The Senate should seriously consider the call by a data privacy expert to look into the possible data breach of files from the Department of National Defense (DND), in the wake of the political firestorm over the Duterte administration’s move to void Sen. Antonio Trillanes IV’s amnesty for his supposed failure to submit his application form.
Trillanes maintains he filed it, and documentary evidence such as video clips, photos and news reports from that period appear to support that claim. But the Armed Forces of the Philippines headquarters’ personnel division (J1) certified that Trillanes’ amnesty records are missing, raising urgent questions: How did that happen, and who should be responsible?
Lawyer Jamael Jacob, a former director of the National Privacy Commission and now a data protection officer at Ateneo de Manila University, said: “In Trillanes’ case, one could argue that the loss of his record by the DND amounts to a type of data breach.”
That’s because the Data Privacy Act requires the DND and other government agencies to safeguard information such as Trillanes’ amnesty application; it should have employed measures to protect personal information against “natural dangers such as accidental loss and human dangers such as unlawful access,” said Jacob.
The National Privacy Commission should also look into the case since the privacy law gives the commission the freedom to initiate its own investigation even without receiving a complaint, the lawyer added.
The issue assumes crucial import because it may well go beyond Trillanes and affect ordinary citizens, who depend on the government for the safekeeping of their public documents.
But the adverse decision by Makati Regional Trial Court Judge Elmo Alameda last week against Trillanes for not having the original copy of his amnesty application — the lack of which, said the judge, voids the amnesty — raises the possibility that mere absence as such would now cast doubt on the legal status of all manner of public transactions and civic documentation.
As lawyer Jude Sabio put it in an opinion piece in Rappler: “If we are to follow the logic of Judge Alameda’s ruling, then any other public document will have to be subject to an inquiry as to the existence of a prior application form… If a traveler is in the airport and presents a passport, a BID agent can legally ask for a previous application form, which makes it necessary for the traveler to always bring with him a previous application form.
A policeman can require the presentation of a previous application form if he flags down an erring motorist.
A court can now challenge a person holding a land title to present a previous application form.
Many more examples can be shown to support the absurdity that results from the ruling of Judge Alameda, which is in direct contradiction with basic principles of evidence in relation to public documents.”
Many observers have also pointed out the leap in logic in Alameda’s ruling — that the absence of Trillanes’ application form in the DND record meant he never filed one in the first place, when, given the background of the case, the paper might only have gone missing, or as Trillanes has alleged, perhaps was even intentionally mislaid.
How can an important document, after all, just vanish from the custody of a government agency?
And how vulnerable are the rest of us, then, from these breaches of personal and official data that the government is expected to keep private and secure?
Malacañang’s campaign against Trillanes, and Alameda’s ruling, placed the onus on the senator to produce the document.
But, as Trillanes’ lawyer Reynaldo Robles protested, “Shouldn’t the DND be held accountable for this infidelity of custody of
official documents?”
Former national security adviser Jose Almonte echoed that point: “You do not punish the one amnestied just because the original was not located. You punish the custodian of the document.”
There are records management laws in place that penalize the negligent handling of government archives by their personnel, as well as acts such as pilfering or tampering with official documents.
What violations, if any, are involved in the mysterious disappearance of Trillanes’ papers, and how can the government’s record-keeping be strengthened to prevent similar breaches?
Indeed, if the records of someone like Trillanes are not safe within the confines of a highly meticulous, records-obsessed organization like the AFP, ordinary citizens may well assume that theirs, too, are in an even more precarious position in the porous, shambolic government bureaucracy.