“Public records are exempt from disclosure by the plain language of the Open Government Act if they are: (1) relevant to a controversy to which the Government is a party and (2) would not be available to an adverse party under pretrial discovery rules. (3) In the case at bar all documents are exempt either due to attorney-client privilege or because they are not currently discoverable in the 903 Litigation,” said Assistant Attorney General Braddock J. Huesman in his 13-page motion to withhold documents.
Sablan is due to reply to the government’s motion on April 8.
A hearing will then follow at 1:30 p.m. on the 9th.
Huesman, who represents Gov. Benigno R. Fitial and Finance Secretary Eloy Inos, also told the court that Rep. Tina Sablan’s mandamus petition should not be granted because it was brought forth in her personal capacity as taxpayer rather than as a member of the Legislature.
He said the documents relevant to the CNMI’s transactions with the U.S.-based law firm Jenner & Block, which represents its case in the nation’s capital, would have been made available to Sablan if the Legislature or any of its committees asked to examine them.
“Ms. Sablan’s request for documents is in her personal capacity, not her capacity as a legislator. If Ms. Sablan’s committee, or any proper committee of the Legislature, wishes to examine these documents, it is not only their right, but their responsibility, to do so,” said Huesman.
“That this responsibility has not been exercised to date, by any committee of the Legislature, does not provide an excuse to abrogate a statute,” he added.
Associate Judge David Wiseman removed as defendant in the case acting Attorney General Gregory Baka, upon the defendants’ request who argued that Sablan’s two Open Government Act requests were not addressed to him.
It was Baka who told Sablan that the funds used to pay for the lawsuit in Washington, D.C. came out of the governor’s operating account.
The administration did not offer any further details but said disclosure would undermine the CNMI’s case.
If the court grants Sablan’s petition, the administration will have to disclose the engagement letter or contract between the CNMI and Jenner & Block, LLP; the current employment contract between the CNMI and Howard Willens; automated clearing house or other payment receipts regarding payments to Jenner & Block, LLP; automated clearing house or other transaction reports showing the internal transfer of funds from CNMI accounts; and billing statements from Jenner & Block, LLP.
The administration earlier disclosed Jenner & Block is paid a monthly retainer of $50,000, excluding extras.
Huesman, however, said fee or retainer agreements, are generally not privileged information.
“Moreover, the identity of the client, the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected from disclosure by the attorney-client privilege. But, the information contained in such documents may still be found to be confidential,” he said.
