Ombudsman Pamela Brown filed an affidavit in the U.S. District Court for the District of Columbia stating that the forms submitted to her office by nonresidents in the CNMI were shredded approximately late Dec. 2009 or early Jan. 2010.
Some lawyers said the act of destroying the documents constitute a violation of federal law.
Citing Title 44 of the United States Code, Section 3301, they say records are protected “regardless of physical form or characteristics [if] made or received by an agency of the United States government under federal law or in connection with the transaction of public business.”
“She may have violated federal law that requires action by the U.S. Justice Department. She states that the shredding was done before the Interior Department received a request for these documents under the federal Freedom of Information Act,” a source from the legal community stated.
The records were received from nonresidents in connection with a registration operation which appears to qualify as a transaction of public business.
Summaries were provided to the U.S. Congress after the data collection was done by Brown’s office.
Section 3314 of the same chapter of the federal law cited earlier states that “records of the United States government may not be alienated or given away or destroyed except under this chapter.
Federal law requires each agency to provide by regulation as to how its federal records are to be maintained and the conditions under which they may be destroyed.
Interior’s departmental manual contains every regulation on the maintenance of federal records.
Interior has form SF 115 on which approval can be sought to destroy documents. However, the documents cannot be destroyed until the archivist of the United States gives his or her approval, Variety was told. The archivist is responsible for all federal records stored in the National Archives.
In the case of the destruction of the forms on Saipan, the secretary of the Interior would have had to make the determination before Brown could shred the documents, Variety was told.
Asked for comment, Congressman Gregorio Kilili Camacho Sablan said, “I do believe in maximizing public access to documents created by government agencies while keeping in mind that there is also a legitimate public interest in preserving the privacy of individual information.”
Assistant Interior Secretary for Insular Areas Anthony M. Babauta, in an email, said: “Unfortunately, I, nor Ombudsman Brown, will not be answering questions. This matter remains a pending issue before the courts.”
Saipan Chamber of Commerce executive director Richard A. Pierce said: “Whether it was illegal to have destroyed those documents I wouldn’t care to speculate, but many, myself included, are sure it was in poor judgment to have done so.”
A long-time local lawyer, Stephen Woodruff, said, “At the time the ombudsman was doing that office’s ‘registration’ of aliens I was critical and highly concerned about the process.”
He said having carried out a “deeply flawed process, without proper legal authority, and without compliance with other federal laws, Pam’s decision to destroy the documents after completing her ‘data collection process’ is the most responsible thing she could have done. Accordingly, I commend her action.”
He said Brown’s action — and the CNMI government’s attempt at gaining access to the forms — “clearly validate” the concerns he expressed at the time.
“The forms collected personally identifiable information, with respect to which the aliens participating clearly have privacy rights and which were collected without constitutional safeguards. Most likely the only reason the CNMI seeks these forms is to use the information against the aliens who filled out the form,” he said.
Woodruff said there is a law allowing for destruction of private information collected by the government.
He said the Freedom of Information Act exempts from release information that would result in a “clearly unwarranted invasion of personal privacy.”
He believes that the Federal Records Act includes in the definition of “records” only documents “preserved or appropriate for preservation as evidence of organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the informational value of data in them.”
He added that when Brown said the forms served only a data collection purpose, “presumably, then, the data with informational value was incorporated in the [Interior] report [to the U.S. Congress], and the remaining data had nothing to do with the ‘organization, functions, policies, decisions, procedures, operations, or other activities of the government.’ Notably, also, the Act specifically provides that ‘stocks of…processed documents are not included.’”
Another source noted that Brown’s predecessor as ombudsman, James Benedetto,” is currently a federal prosecutor, apparently still funded by the Interior Department and would be in a position to influence a decision about the violations of federal law that may be involved in the destruction of documents.”
