Fiscal Control Board (Photo by Juan Costa | Center for Investigative Journalism)
By Oscar J. Serrano
In a legal fight for access to information that has been going on for more than two years, the Fiscal Control Board (JCF, for its initials in Spanish) argued before the U.S. District Court for the District of Puerto Rico that it has not delivered public information to the Center for Investigative Journalism (CPI, for its initials in Spanish) to avoid revealing which politicians accept public services reductions.
This and other JCF arguments are contained in a motion that seeks to dismiss the second lawsuit submitted by CPI to gain access to communications between that entity and the Government of Puerto Rico. The second lawsuit was made necessary this year since the non-elected body that governs the island’s finances has delayed the delivery of 22,000 documents (out of a total of 40,000) that they have acknowledged would be responsive to a request made by CPI in a first lawsuit filed in 2017.
The delivery of the first tens of thousands of documents served to source several stories about the Board’s communications with local and federal government entities included in the series “Los emails de la Junta” (“The Board’s Emails”). Some revelations were even mentioned by Puerto Rican U.S. Supreme Court Justice Sonia Sotomayor in the October 15 hearing in which the High Court discussed the constitutionality of Board members’ appointments. Her comments were aimed at establishing that there would be federal control over the members of the Board through Congress although they have argued that their status is just territorial officers and not federal officers.
The 2017 lawsuit covered a request for the Board’s documents through April 30, 2018, a cut-off date to which CPI agreed to on the assumption that the Board would comply with District Court Judge Jay García-Gregory’s mandate issued May 4, 2018. García-Gregory established that the entity is subject to the constitutional right of access to information that the Commonwealth’s Constitution recognizes for its citizens and, therefore, had to deliver the documents the CPI requested.
The Board paralyzed the delivery of the documents in an attempt to disregard the federal judge’s order, so CPI submitted a second claim for documents covering May 1, 2018 and onward.
It’s in this second claim in which the Board has laid out its intention to disregard the obligation imposed by García-Gregory and also its strategy to go back to litigating the constitutional points that the judge had resolved over a year ago in his order.
Also, it’s at this stage of the dispute that the Board presented its arguments that the PROMESA Law —that created the Board and establishes the Government of Puerto Rico’s bankruptcy process— allows them to conduct their work as they deem appropriate and that “the Board wants to conduct its operations so that sensitive communications between it and the federal or local governments are not published.”
“As a simple example, what government official who runs for reelection would want the public to see him or her acquiescing in any reduction of public services?… Similarly, what Board member would want any party in interest to see him or her emphasizing to the federal government some Puerto Rico needs before others?” the entity said in its motion before District Court Judge Aida Delgado-Colón arguing for the dismissal of CPI’s newest lawsuit.
CPI’s legal team, attorneys Judith Berkan and Steven Lausell, presented its opposition to the motion to dismiss and a motion to not only consolidate the cases, but also so that the second case is handled under the parameters already established by Judge García-Gregory in the first case and that impose on the Board the obligation to disclose the requested documents or argue, one by one, why they should not be disclosed. In fact, in the first case there is a motion by CPI to find the Board in contempt that is pending resolution since January 2019.
CPI also pointed out to the judge tactics the Board has used in the litigation that make it more expensive and that implicate runaway spending of public funds. For example, CPI’s request for the second production of documents was not answered by the Board’s clerical staff, but by one of its external lawyers. In the second lawsuit, five external lawyers have appeared on the Board’s behalf; four of them are the same assigned to the first case and are presenting to Delgado-Colón the same arguments that García-Gregory already addressed and dismissed. All paid with public funds.
“The Board is actually stating that the interest of a government official in achieving re-election is more important than the right of the citizenry to know what that government official is actually doing. The JCF, which wields extraordinary power in Puerto Rico, actually is saying that the interest of the citizenry in knowing what is going on and its impact on our future and that of our children and grandchildren, should yield to the personal interests of the Board members? Such arguments simply take one’s breath away. They demean the seriousness of the issues being faced by Puerto Rico at this critical juncture,” Berkan argued in the opposition to the motion to dismiss that the Board submitted to Delgado-Colón.
