Propst unhappy with administration’s response to Open Government Act request

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THE governor’s office has responded to the Open Government Act request by the House minority bloc for information relating to the Imperial Pacific International contribution to the Community Benefit Fund, but “redacted some details and withheld several records,” House Minority Leader Edwin Propst said.

In his letter to Propst and the members of the House minority bloc, the governor’s legal counsel, Gilbert Birnbrich, outlined his response based on what information can be provided under the Open Government Act or OGA, which of the information can be redacted and which can be withheld.

Ed Propst

The minority bloc members made their OGA request on Feb. 28, asking for access to records related to the Community Benefit Fund, which IPI, the lone casino operator, is required by the casino license agreement to contribute in return for the exclusivity of the casino license. According to the agreement, IPI must distribute monies from the Community Benefit Fund in consultation with the governor’s office to support programs such as education, healthcare, retirement benefits, and infrastructure.

In his response, Birnbrich told the minority bloc that the OGA allows the responding agency to withhold public records or redact information from those public records. Birnbrich, citing the law, said when doing so, the responding agency must identify the document, the exemption relied on, and provide a brief explanation of why the cited exemption applies.

The governor’s office redacted information and records from a number of email chains between government officials and IPI with corresponding reasons.

These include the email chain of Special Assistant for Military Affairs Glenna Reyes to some individuals on Tinian, and the emails of then-IPI legal counsel, Philip Tydingco to Birnbrich himself regarding “community benefit SOP.”

Right of privacy

Birnbrich said the redactions were made on these emails pursuant to the right of privacy guaranteed by the CNMI Constitution.

Some information in the communication between then-IPI Chief Financial Officer Ed Chen and Tydingco were also redacted, Birnbrich said, because attorney-client privilege requires so.

He said these communications were “inadvertently disclosed to Gilbert Birnbrich, legal counsel to the governor, in a forwarded email thread.”

He said only the portions of the email chain containing the disclosure have been redacted.

Also redacted was a portion of an email chain between Tydingco and Birnbrich regarding “Fw: Bank of Saipan Confirmation: US$12MM Received.”

Birnbrich said personal identifiers relating to the bank account numbers have been redacted pursuant to the right of privacy guaranteed by the CNMI Constitution.

In addition, the governor’s office withheld from disclosure an email with attachment from Commonwealth Casino Commission legal counsel Mike Ernest regarding the Community Benefit Fund because it constitutes “lawyer’s work product and lawyer opinions in which opinions are expressed.”

The OGA, Birnbrich said, authorizes withholding of this email.

Also the memorandum on “Community Fund Suggested Distribution” was withheld, Birnbrich said, because the OGA’s “Section 9918(a)(7) authorizes the withholding of drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed or policies [are] formulated or recommended.”

Birnbrich said the OGA also allows the withholding of preliminary drafts and attorney work product contained in the email from him to Matt Deleon Guerrero, who was then an assistant to the governor, regarding “a dispute and the community benefit program.”

Attorney-client privilege

Furthermore, attorney-client privilege authorizes the withholding of the email and attachment from Birnbrich and Deleon Guerrero regarding the draft language of a letter to be sent to IPI regarding “a dispute and the community benefit program.”

Attorney-client privilege, Birnbrich said, also authorizes the withholding of the email attachment from Ernest regarding the Community Benefit Fund and actions to be taken under regulations.

This email, he said, was sent to the counsel for the governor “in the course of client communications seeking legal counsel, and is therefore protected by attorney-client privilege.”

The House minority bloc was provided copies of the email chains between Reyes to certain individuals regarding community benefit project proposals like the Rota Mangkhut relief, a mobile slaughterhouse on Tinian, as well as an oxygen generator, steam sterilizers, and mobile x-ray for the Commonwealth Healthcare Corp.


Asked for comment, Propst said he and the rest of the minority bloc believe that transparency is the key to good government.

The bottom line, he added, is that the Commonwealth should have the $38 million in community benefit by now. But the administration says, “The economy now is not good,” Propst added.

The failure of IPI to contribute to the Community Benefit Fund, Propst said, happened way before the Covid-19 pandemic.

Saying that the governor has the authority over the Community Chest Fund and the license agreement, Propst said the main point in their OGA request is to find out if “they have it or not” referring to the “unpaid Community Benefit Fund.”

He said “It should be alarming to everyone that IPI obviously doesn’t have enough cash flow to pay their power bill. So the question now is will they still be able to pay the next license fee?”

Propst added, “I don’t know why the administration is so silent about the Community Benefit Fund when the governor has the authority over it as clarified by the casino commission. It is disappointing.”

58 documents

Asked for comment, Press Secretary Kevin Bautista issued the following statement on Thursday:

“First of all, the governor's office gave all documentation related to the Community Benefit Fund in compliance with the Open Government Act request. This was a total of 58 documents addressing the OGA request.

“Secondly, all redactions made by our legal counsel were lawfully consistent with the Open Government Act to protect personal identifiers such as individual bank accounts, personal telephone numbers, and attorney-client privileged information. Section 9918(a)(7) of the Open Government Act authorizes the withholding of preliminary drafts and attorney work products between the governor's office and IPI. The withheld emails and draft letters are exempt from the OGA because they are part of a ‘preliminary which opinions are expressed or policies formulated or recommended.’ The draft also constitutes ‘lawyer's work product and lawyer legal opinions in which opinions are expressed.’ This is in compliance with the OGA, which protects private conversations about drafts. Just like with every policy discussion, this protects the free flow of opinions within debate of the disbursement of these funds for community projects. The governor's office has advocated for the funding of projects that directly benefit the community.”

Fiscal options

Finally, Bautista said, “let's be clear: since the beginning of this global economic downturn that has affected our CNMI government revenue, Gov. Ralph DLG Torres and his entire administration have put all fiscal options on the table. When the governor convened the CNMI Fiscal Response Summit in April, there was an open invitation to all members of the Legislature, the judiciary, and community members to solve our fiscal crisis together and in the right way. Among the options discussed during the summit was the Community Benefit Fund to supplement government expenses related to Covid-19. The summit discussions were productive between all participants.”

Time and time again, Bautista said, when real constructive conversations are open for everyone to participate, the minority leader does not show up.

“He was not at the Fiscal Response Summit where sensible solutions to our collective challenges as a Commonwealth were discussed. He instead chooses to be on Facebook, separate from real discussions with elected leaders and our community members. He chooses cynicism over solutions, and that in itself is disappointing in a minority leader.

“We thank the members of the Legislature and judiciary who did show up and participated.

“At the end of the day, this administration remains committed to working with everyone in the Fiscal Response Summit and with the community on solutions. While working on these solutions, we will continue to work hard to protect everyone in the Marianas from Covid-19 through Governor Torres' proactive leadership."

November 2020 pssnewsletter

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