‘Govt not shielded from releasing OGA docs’

A local lawyer believes the attorney-client privilege and the CNMI Constitution does not shield the CNMI government from releasing documents Rep. Tina Sablan is requesting regarding funding and contracts related to the federalization lawsuit.

Sablan, under the CNMI’s Open Government Act, requested copies of contracts related to the lawsuit, including the contract between the CNMI government and Jenner & Block; documents detailing payments of the contracts; documents detailing funding sources for the contracts; and documents identifying where money was reprogrammed in order to finance the lawsuit.

She also asked for a copy of remarks special legal counsel Howard Willens presented to Gov. Benigno Fitial and his cabinet members regarding the suit.

Acting Attorney General Gregory Baka, in a letter to Sablan, denied her request stating that funding sources and contracts between the CNMI and outside counsel are exempt from OGA disclosure because they are not discoverable by the United States. Baka could not comment for this story, his secretary said, because he was preparing to go off island.

Jane Mack, of Micronesian Legal Services Corp., said courts have consistently held that the attorney-client privilege, absent exceptional circumstances, does not shield the existence of the attorney-client relationship, name of the client, the fee agreement or payments made under the fee agreements. This decision has been upheld in several Circuit Courts and U.S. District Court cases, she said.

Mack said the case of In re Osterhoudt, a case heard in the 9th Circuit, is of particular note. The decision states:

“Fee arrangements usually fall outside the scope of the [attorney-client] privilege because such information ordinarily reveals no confidential professional communication between attorney and client, and not because such information may not be incriminating.”

It is possible that fee agreements might include advice or strategy on the litigation, but according to Shell vs. Drew & Ward, such confidential professional advice could be redacted, Mack said.

In his letter to Sablan, Baka states, “Absent these provisions (attorney-client), agents of the United States could use the OGA as a subterfuge to obtain records unavailable through discovery.”

During a press conference, Baka referred to a portion of the OGA that exempts records which are relevant to a controversy, and which would not be available to another party under the rules of pretrial discovery.

There is a controversy, Mack said, but the exemption does not grant any greater protection than the attorney-client privilege.

“It simply says that where relevant evidence is not discoverable in the lawsuit, it may be protected by the OGA,” she said.

It’s unlikely the documents Sablan requested would be deemed relevant to the controversy, Mack said.

“It would not be discoverable by the U.S. in the litigation about federalization because it’s not relevant to that controversy, not because it’s privileged.

Mack said the United States is within the “any person” language of the OGA, so they can get public documents under the Act, but “Greg Baka’s analysis confuses the OGA and discovery under the court rules of civil procedure,” she said. “The OGA allows for broader dissemination of information than the court rules. Yes, an opponent to the CNMI government could get records under the OGA that it can not get under discovery.”

However, Mack added, the OGA does shield from disclosure documents and records that are relevant to the litigation and not discoverable under federal rules.

Mack said, in her opinion, the meeting between Willens and Fitial and his Cabinet would be protected by the attorney-client privilege.

“This is exactly the kind of information and communication that the attorney-client privilege is designed to protect — information about the progress of the suit, advice on the merits, advice on how to proceed, and possibly advice on what to expect from the other side,” she said.

Sablan also asked for clarification about the fact that the AG’s Office did not sign off on the lawsuit or the contracts. Mack said, in her opinion, that the OGA does not cover such information.

“The OGA isn’t a method for getting questions answered, but for having documents produced,” she said. “Greg Baka’s response in this regard was polite and informative.”

Baka told Sablan hundreds of pleadings are filed annually by the AGO without the AG’s personal review or signature, although as Acting AG he did review and comment on drafts. According to Mack, she believes this is a violation of the CNMI Constitution, Article III, § 11.

The provision states AG’s must sign off on all legal matters, she said.

“The AG may act through Assistant Attorney generals who work in his office or under his direction,” she said. “Greg is correct in that assertion, I think, and the CNMI Court previously held similarly in a challenge to authority of a prior acting AG. However, nothing in the Constitution says that the Attorney General may delegate his authority to outside counsel; in fact the Constitution makes it seems, on the plan language of the section, that such delegation may not take place.”

For her part, Sablan said she would soon submit an OGA request to Secretary of Finance Eloy Inos. After that, it’s up to the courts, she said.