GIAA still faces contempt threat

DISPUTE: The A.B. Won Pat International Airport is shown in this undated file photo. The A.B. Won Pat Guam International Airport Authority refuses to release the transcript of a closed-door executive session held in 2018. Post file photo

The Supreme Court of Guam has ruled in favor of the A.B. Won Pat Guam International Airport Authority's bid to keep confidential the transcript of a closed-door meeting held by the agency's board.

DFS Guam sought the release of that transcript in its ongoing legal battle with GIAA over the lucrative duty-free concession contract, which was awarded to rival Lotte Duty Free Guam.

DFS attorney Joyce Tang previously has stated that at an April 26, 2018, executive session the airport board "discussed in secret GIAA's agreement with Lotte Duty Free Guam," which she said "resulted in an unnecessary giveaway of several million dollars to Lotte to the substantial detriment of the people of Guam."

GIAA has denied DFS' requests for the transcript.

Airport attorney Genevieve Rapadas has argued that the April 26 executive session transcript "is not subject to the Sunshine Act since it involves privileged conversations between the board and its legal counsel regarding the pending litigation with DFS that is currently the subject of an appeal before the Supreme Court."

In its decision, the Supreme Court agreed with GIAA's position that "the Sunshine Act permits GIAA to withhold the executive session transcripts from disclosure until the litigation between GIAA and DFS has concluded."

Conflicting laws?

Justices concluded that the Open Government Law "does not grant the Superior Court authority to seal executive session transcripts after the statutory six-month sealing period has lapsed without a government agency seeking a further sealing order."

However, the "executive session transcripts are subject to the Sunshine Act." 

They rejected DFS' argument that the two laws are in conflict, ruling that "the (Open Government Law) and the Sunshine Act are not in irreconcilable conflict."

"There is nothing inherently inconsistent" with the two laws, the decision states. Each measure "works harmoniously with the other to protect privileged communications of government agencies, while attempting to balance properly these protections with the public's right to know."

The Supreme Court ruling goes on to state: "The OGL and the Sunshine Act work hand-in-hand to permit the temporary withholding of attorney-client communications between a government agency and its counsel. We find that the trial court erred; the Sunshine Act permits GIAA to temporarily withhold executive session transcripts if they 'pertain to pending litigation' and until such time as that litigation concludes."

The opinion was authored by Justice Philip Carbullido, and joined by Chief Justice Katherine Maraman and Justice Pro Tempore Joseph Camacho.

Earlier court rulings

The decision supports the Feb. 2, 2019, ruling from Judge Michael Bordallo of the Superior Court of Guam, who denied DFS' request for the transcript, concluding that "the matters discussed ... are associated with ongoing litigation. ... Unsealing the transcripts now would prejudice GIAA and would violate Guam law."

Bordallo ordered that the transcripts remain sealed, at least temporarily, pending the outcome of ongoing litigation between DFS and GIAA.

Superior Court Judge Anita Sukola came to the opposite conclusion in a May 14 decision in which she rejected the airport authority's position, concluding that GIAA made a "material misrepresentation to the court" by claiming the agency was in compliance with the Open Government Law when it was not.

She accused GIAA of acting "in bad faith" in order to "achieve its goal of keeping the transcript sealed."

She ruled that "the appropriate sanction for GIAA's conduct is the production of the April 26 transcript" sought by DFS and she ordered the airport authority "to appear and show cause why it should not be held in contempt."