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  • Writer's pictureThe San Juan Daily Star

Appeals court upholds local media group’s info access claim against fiscal board

The Center for Investigative Reporting had sued the Financial Oversight and Management Board in 2017 to obtain documents on the fiscal situation of board members, along with intra-board communications, contracts and meeting minutes.

By The Star Staff

A local non-profit media organization has prevailed over the Financial Oversight and Management Board’s attempts to avoid access to its documents, according to a divided U.S. First Circuit Court of Appeals ruling published Wednesday.

The Center for Investigative Reporting (CPI by its Spanish initials) had sued the oversight board in 2017 to obtain documents on the fiscal situation, communications among board members, contracts, meeting minutes, and financial disclosure forms for the board’s members. CPI, which had requested the documents directly from the board to no avail, alleged that the board, by ignoring the requests or providing less than complete responses to CPI’s requests, was violating the local Constitution.

The oversight board resisted CPI’s reliance on Puerto Rico’s general constitutional right to access public documents to obtain certain information.

After CPI turned to the federal district court for assistance, the oversight board asked the district court to dismiss the litigation, arguing that it was immune from lawsuits pursuant to both the Eleventh Amendment of the U.S. Constitution and the Puerto Rico Oversight, Management and Economic Stability Act (PROMESA). The board argued that PROMESA preempts the disclosure obligations within Puerto Rico Constitution Article II, section 4, the provision used by the CPI to seek documents.

The district court disagreed with the oversight board, allowing CPI’s quest to proceed. The board asked the Boston court for an interlocutory review, which the CPI opposed, contending that the Boston court had no jurisdiction because the lower court’s decision was not final.

“After careful consideration of the parties’ arguments, we affirm with respect to constitutional immunity and decline to exercise pendent appellate jurisdiction over the remaining issues,” the appeals court said.

The Boston appeals court dismissed the oversight board’s allegations of immunity claims, arguing that the board can be sued.

“We agree with the district court that, by including (Section) 106, Congress unequivocally stated its intention that the Board could be sued for ‘any action . . . arising out of [PROMESA],’ but only in federal court,” the appeals court said. “Congress was unmistakably clear that it had contemplated remedies for constitutional violations and that injunctive or declaratory relief against the Board may be granted.”

Judge Sandra Lynch disagreed.

“In my view it is clear that the Board is protected by Eleventh Amendment immunity under numerous doctrines and Eleventh Amendment principles,” she wrote. “… Further, the provisions of PROMESA on which the majority relies, which provide remedies and instructions as to the exercise of jurisdiction over federal claims, do not support the majority’s conclusion that Congress intended to abrogate the Board’s Eleventh Amendment immunity. In fact, the other provisions of PROMESA reinforce that Congress did not intend to abrogate immunity.”

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