Open Government Act Case: Opening briefs filed

July 10, 2009

Representative Tina Sablan has filed a response to the Office of the Attorney General's opening brief in the Open Government Act Request Case, which is now in the CNMI Supreme Court.

The July 2, 2009 opening brief from the OAG is entitled, "GOVERNOR AND LT. GOVERNOR, SANTOS AND TUDELA’S ANSWERING BRIEF." This appears to be an incorrect title since Huesman is not answering anyone and who are Tudela and Santos? Was this title taken from another case?

The arguments in this opening statement are truly weak. The only thing that is clear to me from reading this is that this appeal is a stalling tactic. The main arguments posed are in questions:

  • Was it error for the trial court to impermissibly shift the burden of proof?
  • Did the trial court err in reaching its decision while ignoring the only case on point in any jurisdiction?
  • Did the trial court err in relying on cases that are not analogous to the case at bar?
  • Was it error for the court to rule that the documents are not work product or attorney-client privileged and order them released?
The brief states that defendants, Governor Fitial and Lt. Governor Inos, claimed two exemptions for refusing to disclose the documents - attorney-client privilege and the litigation exception. The litigation exemption is the issue that is being appealed.

Representative Sablan's REPLY TO APPELLANTS’ OPENING BRIEF completely tears apart the weak and even ridiculous arguments from Huesman's opening statement. Rep. Sablan states (emphasis added):
"The trial court did not improperly shift the burden of proof onto Appellants to establish that nondisclosure was clearly unnecessary to protect a vital government function. Appellants argue that once the trial court had found that the litigation exemption provided in 1 CMC § 9918(a)(8) applied to the requested records, it should have imposed on Ms. Sablan the burden of proving that nondisclosure was clearly unnecessary to protect any vital government function pursuant to 1 CMC § 9918(c). Appellants’ argument defies common sense and logic and misinterprets case law.

Ms. Sablan cannot reasonably be expected to prove that no vital government function would be compromised in disclosure when she has not even been allowed to see those records. Moreover, case law firmly establishes that the burden of proof in justifying nondisclosure rests with the party that stands to be harmed by disclosure or benefited by nondisclosure.
She continues her argument saying:
The trial court correctly recognized that Ms. Sablan would be improperly and severely disadvantaged if it were to impose on her the burden of proving that nondisclosure was clearly unnecessary to protect a vital government function. In ordering several hearings, briefings, and an in camera review of all the requested records before determining that nondisclosure of some of the records was indeed clearly unnecessary, the trial court properly applied relevant case law, 1 CMC § 9918(c), and the express mandate of the Open Government Act to impose the burden of proof on Appellants and liberally construe the law in favor of disclosure. 1 CMC § 9901.
Rep. Sablan states that "the trial court did not erroneously ignore analogous case law cited by Appellants, but that the Appellants cited case law that is simply not analogous." She cites the cases and succinctly articulates the flaws in the opposition's arguments.

Rep. Sablan contends, "The trial court correctly and properly determined that nondisclosure of the requested records was clearly unnecessary to protect any vital government function."

She argues that merely stating that the government would suffer damage by disclosing the arguments does not make it so. From the brief:
Appellants do not and cannot articulate with any degree of persuasiveness a single reason as to why or how the requested records would impair the government’s position in the 903 litigation and thereby warrant a finding that nondisclosure is clearly necessary to protect a vital government function. Moreover, Appellants do not and cannot dispute the fact that the estimated total cost of the 903 litigation, the government’s budget generally, the salaries paid to government attorneys are already public knowledge, nor do they dispute the fact that the trial court found after in camera review that no litigation strategy or cap on expenditures would be revealed in the disclosure of the requested records. ER, at 12-13. These facts render illogical Appellants’ repeated statements that the government would suffer any disadvantage in the 903 litigation if the requested records are disclosed, let alone harm to any vital government function.
The key issue that runs through all of Rep. Sablan's documents is that the intent of the law and the people's right to transparency and open government should be upheld.

The lawsuit that was filed by Governor Fitial certainly does not have public support or the support of the legislature, yet he went ahead with it anyway, and he used public funds. Aren't the Governor, the Lt. Governor and the Office of the Attorney General really thumbing their noses at the citizens of the CNMI? Why do elected officials think that they can do whatever they want in the name of their office as long as they attach the claim that it is "for the good of the people?" Isn't this what happened when former Governor Froilan Tenorio first decided to spend millions of taxpayer dollars to pay for Abramoff to block the very legislation that Fitial is continuing to fight? Isn't this what happened when former Governor Pedro Tenorio, former Acting AG Kara and then Speaker Fitial secured a contract renewal with Abramoff in a questionable scheme that also cost taxpayers millions of dollars? What makes elected or appointed government officials think that they can conceal public records, manipulate facts, and push an agenda counter to the will of the people? Ego? Arrogance? Narcissism? Power? Or is it because until Representative Sablan came along to say that the "emperor has no clothes", few have really challenged the illegality of their acts?

The Open Government Act is not difficult to understand and the intent of it is very clear. It appears that the Governor, Lt. Governor and OAG are fighting the trial court's decision because they do not want their secrets revealed before the November election.

Representative Sablan's argument here nails it:
Indeed, it is worthwhile at this juncture to consider the vital government function served by the court system in upholding the rule of law and protecting a fundamental tenet of any democratic society – that is, the right of the people to remain informed so that they may retain control over the government that serves them. Consistent with the express mandates of the Open Government Act and public policy favoring the spirit of transparency, the government’s ability to refuse to disclose public records must be carefully weighed against the public’s right to know. “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,” and moreover, “[i]t is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy … [and] it is vital that citizens have easy access to public records in order that the society may remain free and democratic.” 1 CMC § 9901; Mell v. New Castle. In the absence of any compelling or persuasive justifications for secrecy, the government’s insistence on nondisclosure must be struck down by this court, the judgment of the trial court must be upheld, and the requested records must be released.
If I ever needed to hire an attorney I would want someone just like Representative Tina Sablan to represent me. She may not have a law degree, but everything that she has filed in the Open Government Act case from March 3, 2009 onward has been coherently stated and makes perfect sense.

Huesman, on the other hand, has put forth extremely weak arguments. Clearly, the defendants have no case and have filed the appeal only as a means to stall and delay. What arguments can you put forth when the case is over and there are none? Only ones that "defy common sense, are "illogical", and "misinterpret the law" as Rep. Sabpan pointed out.