Sunday, October 21, 2018

Judge dismisses Puerto Rico fiscal board request to have lawsuit dismissed over document privilege

By on May 7, 2018

SAN JUAN – U.S. District Court Judge Jay García Gregory has dismissed a Puerto Rico Financial Oversight and Management Board request to dismiss a lawsuit brought by the Center for Investigative Journalism (CPI by its Spanish initials) seeking access to documents under the board’s control.

Judge García dismissed the fiscal board’s argument that under case law it was immune from lawsuits in federal court seeking relief pursuant to Puerto Rico law. The judge also dismissed the board’s assertions that the right to obtain public documents under Puerto Rico law was preempted by Promesa.

In a ruling issued last week, the court “held that pursuant to its plenary powers, Congress waived, or in the alternative abrogated, the Board’s sovereign immunity,” which means it allowed the board to be sued in federal court.

“Congress giveth, Congress taketh away,” the judge said.

Magistrate must clarify which data used for Puerto Rico fiscal plans are privileged

In the ruling, he also stated: “It is evident from Section 106(a) that Congress meant to subject the Board to suits in federal court. Section 106(a) states, in relevant part, that ‘any action against the Oversight Board…shall be brought in a United States district court for the covered territory….’ Congress, therefore, clearly indicated that any action against the Board must be litigated in this Court.”

Judge García also said that Promesa, the law that created the island’s fiscal board, does not preempt Puerto Rico law granting access to public documents under the board’s control.

An artist’s rendering of U.S. District Judge Jay A. Garcia-Gregory (Screen capture of

“Congress could have added language specifically preempting Puerto Rico law on disclosure, but opted not to do so. However, Congress did use clear preemptive language in other sections of PROMESA. For example, PROMESA § 303(3) preempts the Commonwealth government from enacting restructuring laws or issuing ‘unlawful executive orders that alter, amend, or modify the rights of holders of any debt of the territory or territorial instrumentality, or that divert funds from one territorial instrumentality to another or to the territory.’ Similarly, Section 504 preempts Puerto Rico laws or regulations concerning the approval process for critical infrastructure projects. Id. § 504(b), (e). Congress, however, did not include specific preemptive language referring to disclosure of information,” he said.

He added there was no implied preemption.

“Likewise, as the CPI correctly pointed out, “[w]hile PROMESA may be extremely comprehensive with respect to matters such as debt restructuring and access to markets…this is a far cry from preemption on public access to documents,” he said.

CPI v Board Opinion and Order (4 May 2018) (Text)


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