Inos nixes Sablan’s request for lawsuit funding sources

This came about after Finance Secretary Eloy S. Inos declined Sablan’s Open Government Act request for documents detailing where the local government is getting the money to finance the suit.

In a Dec. 19 letter to Sablan, Inos said the documents requested are exempt from disclosure under the OGA “because they are not discoverable by the United States under the attorney-client privilege.”

Sablan said she is disappointed but not surprised by the Finance Secretary’s refusal to disclose basic information about how taxpayer funds are being spent for a lawsuit that has been filed by the governor on behalf of the entire CNMI. “I see no other choice at this point but to appeal to the courts for resolution,” Sablan said.

Press secretary Charles Reyes Jr. said it is “very unfortunate that Ms. Sablan is interested in pursuing more litigation unnecessarily.”

Reyes said the administration believes that, based on the advice of its lawyers, it is acting according to the law.

“We are confident that our position is a legally valid. We are prepared to provide our information after the federalization litigation is over,” he said.

The lawmaker had requested copies of contracts related to the lawsuit against federalization, including the contract between the CNMI government and law firm Jenner & Block; documents on the payments of the contracts; documents detailing funding sources for the contracts; and documents identifying where money was reprogrammed in order to finance the lawsuit.

Acting Attorney General Gregory Baka earlier declined to produce the same records for Sablan, arguing that such documents are exempt from the OGA because they are related to a pending issue in the lawsuit and would not be discoverable by the United States.

Baka’s decision prompted Sablan to file the same OGA request with Finance on Dec. 11, seeking records related to funding sources for Fitial’s lawsuit.

In his Friday response to Sablan’s request, Inos said documentation identifying funding sources and contracts between the CNMI and outside litigation counsel “has been made indisputably relevant to the Section 903 controversy” by the lawmaker’s letter to the governor dated Oct. 16, 2008.

Inos said the exemption from OGA disclosure applies only while the Commonwealth’s Section 903 litigation remains pending.

Once the lawsuit is concluded, Inos said, Sablan may then freely inspect the pertinent records.

Sablan, however, argued that the Fitial’s administration’s claims of exemption from the OGA hold no water in this case.

She pointed out that the administration has already publicly estimated a budget of $400,000 for the lawsuit and that it is no secret at all that the CNMI is in a serious financial crunch.

The Legislature, Sablan noted, even came up with a committee report that rejects Fitial’s request for appropriation for the lawsuit.

The committee report had deemed that the CNMI cannot afford the lawsuit and that funds would be better spent on essential services, she said.

“The CNMI’s budgetary challenges are already matters of public record…so why the secrecy at this point about the source of funding for the litigation?” the lawmaker asked.

Sablan raised three issues in Inos’ letter.

First, Sablan said, the use of the word “indisputably” in the secretary’s letter suggests that Baka’s previous response to her OGA request was at that time “disputable” even in the acting AG’s eyes.

“In other words, there was ambiguity about whether or not the OGA would apply with respect to my request, and the Administration, under the advice of the acting AG, has chosen not to liberally construe the law, and not to err on the side of openness and transparency, but rather on the side of secrecy,” she said.

Second, Sablan said, the Department of Justice memo that cited her original Oct. 16 letter to the governor did not refer to her request for financial records related to the lawsuit. Rather, she said, the DOJ memo cites only the other part of the letter, which was the request for clarification on Fitial’s standing to file the suit without explicit authorization from the attorney general.

Finally, she said, the so-called “indisputable relevance” of funding sources and contracts to the controversy and the claimed OGA exemption, are “like the Governor’s standing to file this lawsuit in the first place, certainly and absolutely disputable.”

Sablan believes that the records she requested should be open for public inspection now, as public funds are being spent.