Wiseman stands by his ruling, orders Fernandez to produce records

Superior Court Associate Judge David A. Wiseman has denied Northern Marianas College president Carmen Fernandez’s and former acting NMI Board of Regents chairperson Eloise Furey’s request to reconsider the court’s decision that ordered them to produce all public records requested by Rep. Stanley T. Torres.

Wiseman ruled that the Open Government Act contains no language which exempts a government office from producing information if the party seeking the information is motivated by malice or otherwise.

“Accordingly, the Court will not consider the claims or evidence of malice by Rep. Torres as material,” said the judge in denying the motion for reconsideration filed by defendants Fernandez and Furey.

Wiseman said because it appears that the parties divergent account of motivation offers the only genuine factual dispute, he finds that there are no material facts in dispute, and the matter was ripe for summary judgment at the time he rendered the decision.

Pursuant to his first order, the judge said defendants and Torres are further directed to meet and confer in good faith to establish a feasible and reasonable manner of disclosing the public records requested by the lawmaker in a way that will not violate CNMI or federal law, or impugn any individual or entity’s protected privacy interests.

He further ordered that the remaining parties to the lawsuit should appear on Sept. 25, 2008 at 1:30pm for a status conference to report on the results of their meeting.

Torres sued Fernandez, Furey, former assistant attorney general Linda Waugh, and MMI private counsel F. Matthew Smith for allegedly not producing records that he requested pursuant to the Open Government Meetings and Records Act.

Last July, Wiseman ordered Fernandez and Furey to produce all public records requested by the lawmaker.

In the same decision, the judge denied a motion to dismiss the allegations against Fernandez and Furey. He, however, granted a motion to dismiss the allegations against Waugh and Smith.

Wiseman stated in that order that, according to the OGA, all public records shall be available for inspection, “unless inspection of such records is in violation of any Commonwealth or federal law.”

Hernandez and Furey, through counsel Smith, asked Wiseman to reconsider his decision. The defendants asserted that the granting of summary judgment in favor of Torres contains several clear errors which warrant reconsideration and reversal.

“NMC also hopes the Court will recognize the substantial and manifest injustice that has and will result if the current decision is allowed to stand,” said Smith in the motion.

In their response to the motion for reconsideration, Torres urged Fernandez and Furey to leave Jack Angello out of his lawsuit.

Torres, through counsel Antonette R. Villagomez, asserted that he is pursuing this case because he believes that NMI violated the OGA by not complying with his request to inspect public records at NMC.

In denying the motion for reconsideration issued on Friday, Wiseman said the mere absence of a responsive pleading to a complaint does not bar a court from issuing summary judgment; that is, as long as there are no genuine issues as to any material fact that could be raised by an answer.

As is evident from the plain language of the OGA, Wiseman said, a dispute arising over a request for information made pursuant to the OGA, merits expedited proceedings which hardly invites a rigid application of the Commonwealth Rules of Civil Procedure.

“Accordingly, the Court issued a summary judgment requiring disclosure of the requested records consistent with the OGA’s requirements, but allowing NMC to withhold certain information which is not subject to disclosure as long as such redactions are documented in a log providing the privilege or legal ground for withholding such information,” he said.

Wiseman said defendants next challenged his issuance of summary judgment on the claim that it was premature in light of the “numerous issues of material fact in dispute.”

It appears here, the judge said, that defendants misapprehend which facts are material and which facts are immaterial for the purposes of litigating an OGA request.

Here, Wiseman said, he has ascertained the information sought by Torres through his complaint and filings, and that Torres seeks the information from NMC, a public body subject to the OGA.

“Thus, no further facts are required for the Court to preliminarily determine that NMC must produce the requested information for inspection by Rep. Torres,” he said.