An important preservation of rights against the Fiscal Control Board
The Fiscal Control Board (FCB) has bumped into legal hurdles every time it tries to get judicial support for its contention that PROMESA (the board's constituting act) has granted it expansive powers.
Their most recent stumble in court was quite significant, since what they got was a reaffirmation of the power of the citizens' right, under the Puerto Rico Constitution, to oversee their government and hold it accountable, including the FCB.
This legal victory was logged in the case brought by the Center for Investigative Journalism (CPI) against the Board. This case is being presided by federal Judge Jay A. García Gregory, who recently issued a ruling favoring the CPI and ordering the Board to submit a series of documents.
For more than a year--when CPI had another victory in keeping their case outside of the scope of the Title III litigation--CPI has been waging a legal battle to obtain access to nine different reports that the Board is supposed to deliver to the government on a regular basis (either every week, month, or quarter).
CPI is also requesting documents, reports, letters, emails, and any other exchange of information or materials between the Board and the government and its agencies, and also between the Board and the federal government.
Additionally, CPI has asked to see the financial reports of the Board members before they were first appointed to the entity.
What did Jusge García Gregory state in his ruling?
In general terms, García Gregory has simply established that the Board has to abide by the letter of PROMESA, and that it may not assume powers that are not included in this act nor seize any loopholes to conveniently introduce new powers or limitations.
Specifically, the Board was claiming that it was immune to information access lawsuits and that it does not need to follow Puerto Rico's constitutional law regarding access to information.
'The Board is an entity of the Commonwealth paid for by the Puerto Rican people and, as such, must comply with Puerto Rico law that is not inconsistent with its mandate.'
'Congress giveth, Congress taketh away,' the federal judge established in his opening line for an argument that stated:
a) According to PROMESA, the Board is an entity within the Government of Puerto Rico, not the federal government. Furthermore, lawsuits against the Board are to be submitted at the US District Court for the District of Puerto Rico. Therefore, there is no doubt that the Board can be sued. That is to say, it is not immune, and the adequate forum to file an action is in federal court, where CPI filed its action.
b) PROMESA does not state that no Puerto Rican laws apply to the Board. On the contrary, the Board discharges its responsibility under PROMESA by applying a combination of this act with the laws of Puerto Rico, inasmuch as they are compatible. This means that the Board's role under PROMESA does not provide it with immunity or entitle it to overlook Puerto Rican laws.
c) Submitting to Puerto Rican information access laws does not prevent the Board from discharging its responsibilities under PROMESA, nor does it obstruct the purposes of this act. In fact, it helps discharge their responsibility because, although no part of PROMESA or its Congressional history mentions that access to information laws are not applicable to the Board, on the contrary, the act's legislative history is full of references blaming part of Puerto Rico's economic problems on lack of transparency.
d) 'The Board is an entity of the Commonwealth paid for by the Puerto Rican people and, as such, must comply with Puerto Rico law that is not inconsistent with its mandate.'
e) Any denials to access of information needs to be adequately justified. These denials may not be arbitrary or capricious.
Why is this important?
The reassurance that a right born from the Constitution of Puerto Rico will hold steadfast before a Congressional act cannot be taken lightly. Even more so because we are facing a Congressional act designed to establish an entity that holds powers over all other constitutional branches in the Puerto Rican government. The FCB may act like a power above all other powers, like Congress intended, but it is not immune to the obligation of being transparent and accountable to the Puerto Rican people.
The federal court's acknowledgment of the right to access of information under the Constitution of Puerto Rico cannot go unnoticed in the Supreme Court of Puerto Rico, where most judges have already yielded, no questions asked, to PROMESA's text, in matters like, for example, stay orders that have been filed by the Government of Puerto Rico in all type of cases, and not just money collection actions. Even more on point, the only time they have had before them a controversy having to do with access to information (fiscal plan documents), instead of reaffirming the public's right to know they seized the opportunity to add new exceptions to the freedom of information doctrine, thus minting new excuses for governmental confidentiality. With this federal order, it is evident that Puerto Rico's Supreme Court has surrendered its authority to the Board and PROMESA, and that it has been the government's accomplice in infringing the people's right to know.
García Gregory's decision should be considered alongside the ruling by Judge Laura Taylor Swain, who's in charge of the government's bankruptcy case. This ruling ordered that a decision from Court of First Instance Judge Lauracelis Roques Arroyo be included in the evaluation of the active controversy within Puerto Rico's bankruptcy where creditors are asking for access to fiscal plan information and other documents. In applying Puerto Rico's constitutional law, Judge Roques Arroyo ordered the Rosselló administration to submit the documents requested by Senator Eduardo Bhatia regarding the process between the government and the Board to devise the fiscal plans. We should also consider the victories garnered by the organization Espacios Abiertos in its document requests to the Puerto Rican government.
All together, these rulings constitute what may possibly be one of the few matters to have been settled in this new world scenario of Puerto Rico's bankruptcy and the intervention of a Fiscal Control Board: that the Puerto Rican people have the right to know what is happening in this process where the people's social, financial, and political future is at stake.
Two urgent questions remain: Will the Board defy this order in a federal appeals court and risk another judicial declaration that their reading of the PROMESA Act is wrong? In light of these defeats, when will the Government of Puerto Rico stop insisting on its lack of transparency and accountability?
* The author is Chief Editor at Noticel, CPI co-founder, and leader of the Transparency program at CPI. CPI's legal team in the federal lawsuit includes attorneys Judith Berkan and Steven Lausell, from the Legal Aid Clinical Program at the Inter American University of Puerto Rico School of Law. The legal team also includes Annette Martínez, Luis Jose Torres, Rafael Rodríguez, Osvaldo Burgos, and students from the clinical program. Taken from the Center for Investigative Journalism.