‘Transparency is not the highest virtue’

The Fitial administration is bent on concealing financial details about the federalization lawsuit until the case is over.

Acting Attorney General Gregory Baka said in a press conference yesterday that the administration is only following the law when it declined a lawmaker’s Open Government Act request for financial information about the lawsuit Gov. Benigno R. Fitial had filed against the U.S. government over the labor provisions of the new immigration law. He noted that the OGA prohibits the release of certain litigation-related information that the government’s opponent in a lawsuit could not otherwise get in court.

How the CNMI is funding the lawsuit, Baka added, must remain a secret because the deep-pocketed federal government might use the information to run the Commonwealth out of court.

“The Legislature, in its wisdom, when they passed the Open Government Act, recognized that knowing the details of a litigation opponent’s budget—the funding terms, the temporal limitations, the amounts expended so far, expert witness invoices, or other financial details relevant to a controversy—would confer a great advantage against the adversary, particularly if the opponent has fewer financial resources,” Baka said.

He added, “If they [federal government] know how much money we have, and what percentage we’ve used up, for example, then the feds could just bring a flurry of motions. They could run us out of court; we’re going to lose not on the merits. We just want a fair day in court. We want to make sure that that is not sabotaged, whether intentionally or inadvertently, by people disclosing things that the federal government does not have the right to know. It’s not trying to keep it from the people, it’s to make sure that the United States doesn’t get it. It has to be kept from the people until the litigation is over.”

Rep. Tina Sablan on Wednesday accused the government of abusing public trust when Fitial refused to disclose financial information about the lawsuit. She said there is no legitimate reason for such information, including fee arrangements, the terms of contracts financed using public funds, and sources of funding, to be withheld from the public.

“Not when the lawsuit has been filed on behalf of the people of the CNMI, and not when public funds are being used. The governor’s refusal to disclose such information amounts to one more abuse of the public trust,” she said.

But Baka, continuing his defense of the administration’s action, said that transparency is “not the highest virtue.” He went on to compare Sablan’s request to filing an OGA request for health records from the government-run Commonwealth Health Center or for answers to the test questions from Northern Marianas College.

“If you want to file an Open Government Act request for the [NMC] teachers to give the answers, I would suggest that any judge in the Commonwealth would rule against you. This is exactly the same situation. The Legislature [that passed the OGA] says no, we’re not going to sabotage every single case that we file by giving out all the non-discoverable information to our opponent before the case is finished. As soon as the case is over, of course, you get every single thing,” he said.

“But again, transparency is not the highest virtue,” he added. “That’s the key issue. The Legislature recognized that, and we are here to follow the law. If I were to advise the governor to give out something that he is forbidden from giving out, I would be doing a bad job. I would be negligent in my duty. I might as well just go and move to Guam,” he added.

For his part, Fitial said that lawmakers are missing the larger issue, which, he said, is that the lawsuit was necessary to uphold the rights of the Commonwealth pursuant to the Covenant.

“The Legislature seems to be caught up in their own political world. They are not able to look at the big picture. This lawsuit is only asking the court to clarify the authority of the federal government to impose their labor law. I strongly believe that labor is a local government issue,” Fitial said.