The Oversight Board has to answer to the people

GFR Media and its media outlets El Nuevo Día and Primera Hora, have always defended the fundamental right to access and examine public information, as established in Puerto Rico Constitution Article II - Bill of Rights, Section 4, supported by ample jurisprudence.

We have presented our position as friends of the court (amicus curiae) at the U.S. Supreme Court in full support of the fair and reasonable claim filed by the Center of Investigative Journalism (CPI) for the Fiscal Oversight Board to disclose the documents on the fiscal situation of Puerto Rico. This information includes communications between the members of that fiscal entity, the contracts it has signed, internal meetings records, and financial statements filed by the Board members, among others.

We agree with federal district and circuit courts which, for the public interest and according to the constitutional framework, have decided in favor of the CPI’s claim.

The federal District Court for the District of Puerto Rico, Judge Jay García-Gregory, rejected the Board’s attempt to refuse to hand over documents that are essential for the people of Puerto Rico to be informed. He determined that when Congress passed PROMESA, it eliminated sovereign immunity for the Board and that the statute neither removed nor invalidated the right to access public information established in the Bill of Rights of the Puerto Rico Constitution.

A majority of the First Circuit Boston Court of Appeals ruled against the appeal filed by the fiscal entity, which went to the Supreme Court of the United States. The U.S. highest court accepted the writ of certiorari and agreed to hear the case. The oral hearing is scheduled for Wednesday, January 11, 2023.

The Board is clearly mistaken when it seeks to appeal to laws that do not apply. It claims that as an “entity” within the Puerto Rican government, it should enjoy, as is the case with the island´s government, “sovereign immunity” under the Eleventh Amendment of the Constitution of the United States. Then, according to the Board, no one can file lawsuits against the entity in federal court without its consent.

The Supreme Court has determined that the Board is an “entity within the territorial government” of Puerto Rico. Therefore, the fiscal entity is subject to the Puerto Rican Constitution regarding access to public information. The constitutional mandate on the Bill of Rights is not against the strictly fiscal role of the Board.

Puerto Rico Constitution Article II - Bill of Rights, Section 4 provides: No law shall be passed abridging the freedom of speech or of the press or the right of the people to assemble in peaceful assembly and to petition the government for a redress of grievances.

In 1960, the Puerto Rican Supreme Court in Dávila v. General Supervisor of Elections determined that citizens “of self-governing society must possess the legal right to examine and investigate the conduct of its affairs, subject only to those limitations imposed by the most urgent public necessity. This right must be elevated to a position of highest sanctity if it is to constitute an effective bulwark against unresponsive leadership”.

The same court repeated this reasoning in the landmark case Cerro Maravilla Soto v. Secretary of Justice murders (1982), in which the Court elevated to constitutional status the right to access and examine public records. This is a fundamental right, as our Supreme Court stated in Bhatia Gautier v. Governor (2017).

The right to information has clear historical precedent, including Presidents George Washington, John Adams, and Thomas Jefferson handing over their documents. Similarly, the Supreme Court of the United States stopped cover-up attempts by Presidents Richard Nixon and Donald Trump. Each of

the 50 states and the District of Columbia have laws guaranteeing access to information, and at the national level, the United States adopted the Freedom of Information Act (FOIA). President Joe Biden, Vice President Kamala Harris, and Senate Leader Charles Schumer must hand over their documents and information.

Then, it seems strange that the Board, a territorial entity according to the federal Supreme Court, claims to enjoy more privileges and immunity than the president of the United States.

An entity with the powers of the Board cannot be allowed to avoid accountability. Not only the press enjoys the right to information, but the people, who pay for the Board.

We stand in solidarity with the CPI and other reputable media and civil rights organizations that, in support of the right to access to information, have joined the amicus curiae, such as Public Citizen, ASPPRO, Reporters’ Committee for Freedom of the Press, Latino Justice - Puerto Rico Legal Defense Fund, law professors, Espacios Abiertos, Clemente Properties, the House Speaker and the Institute for Energy Economics & Financial Analysis.

The right to information is enshrined in our Constitution. The Board is part of the government. It cannot operate with the people’s money while ignoring their rights. The U.S. Supreme Court building is a historic stone building emblazoned with the motto: “Equal Justice Under Law”. That applies to everyone, including the Board.

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