Editor's note: The following are excerpts from a letter written and published by Robert Klitzkie on his "From Bob" blog. The letter was edited for space constraints. The full letter can be found online at http://frombob.blogspot.com/.
The Consolidated Commission on Utilities playing fast and loose with the Open Government Law and tap dancing instead of complying with the Sunshine Law prompted me to send this letter to CCU Chairman Joey Duenas and Commissioners Judith Guthertz, Francis Santos, Michael Limtiaco and Simon Sanchez:
Dear Commissioners Dueñas, Guthertz, Limtiaco, Santos and Sanchez,
Your failure to cause the disclosure of the minutes of your illegal meeting compounds the Nov. 27 wrong. The CCU perpetrated a grave injustice upon the people of Guam in general and ratepayers in particular last Nov. 27. An illegal executive session was held, during which illegal discussions were held resulting in salary increases for (managers) of the two utilities. In addition, the general manager of GPA received a $25,000 bonus and the recording secretary of the CCU a $5,000 bonus in violation Title 4 Guam Code Annotated § 6118.2. Violation of that section makes each member of the CCU in attendance at the Nov. 27 subject to being charged with a misdemeanor.
Given the presence of legal counsel, the blatantly illegal discussion of salary increases and what appears to be a conspiracy to pay illegal bonuses are serious matters which cannot be dismissed as mere inadvertence or excusable neglect. As serious as these matters are, the seriousness is compounded by your apparent adoption of the decision of Bernadette Lou Sablan, the CCU board secretary, when she denied The Guam Daily Post journalist Kevin Kerrigan's valid request for the minutes of the Nov. 27 meeting.
Sunshine Law requests are matters of great importance as exemplified by Title 5 of Guam Code Annotated Chapter 10 § 10112, which states a $1,000 fine is levied on the personal funds of any official who violates the law. But the cavalier manner in which Kerrigan's request was sloughed off borders on scandalous.
Sablan excused timely compliance with Kerrigan's request by what "protocol dictates," as though CCU protocol trumps statute. Sablan's denial spoke for all of you when she said:
"... It is the position of the Consolidated Commission on Utilities that the electronically recorded minutes of the executive session will not be disclosed pursuant to your FOIA request." Sablan then went on to "rule" on what served the public interest before signing off.
The Sunshine Law, Title 5 of the Guam Code Annotated Chapter 10, requires that "... the Director of an agency shall require all personnel in charge of receiving any incoming mail, electronic mail, faxed documents or other communications to immediately notify the Director or his designee upon receipt of a request for records under this Chapter." § 1015 (a)
Either or both of the utility general managers were responsible for dealing with Kerrigan's request.
"§1015(b) upon receipt of a request for records under this Chapter, the Director of an agency or his designee shall immediately assign the request to be fulfilled or responded to by an employee of the agency.
Nothing in Sablan's letter suggests a delegation of authority from either director. To the contrary, the language of Sablan's letter connotes her absolute authority. In addition to being ultra vires and disrespectful, Sablan's letter is wrong on the law as is the referenced opinion of counsel. Counsel relies on the popular but erroneous myth that there is a "personnel matters" exception to 5 GCA § 10103 (c)'s requirement for disclosure.
"5 GCA § 10103 (c) Except with respect to public records exempt from disclosure by express provisions of the law, each agency, upon a request for a copy of records that reasonably describes an identifiable record or records, shall make the records promptly available to any person ..."
5 GCA § 10108 lists myriad limitations on the right to inspection, none of which reads, "personnel matters." That term, "personnel matters," appears nowhere in the statute, nor does "evaluation."
The word "personnel" occurs four times: 5 GCA §§ 1015 (b), 10108 (b), 10105 (n) (6), none of which are applicable here. Parsing 10 GCA § 10108(c) shows that it can't serve as the basis for advancing the "personnel matters" myth as the ratio decidendi for counsel's conclusion that the minutes, etc. should not be disclosed:
5 GCA § 10108 Except as provided in § 10109 of this Chapter, nothing in this Chapter shall be construed to require disclosure of records that are any of the following: …(c) Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. All information regarding salary, and the name, and worksite mailing address of each employee and public official shall be public record.
Neither Kerrigan's nor my FOIAs seek files of any kind. The minutes of the executive session are presumed to be Sablan's notes as to who said what. The recording and the minutes are obviously not a file.
One would assume that personal information was not discussed in the process of setting salaries. The discussion of employee performance in this context is clearly public, not private, information. .... Even if personal information were discussed in the illegal executive session, its disclosure would be prohibited only if unwarranted. The word unwarranted means "... not having a good reason and therefore annoying or unfair: 2. lacking a good reason; unnecessary." As an example, disclosure of an evaluation and salary increase based upon nepotism would not be unwarranted, even though it implicates marital status or family status. Counsel's attempt to ground his opinion on the "personnel matters" myth ... is at best a red herring and not even arguably sufficient to excuse compliance with GCA § 10103 (c).
The minutes and recording of the illegal executive session of Nov. 27 are not personnel files; these obviously dealt with salary and their disclosure would not constitute an unwarranted invasion of anyone's privacy.
Robert Klitzkie hosts the "Tall Tales" radio program on ThePoint. He is a former senator and former pro tem judge.