Greg seems to give 2 basic reasons not to disclose how the CNMI government is funding the lawsuit against the US challenging federalization of our immigration. The Open Government Act doesn't apply because the information is "litigation related" and there are no other "non-litigation related documents."
The Open Government Act--OGA
The people of the CNMI did not yield their sovereignty to the Governor or government which serves them. The people, in delegating authority, did 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 must remain informed so that they may retain control over the government they've created.
We have an "open government act" which provides us access to information in our government. It is to be construed in favor of access; any and all exceptions are to be construed narrowly or strictly.
We have a right to know how the government spends our public funds. We have given the government a narrow exception that provides for non-disclosure of documents necessary to allow it to prosecute and defend legal cases. But this exception is subject to interpretation. Is it so broad that we have given up the right to know how public funds are spent in litigation? Or is it a narrower exception?
The litigation exception to the OGA
Greg seems to argue that the "litigation" exception for disclosure under the OGA is co-extensive with the attorney-client privilege.
The attorney-client privilege is a privilege between client and attorney and is invoked by the client. Attorneys, of course, must keep their client's confidences. So one question to begin with here is "who is the client?" The CNMI is the plaintiff--that means our government is the client. To me that means the people are all part of that client base. (Think government "of the people, by the people, for the people.") The OGA seems to recognize that the people, who hold sovereignty, must be kept in the loop of information.
EDIT: I've now learned that it is clear law that
the identity of a client, the fee agreement and payments of fees are NOT protected by the attorney client privilege or the work product doctrine.
There's a whole string of cases in the federal courts on the issue and all going in the same direction--not protected. In the 9th circuit, a case to look at is In re Michaelson, 511 F. 2d 882, 888 (9th Cir. 1975). So Greg gains nothing by arguing that attorney-client privilege protects this information. IT DOESN'T.
Even if the privilege generally did, however, protect such information, I don't think that there is necessarily a co-extensive protection from the OGA, which requires limited, strictly-construed protection to litigation-related matters in order to keep secrets from the public.
The federal courts rulings that fee arrangements are "peripheral" and not litigation-related, not work product, all seem to undermine Greg's supposed analysis. I wonder what he cites as authority for his position. (The newspapers don't say and don't carry his full letter.)
It seems reasonable to me that the people should be allowed in on the secret of who represents them and how that firm is being paid. An attorney would not be able to keep this information secret from his client. And the government shouldn't be allowed to keep this information secret from the people who are, ultimately, the client.
The protection of litigation materials from discovery by the adverse party should be narrowly construed to mean only those materials necessary in the prosecution or defense, the untimely disclosure of which could affect the outcome. The Marianas Variety article mentions a report Howard Willens gave in a cabinet meeting on the progress of the lawsuit; to me, this clearly falls within the exception. In contrast, though, the OGA requires that employment and salary matters are within the clear ambit of public information. I don't think you can cloak this information under the "litigation" label and then claim that it's protected from disclosure.
And in this particular instance, it doesn't seem as if we're talking about some great secret that, in the hands of the opposition, would give them an unfair advantage in the litigation. We're talking about public funds and how they're used. It isn't likely going to help the Federal Government in the lawsuit to know how much money we're spending on it--unless the Governor is illegally using federal dollars for the project (in which case, the Feds could find out anyway by an audit of their own). There's no suggestion that he is using federal funds, so why not disclose the truth?
And this is where I can't figure things out. Why doesn't our Governor want to tell us where the money is coming from? Has he started thinking that the public funds are his alone and that he's not constrained by the CNMI Constitution and his public duty? Has he no obligation to report to the people?
And that's a very scary thought. Tina Sablan is right to be using the OGA, whose very purpose is to keep the citizenry informed so we can make sure our government is operating the way we want it to.
If the money is coming from elsewhere, not public funds, then we, the people are possibly NOT the client. And the lawsuit should not be filed in the name of the CNMI. At the very least, we need to know about this, if this is happening. The professional rules of conduct prohibit an attorney from being directed or regulated in his/her professional judgment by anyone other than the client. If the law firm representing the CNMI is being paid by someone other than the CNMI, we need to know so we can make sure that someone else isn't the one directing the litigation.
No documents that aren't litigation-related?
Greg says there are no documents that aren't "litigation-related." That no re-programing of funds is involved. That the money is coming from the Governor's discretionary fund. That's what we want to know more about. How does the Governor have half-a-million dollars in discretionary funds? Why can't those funds be used for more pressing needs? That's why we need to be informed.
Greg has construed the "litigation-related" term so broadly that everything about the lawsuit is said to fall within its bounds. He also insists that it is perfectly normal to use outside counsel for CNMI-government lawsuits, despite the CNMI Constitution's clear prescriptive statement that all legal actions by the CNMI must be filed by the CNMI Office of Attorney General (OAG). This is in apparent answer to the underlying question, the reason we want the information-why are we spending money on an outside firm and why isn't the CNMI AG handling this case?
As to the use of "outside counsel," the OAG does work through all of its assistant AGs and the AG himself cannot personally review every piece of litigation before it is filed. That makes sense. But it doesn't necessarily follow that you can constitutionally delegate the responsibility of the AG to represent the CNMI outside of the AG office to private counsel, or to do so without a written delegation.
The reason the AG delegates within the office is because of the workload. I also see the necessity of being able to have different counsel when there are "conflicts of interest" but theoretically, if you (the AG's office) represent only one client-the CNMI government-then you shouldn't have any conflicts. (Conflicts arise when you represent more than one client.) That leaves "lack of specialized experience" or "resource constraints" as justifications for needing outside counsel. The latter-resource constraints-is a bogus suggestion. If you have hundred of thousands of dollars to hire private counsel, you are not constrained by limited resources.
So that leaves delegating to outside counsel because of lack of specialized experience. But the CNMI Constitution doesn't give a loophole to the requirement for the AG to represent the CNMI in all litigation for this reason. And the OAG could just as easily hire an attorney in-house who does have the experience. So again, none of these reasons for why the CNMI executive is saying they can hire private, outside counsel and NOT have the AG's Office sign on the complaint and do the work are persuasive or logical.
And saying that the Governor does not have to create documents to disclose is just ludicrous. There are documents: Do you really expect us to believe that you've hired a law firm and are paying thousands of dollars (hundreds of thousands of dollars) and have no written agreement? Of course there is a writing /contract. Even the model rules of professional conduct strongly urge attorneys to put their fee-agreements in writing. The issue is simply whether these documents are "litigation related" and exempt under the OPA or not.
The CNMI Government, including Governor Benigno R. Fitial, should not be allowed to hide information from the public, deciding what we need to know and what we don't, when it comes to where public money is coming from, how it's being spent, and how matters and actions being done in the public's name are being paid.
So all in all, I'm not impressed by Greg Baka's obfuscation with Legal Speak. Who is paying for this litigation and where are the funds coming from? If we're using public funds, we have a right to know. Tell us.
And Saipan Tribune--use a photo of Greg Baka-not Alan Barak!