Dear people of the Commonwealth,

 

On Friday, August 28, 2009 the Supreme Court issued an opinion affirming the Superior Court's order releasing certain financial records related to the Governor's federalization lawsuit, records that had been requested pursuant to the Open Government Act. 

 

The initial OGA requests had been directed to the administration in October 2008 and again in December 2008 and both had been denied in their entirety.  A petition for mandamus relief was filed in the Superior Court in February 2009, and after a series of hearings, briefings, and an in camera review of the documents in question, the Superior Court ordered the release of 30 documents in June 2009.  The administration appealed to the Supreme Court immediately thereafter, and following briefings and a hearing in July, the Supreme Court ultimately upheld the trial court's order releasing the documents, and instructed the administration to make the records available for public inspection by 5:00pm on August 31, 2009.  

 

In compliance with the court order, at exactly 5:00pm yesterday, August 31, 2009, Assistant Attorney General Brad Huesman turned over 30 documents related to the Governor's federalization lawsuit that had been ordered for release by the courts pursuant to the Open Government Act. 

 

The Supreme Court's slip opinion, and the records that were released, are all attached in this email, and are available at www.tinasablan.com/forum .  The released records include: 

 

1)  Seven pages of invoice summaries from Jenner & Block, LLP, the private law firm that was retained by the Governor's Office to represent the CNMI in the federalization lawsuit, plus one page from the detailed invoices showing hourly rates paid to Jenner & Block attorneys and staff;

 

2)  Seven pages of voucher entries showing payments made, per the Governor's instructions;

 

3)  Five pages showing fund status reports from the Governor's office accounts;

 

4)  Two pages showing supplier payment inquiries from the Department of Finance;

 

5)  Four pages of memoranda from the Governor to the Secretary of Finance, copying Special Legal Counsel Howard Willens;

 

6)  Three pages showing instructions from the Department of Finance to the Bank of Guam authorizing wire transfers to Jenner & Block; and

 

7)  Two pages showing money transfers between the Governor's Administrative Services account and the Governor's Discretionary Account.

 

I am also including the Superior Court's order describing and listing the documents ordered for release, as well as records showing actual expenditures from the Governor's accounts for Fiscal Years 2007 and 2008, annualized expenditures for FY 2009, and the Governor's proposed budget for these accounts for Fiscal Year 2010 (submitted to the Legislature in April as part of the Governor's total budget proposal for FY 2010), and the Governor's professional services services contract with Howard Willens, Special Legal Counsel who signed off on the Governor's lawsuit (Mr. Willens' contract had been released in April 2009 pursuant to an earlier trial court order).    

 

 

Total retainer payments made to Jenner & Block from the Governor's accounts, in six installments between October 2008 and April 2009:  $300,000.   

 

There appear to be significant gaps in the records released thus far.  For example, the Jenner & Block invoice summaries released cover the time period beginning on August 26, 2008 and ending on February 27, 2009; the Department of Finance records only show payments made to Jenner & Block between October 2008 and April 2009.  The agreement between the Governor's Office and Jenner & Block was first effectuated, however, on June 6, 2008 (according to the privilege log filed with the court by the Attorney General's Office), and the federalization lawsuit continues to this day. 

 

Moreover, although the court had only authorized the redaction of private and sensitive bank account numbers in the records ordered for release, the Attorney General's Office apparently took the liberty of also redacting other public expenses that may have been connected to the Governor's federalization lawsuit that were shown on the fund status reports ordered for release, and names of contact persons and other information on the records showing wire transfers between the CNMI government and Jenner & Block.  In addition, although the records released show at least six separate retainer payments made to Jenner & Block between October 2008 and April 2009, the Governor's memo authorizing the first payment is missing, and at least three wire transfer authorizations made in November 2008 and January 2009 appear to also be missing.

 

Also conspicuously absent from the records released thus far: the Attorney General is not named anywhere as a recipient of any of these records, though Special Legal Counsel Howard Willens is; records of payments made for Howard Willens' services connected to the Governor's lawsuit are not included, though they would certainly have been responsive to the OGA request; and there is no written record of the Attorney General expressly authorizing or even acknowledging the retention of legal services by Jenner & Block on behalf of the CNMI.    

 

On the whole, the decisions of the Superior and Supreme Court represent a significant win for good governance and the right of the people to be informed and retain control over the government that serves them.  From the Open Government Act: "The people of the Commonwealth do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created."   

 

The struggle to obtain basic public records these past 10 months, and the apparent gaps in the records that were finally released, however, serve as a powerful and troubling indicator that the CNMI's public officials still have a long way to go in terms of recognizing and respecting the critical importance of honest, transparent, and accountable government in ensuring a healthy democratic society.  They also underscore the equally critical importance of active and vigilant citizens who know and pursue their rights to an open and responsive government. 

 

I plan to submit a follow-up request to the Governor and the Secretary of Finance for the above-mentioned records that are apparently missing, and for records showing billings and payments made to date.

 

For questions or comments, I can be reached at tinasablan@gmail.com or 285-3935.