Funding source for Fitial suit a litigation secret, says Baka

The Fitial administration still refuses to disclose how it is funding its lawsuit against the U.S. government over the new immigration law.

Acting Attorney General Gregory Baka, in response to a lawmaker’s Open Government Act request addressed to Gov. Benigno R. Fitial, said Friday that government transparency law does not cover the requested records and information concerning the funding sources for the lawsuit.

According to Baka, information about the terms under which the CNMI government has hired the U.S.-based law firm Jenner & Block for the lawsuit, the amounts of money paid to date, and the source of funding are not subject to the Open Government Act because they are “litigation related.”

“[D]ocumentation identifying funding sources and contracts between the CNMI and outside litigation counsel, relevant to the [Covenant] Section 903 controversy, are exempt from disclosure under the OGA because they are not discoverable by the United States either under the attorney-client privilege…, or absent ‘substantial need of the materials’ presenting ‘undue hardship’ in obtaining otherwise,” Baka told Rep. Tina Sablan. “Absent these provisions, agents of the United States could use the OGA as a subterfuge to obtain records unavailable through discovery.”

Baka said that, other than the OGA-exempt documents, there are no public records identifying any public or private source of funding for the lawsuit.

Further, he said, no public funds were reprogrammed to finance the lawsuit, as “the sole public source of funding was from the governor’s operating account.”

Sablan accused the administration yesterday of misleading the public into believing that no public funds have been used so far on the lawsuit. “The governor has thus far been rather coy and evasive about the source of funding for the lawsuit,” she said in an interview.

“Now we see from [Baka’s] letter that funds have indeed been spent from the governor’s operational account. These funds are not the governor’s personal funds. They are still taxpayer funds. Citizens and taxpayers of the CNMI should have every right to know how their tax dollars are being spent,” she noted in a letter to legislative leaders.

Sablan’s letter also urged lawmakers, particularly the leadership, to subpoena information about the lawsuit which, she noted, “has been rejected by the Legislature and that has also been roundly criticized for undermining our ability to negotiate with the federal government on behalf of the Commonwealth’s best interests as we make the transition toward federalized immigration.”

In an interview, Sablan pointed out that her Open Government Act request was submitted to Fitial, and not Baka. “As far as I am concerned, the buck still stops with the governor, and he has thus far refused to disclose the information requested. I suppose I give Mr. Baka credit for weighing in, but the request was not directed to him,” she said.

Baka, in his letter to Sablan, addressed her request for an explanation on the constitutionality of the CNMI government being represented by an outside counsel, instead of the CNMI Attorney General, in the federalization lawsuit.

The acting AG began by attacking Sablan’s use of the Open Government Act for the request. “The OGA requires that all ‘public records’ shall be available for inspection,” he said. “It does not require the government to create records or ‘explain’ anything.”

Yet Baka maintained that it is common practice for the AG’s office to refer cases to private law firms for reasons such as conflicts, lack of specialized experience, or resource constraints. He added that this delegation is in full compliance with the Constitution and is not legally required to be in writing.

“Hundreds of pleadings are filed annually by the OAG without the AG’s personal review or signature. Yet as the deputy attorney general…I did personally review and comment upon various drafts of the complaint in our Section 903 litigation,” Baka said.

Section 903 of the U.S.-CNMI Covenant allows either party to bring to court any dispute arising under the Covenant.

Press secretary Charles P. Reyes Jr. said Baka’s letter is “appropriate” and reflects the governor’s position.

He echoed Baka’s justification for not disclosing the requested information, saying the Open Government Act does protect the CNMI’s interests in court by barring the release of information that government’s litigation opponents could not get. Without this restriction, he said, “we could never protect our tactical litigation secrets.”

“This is not a policy decision by the administration,” he said, “We are simply following the dictates of the law, which prohibit us from releasing such material. Once the lawsuit is completed, we are no longer a ‘party,’ and the information exempt on that basis would have to be disclosed, just as now, we are prohibited from releasing it.”

He added, “Until then, we must follow the wisdom of the drafters of the Open Government Act in exempting litigation matters from disclosure. We should respect the wisdom of our Legislature over the years, and not try to ignore the law when it suits particular partisan purposes or the litigation objectives of our adversaries.”