Similarly, in Bautista, the
admission by the respondents that they conducted an
investigation of the petitioner constituted substantive evidence to
establish the latter's right to the writ of habeas data. Thus, from the
prism of Leander and Bautista, the Court holds that the inclusion
of the petitioner in the watch-list, the subsequent “validation”
made by the respondent agencies, and his inclusion in the 14
March 2019 narco list relates and pertains to information involving
his private life. The collection and storing of data during the
“validation” period and its use in the creation of the 14 March
2019 narco list, to the Court, constitutes an interference in the
petitioner’s right to informational privacy.
Furthermore, these data and information were never

revealed to the petitioner, despite demand, so that it may be
contested and subjected to inquiry. The complaint filed before the
Ombudsman did not even include any of the information that the
respondents gathered which led them to file the administrative
54 Position Paper, p. 30, para. 81; Id., Vol. II, at 1008.
55 Affidavit dated 22 June 2019; Id.,Vol. I, at 281-283.
56 Affidavit dated 04 July 2019, Id., at 279-280.
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charge against the petitioner. The one-paragraph allegation
against the petitioner is bereft of any supporting affidavit.
Considering the broad and general assertion that proper and legal
methodologies were utilized to obtain and validate the pieces of
information, no opportunity was afforded the petitioner to assess
if the personal information obtained by the respondents
constituted matters of State and not private matters. He was not
given, and still is not given the opportunity, because the case
before the Ombudsman remains stagnant; and neither is there any
other avenue to verify whether or not such pieces of information
were obtained legally, and to ensure accountability of the
respondents' agents who obtained said information. It is
important to note that the respondents already had a watch-list as
early as August 2016, yet they failed to employ the ordinary,
criminal procedures in searching and obtaining incriminating
information under the Rules of Court or other relevant procedural
rules. A general allegation that appropriate safeguards were
adhered to will not suffice in the face of judicial scrutiny. Absent
any clear showing of what information about the petitioner had
been collected, how they were accumulated, stored, processed,
and how its integrity was maintained by the respondents, the
Court can only surmise and presume that these informational
details are private and directly impact the petitioner's right to
privacy. It is the very evil of unbridled intrusion into private
personal information that the writ of habeas data seeks to defeat.
Transparency in the exercise of government prerogative is

implicit in a community where rule of law reigns supreme. It
serves as a deterrent to abuse by public servants and aids in
preventing corruption. Transparency, as the norm, is evident in
the Data Privacy Act and in E.O. No. 2, series of 2016. The opinion
of the National Privacy Commission that, with the enactment of
data privacy laws in the Philippines, the assumption is that every
individual has an expectation of privacy with regard to their
personal information and data, is worth noting.57 Similarly, under
E.O. No. 2, series of 2016, a legal presumption in favor of access to
information, public records, and official records is established. No
request for information shall be denied unless it clearly falls
57 See, e.g., Privacy Policy Office Advisory No. 2018-090, 28 November 2018.
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under any of the exceptions provided by the executive
department.58
With respect to the second element, the Court is also

persuaded that the interference with the petitioner's right to
informational privacy caused an actual or threatened violation of
his right to privacy in life, liberty, or security.
First, the petitioner's right to privacy in life, liberty, and

security was violated when his person was subjected to an
investigation without recourse to the appropriate judicial
processes and without any showing that it was conducted fairly
and legally. The concept of liberty escapes any specific or precise
definition. In Rubi v. Provincial Board of Mindoro,59 civil liberty
was understood to mean as that freedom which may be enjoyed
in a civilized community, consistently with the peaceful
enjoyment of like freedom in others, and includes the right to
exist and the right to be free from arbitrary personal restraint or
servitude. It is not limited to mere freedom from physical
restraint of the person of the citizen, but is deemed to embrace the
right of man to enjoy the faculties with which he has been
endowed by his Creator, subject only to such restraints as are
necessary for the common welfare. This includes one's right not to
be subjected to unreasonable search and seizure, not to be
interfered with in one's liberty of abode, and his right against self-
incrimination.60 The right to security, on the other hand,
guarantees the immunity of one's person, including the
extensions of the person - houses, papers, and effects - against
government intrusion. In Secretary of National Defense v.
61
Manalo, the Supreme Court, through then Chief Justice Reynato
Puno, held that the right to security or the right to security of
person finds textual basis in Article III, Section 2 of the 1987
Constitution which provides the inviolability of the right of the
people to be secure in their persons against unreasonable searches
and seizures of whatever nature. Citing various international
conventions and ECHR case law, Manalo asserted that the right to
58 E.O. No. 2, Series of 2016, Section 6.
59 G.R. No. L-14078, March 7, 1919.
60 See, e.g., Morfe v. Mutuc, G.R. No. L-20387, January 31, 1968; Ople v. Torres, G.R. No. 127685,
July 23, 1998.
61 G.R. No. 180906, October 7, 2008.
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security is connected to freedom from fear and a guarantee of
bodily and psychological integrity or security, thus:
“While the right to life under Article III, Section 1
guarantees essentially the right to be alive - upon which the
enjoyment of all other rights is preconditioned - the right to
security of person is a guarantee of the secure quality of this
life, viz: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably
violated by a powerful ruler. Rather, it is a life lived with the
assurance that the government he established and consented to,
will protect the security of his person and property. The ideal of
security in life and property… pervades the whole history of man.
It touches every aspect of man’s existence." In a broad sense, the
right to security of person "emanates in a person’s legal and
uninterrupted enjoyment of his life, his limbs, his body, his health,
and his reputation. It includes the right to exist, and the right to
enjoyment of life while existing, and it is invaded not only by a
deprivation of life but also of those things which are necessary to
the enjoyment of life according to the nature, temperament, and
lawful desires of the individual."
Given the primacy of the right to be secure in one's person,

courts are required to be vigilant in preventing stealthy
encroachments against it or its gradual depreciation and to ensure
that the safeguards put in place for its protection are observed,
especially since this right is not just protected by our Constitution
but is also reinforced by its recognition as a fundamental human
right under the International Covenant on Civil and Political
Rights (ICCPR) and the Universal Declaration of Human Rights,
to both of which the Republic of the Philippines is a signatory.62
In the context of our criminal justice system, the right to

liberty and security takes a particular significance. Persons and
their effects cannot be unreasonably searched, seized, or intruded
upon by the government. To determine the reasonableness of
such interference, our laws provide for mechanisms to address
possible abuse and to check whether anti-criminality activities of
the State are within the bounds of the law. The main tool in this
instance is the requirement that any search must generally be
conducted through a court-issued warrant, thus allowing the
62 Oga Yon v. People, G.R. No. 188794, September 2, 2015.
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courts to assess the state authorities' actions. By ensuring that any
interference of a person and his effects is done with judicial
imprimatur, the right to security of his person is protected.
It must be emphasized, however, that in certain allowable

instances, some form of state investigation, interdiction and
surveillance that are pursued in connection with anti-criminality
and law enforcement activities, may be carried out without a
warrant issued by the court and will not violate a person's right to
security. The Constitution does not forbid searches and seizures;
it only forbids searches and seizures that are unreasonable. State
authorities have the discretion to conduct covert and discreet
operations, so long as they do not constitute a search or seizure
within the purview of our Constitution or, even if they constitute
a search or seizure, they are reasonable.63 Discreet criminal
investigation or operations conducted by the State are not
prohibited per se. Police and state authorities in charge of law
enforcement have the duty to preserve peace, prevent crime, and
administer justice. Courts should generally avoid enjoining
pending criminal investigations and allow the law enforcement
authorities to perform their functions. But far from having a carte
blanche, state authorities must act within legal bounds. There must
be checks in place to balance the legitimate interests of the State in
preventing crimes and the rights and freedoms of individuals.
63 For instance, police surveillance of a person's activity in public where he has no reasonable
expectation of privacy is permitted and does not constitute a search (Saluday v. People, G.R. No.
215305, April 3, 2018); merely observing and looking at that which is in plain sight is also not a
search (People v. Marti, G.R. No. 81561, January 18, 1991); general inquiries made by police
officers during investigation are equally outside the definition (Celedonio v. People, G.R. No.
209137, July 1, 2015); aerial surveillance of private homes and surrounding areas done within
public navigable airspace in a physically non-intrusive manner is not a search (Florida v. Riley,
488 U.S. 445 (1989) and California v. Ciraolo, 476 U.S. 207 (1986)). It is only when the
government, to obtain private information, intrudes into domains over which an individual holds
legitimate privacy expectation that a "search" takes place (Separate Opinion of J. Carpio in Disini
v. Executive Secretary, G.R. No. 203335, February 11, 2014, citing Katz v. United States, 389 U.S.
347 (1967)).
On the other hand, even though state action may constitute a search, it will nevertheless be valid if
it is not unreasonable. Thus, stop-and-frisk search is valid because it is based on a reasonable
suspicion, brief in duration, and limited only to a pat-down of the suspect's outer clothing, for the
sole purpose of ensuring that he is unarmed. The need for police authorities to protect themselves
outweighed the limited intrusions made to a person and is thus not unreasonable ( Terry v. Ohio,
392 U.S. 1). Similarly, checkpoints and search of moving vehicles are valid searches because of
practical purposes, e.g., the inherent mobility of vehicles, and the existence of certain parameters
that ensures its reasonableness, e.g., limited to visual search. A search where a police officer
merely draws aside the curtain of a vacant vehicle parked on public grounds, or simply looks into
a vehicle, or flashes a light therein is not unreasonable (Sapi v. People, G.R. No. 200370, June 7,
2017).
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In the recent ECHR case of Karabeyoglu v. Turkey,64 it was

stressed that in criminal investigations, the subject person must
enjoy a certain minimum degree of protection required by the
rule of law in a democratic society and that any State action must
be on the basis of an objectively reasonable suspicion and carried
out in compliance with the relevant legislation. Especially when
the investigation involves secret measures of surveillance and the
power of the executive is exercised in secret, it was recognized
that risks of arbitrariness becomes evident. In this instance, the
domestic law must not be expressed in terms of an unfettered
power but must be sufficiently clear in its terms to give
individuals an adequate indication as to the circumstances and
the conditions by which public authorities are empowered to
resort to any such measures. Consequently, the law must indicate
the scope of any such discretion conferred on the competent
authorities and the manner of its exercise with sufficient clarity to
give the individual adequate protection against arbitrary
interference and there should exist guarantees against abuse
which are adequate and effective.65 The failure of the State to
conduct a fair investigation would amount to a violation of or
threat to one's rights to life, liberty, and security.
Here, we find that the process pursued by the respondents

failed to afford the petitioner that minimum degree of protection
to ensure that his rights are neither infringed nor violated. There
is nothing to substantiate the respondents' claim that the
methodology employed is within legal bounds and with respect
to basic human rights. Considering their refusal to give the littlest
of attention to petitioner's request and the fact that the complaint
filed before the Ombudsman is bereft of any indication as to what
pieces of information were obtained and used by the respondents,
there is nothing that can help the Court conclude that the personal
information and evidence were obtained validly and reasonably
and that the “validation” was limited to the petitioner's purported
64 Application No. 30083/10, 07 June 2016. The official judgment of the ECHR is available only in
French. The case, however, was summarized in English in the Press Release issued by the
65 Dragojević v. Croatia, Application no. 68955/11, 15 January 2015.
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involvement in illegal drug trade. In the face of judicial inquiry,
general averments made by the respondents will not suffice. The
situation is particularly alarming considering the admission of the
respondents' counsel during the summary hearing that no
criminal action has been filed against the petitioner and that said
counsel has no knowledge of any intention to file such a case,66
which puts into issue the legitimacy of the operation, that is,
whether or not the information collection effort is indeed one that
pursues an anti-criminality objective. The presumption that an
official act has been performed regularly in the performance of
official duty stands only when no reason exists in the records by
which to doubt the regularity of such performance of official
duty. It is only a disputable presumption which may be rebutted
by affirmative evidence of irregularity or failure to perform a
duty.67 It cannot prevail over positive averments concerning
violations of constitutional rights.68
Second, the interference with the petitioner's informational

privacy had a direct impact on his right to honor and reputation,
which is an important aspect of his right to privacy in life, liberty,
and security. As early as 1914, the Supreme Court has recognized
that the enjoyment of a private reputation is as much a
constitutional right as the possession of life, liberty, or property
and is one of those rights necessary to human society that
underlies the whole scheme of civilization and stable
government.69 The right to a good name and reputation and the
right to personal liberty are as vital and deserving of protection as
the right to existence.70 Our policy on speedy disposition of cases,
for instance, considers that the liberty and reputation of a person
are at stake when there is delay in promulgating the judgment in
a case.71 In bail proceedings, the Supreme Court, in Enrile v.
Sandiganbayan,72 expressly recognized both public and private
reputation as an important consideration in determining whether
66 Transcript of Stenographic Notes taken during the 29 July 2019 hearing, p. 20.
67 People v. Arposeple, G.R. No. 205787, November 22, 2017.
68 Almora v. Dela Rosa, G.R. No. 234359 and G.R. No. 234484, April 3, 2018. In its Resolution
dated 02 April 2019, the Supreme Court denied the Solicitor General's motion for reconsideration.
69 Perfecto v. Contreras, G.R. No. L-8894, December 2, 1914.
70 Seva v. Nolan, G.R. No. L-45024, June 25, 1937.
71 Penalosa v. Rosero, A.M. No. 1492-MJ, January 30, 1982.
72 G.R. No. 213847, August 18, 2015.
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or not to grant bail. In Manalo,73 as above-quoted, it was stressed
that the right to security of person emanates from a person’s legal
and uninterrupted enjoyment of his reputation.
In Biraogo v. The Philippine Truth Commission,74 which

declared as unconstitutional former President Benigno Aquino's
Executive Order No. 01, series of 2010, that created the Philippine
Truth Commission, tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption during the
previous administration, former Associate Justice Arturo Brion
warned against State surveillance, in the guise of fact-finding
activities, without judicial imprimatur and its effect on the rights
of the person investigated:
“To fully appreciate the potential prejudicial effects of

truth-telling on the judicial system, the effects of media exposure –
from the point of view of what transpires and the circumstances
present under truth-telling and under the present justice system –
deserve examination.
Under the present justice system, the media may fully

report, as they do report, all the details of a reported crime and
may even give the suspects detailed focus. These reports,
however, are not branded as the "truth" but as matters that will
soon be brought to the appropriate public authorities for proper
investigation and prosecution, if warranted. In the courts, cases
are handled on the basis of the rules of evidence and with due
respect for the constitutional rights of the accused, and are
reported based on actual developments, subject only to judicial
requirements to ensure orderly proceedings and the observance of
the rights of the accused. Only after the courts have finally spoken
shall there be any conclusive narrative report of what actually
transpired and how accused individuals may have participated in
committing the offense charged. At this point, any public report
and analysis of the findings can no longer adversely affect the
constitutional rights of the accused as they had been given all the
opportunities to tell their side in court under the protective
guarantees of the Constitution.
In contrast, the circumstances that underlie Commission

reports are different. The "truth" that the Commission shall
publicize shall be based on "facts" that have not been tested and
73 Supra, note 61.
74 G.R. No. 192935, December 7, 2010.
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admitted according to the rules of evidence; by its own express
rules, the technical rules of evidence do not apply to the
Commission. The reported facts may have also been secured
under circumstances violative of the rights of the persons
investigated under the guarantees of the Constitution. Thus,
what the Commission reports might not at all pass the tests of
guilt that apply under the present justice system, yet they will
be reported with the full support of the government as the
"truth" to the public. As fully discussed below, these
circumstances all work to the active prejudice of the investigated
persons whose reputations, at the very least, are blackened once
they are reported by the Commission as participants in graft and
corruption, even if the courts subsequently find them innocent
of these charges.
xxx
The most obvious prejudicial effect of the truth-telling

function on the persons investigated is on their persons,
reputation and property. Simply being singled out as "charged"
in a truth-telling report will inevitably mean disturbance of
one’s routines, activities and relationships; the preparation for a
defense that will cost money, time and energy; changes in
personal, job and business relationships with others; and
adverse effects on jobs and businesses. Worse, reputations can
forever be tarnished after one is labelled as a participant in
massive graft and corruption.
Conceivably, these prejudicial effects may be dismissed as

speculative arguments that are not justified by any supporting
evidence and, hence, cannot effectively be cited as factual basis for
the invalidity of the EO. Evidence, however, is hardly necessary
where the prejudicial effects are self-evident, i.e., given that the
announced and undisputed government position that truth-telling
per se, in the manner envisioned by the EO and its implementing
rules, is an independent objective the government wants to
achieve. When the government itself has been heard on the
"truth," the probability of prejudice for the individual charged is
not only a likelihood; it approaches the level of certainty.
In testing the validity of a government act or statute, such

potential for harm suffices to invalidate the challenged act;
evidence of actual harm is not necessary in the way it is necessary
for a criminal conviction or to justify an award for damages. In
plainer terms, the certainty of consequent damage requires no
evidence or further reasoning when the government itself declares
Amended Decision
Page 29
===============
that for as long as the "story" of the allegedly massive graft and
corruption during the past administration is told, the Commission
would have fulfilled one of its functions to satisfaction; under this
reckless approach, it is self-evident that the mistaken object of the
"truth" told must necessarily suffer.
In the context of this effect, the government statement

translates to the message: forget the damage the persons
investigated may suffer on their persons and reputation; forget
the rights they are entitled to under the Constitution; give
primacy to the story told. This kind of message, of course, is
unacceptable under a Constitution that establishes the strongest
safeguards, through the Bill of Rights, in favor of the
individual’s right to life, security and property against the
overwhelming might of the government.” (Emphasis ours.)
Under international law, reputation is also treated within

the context of the right to privacy. Under the ICCPR, the right to
reputation, as contained within one's right to privacy, must be
guaranteed against all such interferences and attacks regardless of
source, be they from State authorities or from natural or legal
persons.75 The ECHR likewise recognizes the right to protection of
one's reputation as an element of the right to respect for private
life.76 A person's reputation forms part of his or her personal
identity and psychological integrity and therefore also falls within
the scope of his or her private life.77
In the case at hand, the Court is convinced that the

interference with the petitioner's right to informational privacy
impacts and affects his privacy right in life, liberty, and security.
The release to the public of a list of drug dealers or narco list that
includes his name and which was drawn from the information-
gathering activity of state agents has conveyed the idea that the
petitioner is a criminal engaged in dealing dangerous drugs.
Thus, the petitioner stands to lose his reputation, considering his
years of public service in all of the three branches of government
and his stature in the legal community. The respondents never
75 See ICCPR, Article IV; Human Rights Committee General Comment No. 16, para. 1.
76 Radio France v. France, Application no. 53984/00, 30 March 2004.
77 Pfeifer v. Austria, Application no. 12556/03, 15 November 2007, citing Fayed and the House of
Fraser Holdings v. the United Kingdom, Application No. 17101/90, 15 May 1992.
Amended Decision
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===============
controverted the petitioner's credentials. Taking these into
consideration, the gravity of the allegations against him should
have prompted the respondents to be more circumspect with their
actions. There is no doubt in our mind that the petitioner's right to
reputation has been violated by the respondents. We agree with
the opinion of former Associate Justice Brion in Biraogo that
evidence of such violation to the petitioner's reputation is hardly
necessary because the prejudicial effects of the respondents'
interference with his right to privacy are self-evident. When the
government itself declared the petitioner as involved in the illegal
drug trade, despite the absence of any criminal action commenced
against him, it is certain that the petitioner's honor and reputation
will be continuously prejudiced by such public revelation.
All of the foregoing considered, the Court is of the view that

the petitioner has substantially discharged the burden of proving
his claim under the writ of habeas data. There is substantial
evidence in this particular case that would warrant the conclusion
that the petitioner's informational privacy right was interfered
with and that his right to privacy in life, liberty, and security was
violated.
The respondents’ defense and

justification for the interference
The petitioner prayed for the deletion, destruction, and/or

rectification of data, files, and information concerning the 14
March 2019 narco list in the respondents' possession and to enjoin
them from further violating his right to privacy in life, liberty, and
security. These reliefs are well within the authority of the courts
to grant under the Rules on the Writ of Habeas Data, particularly
Section 16 thereof:
“Sec. 16. Judgment. - xxx If the allegations in the petition

are proven by substantial evidence, the court shall enjoin the act
complained of, or order the deletion, destruction, or rectification
of the erroneous data or information and grant other relevant
reliefs as may be just and equitable; otherwise, the privilege of the
writ shall be denied.”
Amended Decision
Page 31
===============
The respondents, however, claim that the information and
data subject of the instant action cannot be disclosed, much more
destroyed, considering their confidential and privileged character.
They argue that the information that the petitioner seeks involves
the government's “war on drugs,” which are matters of national
security and concerns law enforcement as well as protection of
public safety. This defense triggers the second prong of habeas data
analysis, as discussed above. At this point, it may be asked, “Have
the respondents shown at least substantial proof, if not clearly
and convincingly, that the interference with the petitioner's right
to informational privacy was justified?”
There is no universally-accepted definition of what national

security is. Its boundaries are elusive. Even in international law,
what constitutes national security and its definition are still
warmly debated. The Philippine National Security Council, in its
National Security Policy 2017-2022 defined national security as “a
state or condition wherein the people's welfare, well-being, ways
of life; government and its institutions; territorial integrity;
sovereignty; and core values are enhanced and protected.” The
definition, however, is not reflected on any existing international
or domestic legal notions of national security. As can be seen
below, such definition may actually be over-broad to fit current
international standards on the matter.
In both international and domestic spheres, national

security has been recognized as a valid ground or justification to
limit or suspend rights or obligations.78 Even the ICCPR allows
derogation and limitation to certain fundamental human rights on
the basis of national security.79 In the context of civil and political
rights, the Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant for Civil and Political
Rights, provide the following interpretative principles:
“29. National security may be invoked to justify

measures limiting certain rights only when they are taken to
protect the existence of the nation or its territorial integrity or
political independence against force or threat of force.
78 See, e.g., Chavez v. PCGG, G.R. No. 130716, December 9, 1998.
79 See Articles 12, 13, 14, 19, and 21 of the ICCPR.
Amended Decision
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30. National security cannot be invoked as a reason for
imposing limitations to prevent merely local or relatively
isolated threats to law and order.
31. National security cannot be used as a pretext for

imposing vague and arbitrary limitations and may only be
invoked when there exist adequate safeguards and effective
remedies against abuse.
32. The systematic violation of human rights undermines

true national security and may jeopardize international peace
and security. A state responsible for such violation shall not
invoke national security as a justification for measures aimed at
suppressing opposition to such violation or at perpetrating
repressive practices against its population.”
The Johannesburg Principles on National Security, Freedom

of Expression and Access to Information admit that limitations on
the ground of national security remains as the exception and
similarly limits its interpretation. National security may be used
as a ground only if the government can demonstrate that the
restriction is prescribed by law and is necessary in a democratic
society to protect a legitimate national security interest. The
burden of demonstrating the validity of the restriction rests with
the government.80
E.O. No. 02, series of 2016, likewise recognizes the national

80 “Principle 2: Legitimate National Security Interest
(a) A restriction sought to be justified on the ground of national security is not
legitimate unless its genuine purpose and demonstrable effect is to protect a country's existence
or its territorial integrity against the use or threat of force, or its capacity to respond to the use
or threat of force, whether from an external source, such as a military threat, or an internal
source, such as incitement to violent overthrow of the government.
(b) In particular, a restriction sought to be justified on the ground of national security
is not legitimate if its genuine purpose or demonstrable effect is to protect interests unrelated to
national security, including, for example, to protect a government from embarrassment or
exposure of wrongdoing, or to conceal information about the functioning of its public
institutions, or to entrench a particular ideology, or to suppress industrial unrest.”
xxx
Principle 11: General Rule on Access to Information
Everyone has the right to obtain information from public authorities, including
information relating to national security. No restriction on this right may be imposed on the
ground of national security unless the government can demonstrate that the restriction is
prescribed by law and is necessary in a democratic society to protect a legitimate national
security interest.
Principle 12: Narrow Designation of Security Exemption
A state may not categorically deny access to all information related to national
security, but must designate in law only those specific and narrow categories of information
that it is necessary to withhold in order to protect a legitimate national security interest.“
Amended Decision
Page 33
===============
security exception and allows the non-disclosure of information
or records on such ground. This, however, is a mere exception
and disclosure remains as the general rule. Unfortunately, the
Inventory of Exceptions81 does not provide for a test or set of
criteria to determine what constitutes national security.
The lack of a comprehensive and consistent legal norm about

the parameters of the concept of national security, poses a huge
risk on its validity and justification for surveillance measures and
other intrusions into the fundamental rights of citizens in
democratic systems. To remedy this dilemma, international and
domestic legal systems have reposed upon the courts the duty to
maintain effective judicial control and supervision over the
evidence in a case. Thus, in Almonte v. Vasquez,82 the Supreme
Court, quoting the seminal Unites States case of U.S. v. Reynolds,83
held:
“Judicial control over the evidence in a case cannot be

abdicated to the caprice of executive officers. Yet we will not go so
far as to say that the court may automatically require a complete
disclosure to the judge before the claim of privilege will be
accepted in any case. It may be possible to satisfy the court, from
all the circumstances of the case, that there is a reasonable danger
that compulsion of the evidence will expose military matters
which, in the interest of national security, should not be divulged.
When this is the case, the occasion for the privilege is appropriate,
and the court should not jeopardize the security which the
privilege is meant to protect by insisting upon an examination of
the evidence, even by the judge alone, in chambers.”
When the issue of interpretation of national security is

brought before the courts by the appropriate government agency
to invoke favorably its exceptional effects as against the rule on
disclosure, it is well-settled that the burden rests upon the state to
prove that it qualifies within the national security exception, viz:
“xxx Under the Constitution, access to official records,

papers, etc., are "subject to limitations as may be provided by
81 Accessed here: http://op-proper.gov.ph/wp-content/uploads/2016/11/Exceptions-to-Right-of-
Access-to-Information.pdf
82 G.R. No. 95367, May 23, 1995.
83 345 U.S. 1 (1953).
Amended Decision
Page 34
===============
law". The law may therefore exempt certain types of information
from public scrutiny, such as those affecting national security. It
follows that, in every case, the availability of access to a particular
public record must be circumscribed by the nature of the
information sought, i.e., (a) being of public concern or one that
involves public interest, and, (b) not being exempted by law from
the operation of the constitutional guarantee. The threshold
question is, therefore, whether or not the information sought is of
public interest or public concern.
a. This question is first addressed to the government

agency having custody of the desired information. However, as
already discussed, this does not give the agency concerned any
discretion to grant or deny access. In case of denial of access, the
government agency has the burden of showing that the
information requested is not of public concern, or, if it is of public
concern, that the same has been exempted by law from the
operation of the guarantee. To hold otherwise will serve to dilute
the constitutional right. As aptly observed, ". . . the government is
in an advantageous position to marshall and interpret arguments
against release . . ." To safeguard the constitutional right, every
denial of access by the government agency concerned is subject to
review by the courts, and in the proper case, access may be
compelled by a writ of Mandamus.”84 (Citations omitted.)
E.O. No. 02, series of 2016, is even clearer in this guideline, as

it provides that there shall be a legal presumption in favor of
access to information, public records, and official records. A
government agency seeking to deny the disclosure must establish
that the information clearly falls under any of the exceptions.
In the recent case of Almora v. Dela Rosa,85 the Supreme

Court set the bounds on national security in the context of the
government's anti-illegal drugs campaign. In the case, the
constitutionality of the PNP - Command Memorandum Circular
No. 16-2016 or the Anti-Illegal Drugs Campaign Plan - Project:
“Double Barrel” was questioned through actions for prohibition,
injunction, and writ of amparo. During the oral arguments, the
Solicitor General, when asked for data relating to the
84 Legaspi v. Civil Service Commission, G.R. No. L-72119, May 29, 1987. At the time this case was
promulgated, the writ of habeas data was not yet introduced in our legal system; hence the
reference to the writ of mandamus.
85 Supra, note 68.
Amended Decision
Page 35
===============
government’s drug campaign, which included data connected to
the narco list, insisted that such information cannot be the subject
of a habeas data petition on the ground of national security and that
the pieces of information were obtained and processed through
legitimate police operations. The Supreme Court, nevertheless,
required the government to submit information and documents in
connection with the police anti-illegal drugs operations. The
Solicitor General, however, refused to submit the required
information and categorized the request for some of the
documents as unwarranted factual inquiries. In its Resolution, the
Supreme Court censured the government’s inaction. When
measured against constitutionally vested rights, such as the right
to due process of law, and the right of the people to information
on matters of public concern, the Supreme Court said:
“There is no doubt that the OSG's generic and

unsubstantiated refusal to submit information prepared in the
ordinary course of business as well as documents that are
officially issued is unacceptable to the members of this Court. It
would be the height of absurdity for this Court, with all its
powers, to uphold such refusal. If this Court cannot obtain the
regularly-prepared information from the OSG as well as from the
rest of the respondents, by what other means can ordinary citizens
get information about their relatives who were killed during anti-
drug operations of the police?
xxx
Apart from these numbers and their bare allegations, there is

nothing else to substantiate the OSG's claim of legitimate police
operations. The lack of any submission of the required
information and documents leads this Court to believe that there
is no basis to the OSG's claim. It is hornbook doctrine that bare
allegations, unsubstantiated by evidence, are not equivalent to
proof, i.e., mere allegations are not evidence.
The PNP cannot claim the presumption of regularity in

official functions because deaths are not supposed to occur during
any of their operations. The presumption of regularity in the
performance of official duty must be seen in the context of an
existing rule of law or statute authorizing the performance of an
act or duty or prescribing a procedure in the performance thereof.
The presumption also cannot prevail over positive averments
Amended Decision
Page 36
===============
concerning violations of the constitutional rights of the accused.
xxx
To clarify, lest the OSG be confused, the order to produce the

information and documents is about the existence of the requested
information and documents. This Court would like to determine
for itself, through the existence of the requested information and
documents, whether the conduct of operations were indeed done
in the performance of official functions. xxx
Contrary to the claim of the Solicitor General, the requested

information and documents do not obviously involve state secrets
affecting national security. The information and documents
relate to routine police operations involving violations of laws
against the sale or use of illegal drugs. There is no showing that
the country's territorial integrity, national sovereignty,
independence, or foreign relations will be compromised or
prejudiced by the release of these information and documents to
this Court or even to the public. These information and
documents do not involve rebellion, invasion, terrorism,
espionage, infringement of our sovereignty or sovereign rights
by foreign powers, or any military, diplomatic or state secret
involving national security. It is simply ridiculous to claim that
these information and documents on police operations against
drug pushers and users involve national security matters so
sensitive that even this Court cannot peruse these information and
documents in deciding constitutional issues affecting the
fundamental right to life and liberty of thousands of ordinary
citizens.” (Emphasis added.)
While Almora, per se, does not pertain to a habeas data

proceeding, it reflects the predisposition of the Supreme Court
when faced with actions alleging State-sanctioned violation of
constitutionally-enshrined rights and the evidentiary burden
faced by the State when defending its actions as being based on
justifiable reasons. In the face of judicial inquiry, mere invocation
of national security, or of any alleged legitimate purpose, absent
substantial evidence to justify State action will not suffice.
The IACHR also recognizes State concerns of national

security as a ground not to reveal information, but similarly
expresses that security forces cannot decide on their own
Amended Decision
Page 37
===============
discretion whether to release the information or not, in the
absence of any external oversight. The IACHR acknowledges that,
in relation to the right to access information, it is common to
allow States to refuse to release information on the grounds that
to do so would damage the State’s national security or ability to
maintain public order. It must be emphasized, however, that a
restriction sought to be justified on the ground of national
security is not legitimate unless its genuine purpose is to protect a
country’s existence or its territorial integrity against the use of
force or threat of force86 - a strict characterization similar to that
used by the Supreme Court in Almora.
In a case decided by the Superior Court of Justice of Brazil,

the concept of national security was held to be “not elastic” and
should not be interpreted so broadly that it favors and promotes
secrecy and authoritarianism, directly opposing the principle of
democracy. The concept of national security must include only
specific situations involving the defense of national borders, the
keeping of the peace at home and abroad, and the preservation of
democratic institutions.87 Specially in cases of State surveillance
and intelligence gathering under the guise of national security, an
action of habeas data may be used to ensure accountability of the
State’s security and intelligence agencies, by providing a means to
verify that personal data has been gathered legally and to correct,
update, or remove information that could have a direct impact on
the right to privacy, honor, personal identity, property, and
accountability. When confronted with arbitrary surveillance or
intelligence activities which give rise to excesses and abuses of the
security organizations, the remedy provided by the writ of habeas
data is appropriate.88
The foregoing considered, the Court finds the respondents'

bare invocation of the national security exception to be
insufficient to constitute a lawful defense within the meaning of
the Rules on the Writ of Habeas Data. The personal information,
data, or documents about the petitioner have not even been listed,
described, or classified by the respondents. The reluctance in
86 Supra, note 29, para. 90-92.
87 Supra, note 32.
88 IACHR, Report on Terrorism and Human Rights, October 22, 2002, para. 289-295.
Accessed here: http://www.cidh.org/Terrorism/Eng/toc.htm.
Amended Decision
Page 38
===============
disclosing informational details and records and the jealous
protection of what the respondents perceive as confidential
information may be based on their notion that “it comes with the
job,” but such a notion must give way to lawful processes. It
cannot stand in the way of asserted constitutional rights.
The respondents did not demonstrate nor illustrate how the

territorial integrity of the country would be compromised by a
disclosure of the petitioner's personal information details that
have to do with his being included in the narco list. The narco list is
touted to contain the individuals who are influenced by or
engaged in illicit drugs trade. If this be so, then the fair, proper
and rule-of-law way to proceed is to charge the petitioner with
the appropriate criminal charges in court. In that manner, there
can be no independent recourse by the petitioner to a writ of
habeas data. The public revelation of such a list of individuals
without the commensurate criminal investigation, indictment,
and prosecution, is fertile ground for a petition for a writ of habeas
data, not to mention exposure to possible criminal and civil
complaints for defamation.
Similarly, a general assertion that the disclosure of

petitioner's personal information details pertaining to the narco list
will nullify legitimate law enforcement pursuits, without
particularizing the whys and hows of it, cannot also be a
justifiable defense against the writ.
In a decision of the Constitutional Court of Colombia, it was

held that the information contained in State databases, which
includes intelligence reports, cannot be kept confidential from the
individual owner of the information, until and unless a statute
consistent with the Constitution is passed. But if the information
is part of a criminal investigation that, consequently, despite
being confidential, is reviewed by a court, then there is express
legal authorization to not disclose such confidential information.
Thus, an intelligence data can only be kept confidential from its
owner if so established by a law that is specific, clear, and
compatible with the Constitution, and that the confidentiality of
Amended Decision
Page 39
===============
information is part of a judicial investigation.89 In the ECHR cases
referred to in our above-discussion, it is also evident that
inclusion in law enforcement lists, to be within a legitimate
interference with one's privacy rights, must be related to a
criminal action which has already been initiated and pending or
terminated, where the person involved is convicted of a crime.
Indeed, there are rules of criminal procedure that govern

law enforcement actions and the very legitimacy of anti-
criminality operations is measured by a faithful adherence to
accepted procedural standards. In the particular case of evidence
gathering and data collection efforts, legitimacy is shown by the
subsequent, prompt institution of criminal actions in court. There
might be a legitimate law enforcement interest in “naming and
shaming” without “criminal action filing,” but the Court cannot
simply guess what the possible law enforcement interests might
be. The respondents could have disclosed these matters, but they
did not.
Thus, to maintain a balance between the opposing interests

obtaining herein, we hereby order the respondents to submit
directly to the Court all information, data, documents, and
records that they collected, stored, and processed pertaining to
the person of the petitioner, in connection with the investigation
or operation that they conducted that led to his inclusion in the 14
March 2019 narco list. If the Court finds any or all of the said
information, data, documents, and records to be privileged or
qualified within the precepts of the above-discussion, then,
following U.S. v. Reynolds, these data and information shall
remain privileged and outside the ambit of a writ of habeas data.
Otherwise, the information, data, documents, and records not
qualified or privileged will be subjected to the effects of the writ
and will be treated according to the appropriate reliefs that the
petitioner may be entitled to.
89 Supra, note 31, para. 231-232.

Amended Decision
Page 40
===============
By proceeding in this manner, the Court does not, by any
means, seek to nullify the executive's discretion in investigating
crimes and in determining what constitutes privileged
information. As in Almora, the Court merely acknowledges that
in the context of an individual's right to privacy vis-a-vis
constitutional guarantees, a wide interpretation of authority and
secrecy afforded to government would ultimately result to a
diminished degree of transparency – something inimical to the
norms in a democratic society. Indeed, our Constitution and its
principles of popular sovereignty do not imagine a State
absolutely devoid of secrets and privileges. But the very same
Constitution provides that this privilege be rationally checked
and, if necessary, for the rule of law to prosper, lifted, in
appropriate cases. In our system of checks and balances, courts
assume the rigid responsibility of preserving and strengthening
the rule of law. Unabashed deference to the executive department
would undermine the structural checks and balances scheme
central to the constitutional separation of powers amongst the
three branches of government. That a man may be denied his
rights at the mere whim of government, is anathema to a
democracy, if the ideal that indeed freedom prevails in our land is
to be upheld. Denying judicial relief based on mere assertion that
the matter involves national security and state secrets, permits, if
not encourages, state agents to ignore legal norms since they
expect to be free from accountability for their conduct.
This is the very duty and responsibility that the Rules on the
Writ of Habeas Data impose upon the courts – to allow the citizen
to establish his or her claim and for the government to likewise
demonstrate its legitimate interest against the claim. In this
manner, the citizen is not left helpless and without any remedy
against the monopoly of State power, but neither is the
government, in the exercise of its legitimate duties and
responsibilities, left powerless and at the mercy of irresponsible
interlopers.
Amended Decision
Page 41
===============
WHEREFORE, the Court's earlier decision to remand is SET
ASIDE. The respondents are directed to produce and submit
directly to the Court all data, information, documents, or records,
duly sealed, regarding the person of the petitioner that have to do
with the information collection efforts and actions undertaken
that led to his inclusion in the narco list, within fifteen (15) days
from receipt of notice.
IT IS SO ORDERED.
Original Signed
APOLINARIO D. BRUSELAS, JR.
Associate Justice
WE CONCUR:
Original Signed
GERMANO FRANCISCO D. LEGASPI
Associate Justice
Original Signed
RUBEN REYNALDO G. ROXAS
Associate Justice
Amended Decision
Page 42
===============
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is

hereby certified that the conclusions in the above decision were
reached in consultation before the opinion of the Court was written.
Original Signed
APOLINARIO D. BRUSELAS, JR.
Associate Justice
Chairman, Former Special Eighth Division

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Republic of the Philippines

FORMER SPECIAL EIGHTH DIVISION

VICENTE S.E. VELOSO, CA-G.R. SP No. 00005-WHD

Bruselas, Jr., Chairman

Is a person's right to privacy invaded by a

On 14 March 2019, Mr. Vicente S.E. Veloso was named in

In our decision of 05 November 2019,2 we considered the

In his motion for reconsideration, the petitioner posits that

While we maintain the opinion that the Rules on the Writ of

Right to privacy and

Though not expressly stated in our Constitution, the right to

5 Rollo, Vol. III, pp. 1369-1409.

The writ of habeas data is intrinsically related to the third

“xxx informational privacy refers to the interest in avoiding

Informational privacy has two aspects: the right not to have

“All US Circuit Courts recognizing informational privacy

To address the felt need for judicial remedies that would

“SECTION 1. Habeas Data. - The writ of habeas data is a

The writ of habeas data can be traced to developments in data

After the Rules on the Writ of Habeas Data were

Burden of proof and evidentiary

In Gamboa v. Chan,21 the writ of habeas data was defined as an

“The writ of habeas data is a remedy available to any person

The writ of habeas data is a fairly novel concept in our

An applicant in a habeas data petition must establish, by

But, as discussed above, the right to informational privacy is

In Gamboa,27 the applicant alleged that the PNP included

“Leander illustrates how the right to informational privacy,

In Leander, the applicant was refused employment at a

The State’s assertion of a lawful defense, such as national

Thus, in the Philippines, in applications for a writ of habeas

The experience in Latin America

This evidentiary structure is not different from and is, in fact,

The Inter-American Commission on Human Rights

Similarly, the writ of habeas data under the Latin American

“xxx restrictions must be explicitly defined in the law and

When there is a conflict or dispute over access to personal

The experience in Europe

The development of the right to access personal information

While Leander considered the doctrine of margin of

35 Supra, note 32.

“103. The protection of personal data is of fundamental

In S and Marper, the ECHR held that storing and

The ECHR’s analysis of the second prong is enlightening and

“xxx While the original taking of this information pursues

The ECHR also explained that for interference to be in

“98. As regards the conditions attached to and arrangements

Finally, like in Leander, the ECHR recognized the State’s

“104. The interests of the data subjects and the community as

119. In this respect, the Court is struck by the blanket and

122. Of particular concern in the present context is the risk of

125. In conclusion, the Court finds that the blanket and

Some recent European cases

Recent cases of similar import include: 1) the 2014 case of

In contrast, some other recent cases where the ECHR found

The right to informational privacy has, therefore, taken

45 Application Nos. 7841/08 and 57900/12, 4 June 2013.

To recapitulate, an applicant who invokes the privilege of