Photo by Dennis Rivera | Centro de Periodismo Investigativo
Whenever Puerto Rico’s Fiscal Control Board (FCB) has sought the courts’ support over its view that the PROMESA law grants it with expansive powers, it has clashed with the judicial wall.
The Board’s most recent setback is very significant as the citizens’ right under the Puerto Rico Constitution to oversee their government and demand accountability, including the FCB, came out as the winner.
This judicial victory took place in the case brought by the Center for Investigative Journalism (CIJ) against the FCB. It is overseen by federal Judge Jay A. García Gregory, who at the end of last week, issued an order in favor of the CIJ requiring the Board to deliver a series of documents.
For almost a year — during which the Board had already been defeated in its attempt to have the CIJ legal action be considered within Puerto Rico’s bankruptcy case under Title III of PROMESA — the CIJ has been fighting in court to obtain access to nine different reports that should be submitted weekly, monthly or quarterly by the government to the Board.
In addition, the lawsuit seeks documents, reports, letters, emails and any other information or material exchanged between the Board and both the local and federal governments.
The CIJ is also requiring the Board members’ financial reports before they were appointed to said entity.
What does García Gregory’s decision establish?
In general, García Gregory’s decision simply establishes that the Board must abide by the letter of PROMESA and that it can’t add itself powers that aren’t in the law nor can it take advantage of its voids to come up with faculties or limitations.
Specifically, the FCB argued that it is immune from being sued for access to information and that it doesn’t have to comply with Puerto Rico law, which grants a constitutional right to such access.
“Congress giveth, Congress taketh away,” states the federal judge in the opinion’s first line, initiating his argument that establishes:
a) PROMESA says that the Board is an entity within the government of Puerto Rico, not federal, and that claims against the Board are to be filed in the Federal District Court for Puerto Rico. Therefore, there is no doubt that the Board can be sued — that is, it lacks sovereign immunity — and that the appropriate forum to do so is the federal court.
b) PROMESA doesn’t state that no Puerto Rico law applies to the Board. On the contrary, the Board discharges its responsibility under PROMESA using both federal and local laws, as long as they aren’t incompatible. It is not true that the Board can disregard and be immune to Puerto Rico law in its function under PROMESA.
c) Being subject to Puerto Rico’s constitutional right of access to information doesn’t prevent the Board from discharging its responsibilities under PROMESA, nor obstructs the law’s purposes. In fact, it helps the board discharge its responsibility because PROMESA’s record is full of references to lack of transparency as the cause of Puerto Rico’s economic problems, while no part of the federal law or its congressional record mentions that access to information rights won’t apply to the Board.
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) There must be appropriate justification to deny access to information; denials cannot be arbitrary or capricious.
Why is it important?
The reaffirmation that a Puerto Rican constitutional right doesn’t yield to a congressional law can’t be taken lightly, even more so when before a congressional law designed to create an entity with powers over all the constitutional branches of the Puerto Rico government. The FCB can act above these other government powers as Congress intended, yet it is not immune from the obligation to be transparent and accountable to the people of Puerto Rico.
The federal court’s recognition of the right of access to information under the Constitution of Puerto Rico can’t go unnoticed in the local Supreme Court, whose majority of judges has so far been subject to PROMESA without any questioning, for instance, in the stay of all lawsuits against the State by virtue of the bankruptcy process. Beyond that, the only occasion in which Puerto Rico’s Supreme Court considered a controversy over the delivery of documents related to the fiscal plans, it saw an opportunity to introduce new exceptions to the access to information, granting new weapons to governmental confidentiality. With this federal court decision, it is evident that the local Supreme Court has surrendered its authority to PROMESA and has been accomplice of the government against the people’s right to know.
García Gregory’s decision must be put together with that of Judge Laura Taylor Swain — who presides over Puerto Rico’s bankruptcy — to integrate into that process a decision that originated in the commonwealth’s Court of First Instance and in which, applying a Puerto Rican constitutional right, Judge Lauracelis Roques Arroyo ordered that the Gov. Ricardo Rosselló Nevares administration had to deliver documents requested by Sen. Eduardo Bhatia related to the island’s fiscal plans prepared by the government and the Board. Also relevant are the victories obtained by the Espacios Abiertos in its requests for documents from the government of Puerto Rico.
Taken together, these decisions constitute what is probably one of the few things that can be established so far in this new scenario of bankruptcy and the FCB: the people of Puerto Rico have the right to know what is being done in a process in which its social, economic and political future is played out.
Two urgent questions remain: Will the Board appeal this order, risking another defeat that limits its scope? How long will the government of Puerto Rico insist on opacity and lack of accountability in light of these defeats?
* The author is a co-founder of the CIJ and leads its Transparency Program. The legal team of the CIJ in the federal lawsuit are attorneys Judith Berkan and Steven Lausell, of the Legal Clinic of the Interamerican University School of Law. The legal team also includes attorneys Annette Martínez, Luis José Torres, Rafael Rodríguez and Osvaldo Burgos, as well as students of the legal clinic.