AGO: Shhh, don’t tell
Tuesday, 29 December 2009 04:24
by Jennifer Naylor Gesick | Variety News Staff
AGO upholds agencies’ confidentiality agreement with JGPO
LOCAL government officials were not required to tell lawmakers anything they had learned about the Department of Defense’s plans for the massive military buildup on the island when summoned to testify before the military buildup oversight committee hearing on Oct. 15, according to attorney general Alicia Limtiaco.
In a legal opinion released yesterday, Limtiaco took note of the nondisclosure agreement that local officials signed with the Joint Guam Program Office.
Limtiaco said the communications between the agencies and JGPO were “predecisional” and protected from the Freedom of Information Act.
“The terms of the nondisclosure agreement evidence the expectations of the federal government that the document and discussion surrounding it are deemed sensitive and confidential, and therefore protected by the deliberative process privilege and executive privilege,” Limtiaco said.
Limtiaco’s opinion, released by the governor’s office yesterday, was sought by lawmakers who asked whether local statute mandated or exempted government officials from testifying about what was contained in the military impact report.
Heads and representatives from the Bureau of Statistics and Planning, Guam Environmental Protection Agency, Department of Agriculture and Department of Public Works were required to sign a nondisclosure agreement as a precondition and prior to being allowed to provide feedback to JGPO about the impact study.
Only a few of the individuals summoned to testify at the oversight hearing conducted by Sen. Judi Guthertz’ committee actually showed up.
No one would talk about anything they gleaned from the study causing lawmakers to threaten them with contempt.
But Limtiaco described the procedures on legislative contempt as “inorganic.”
Limtiaco states it is "constitutionally suspect, not because of the breadth of the legislature's investigatory authority...but because of the vagueness of the process and procedures outlined in the law governing the legislature's exercise of its contempt powers to enforce compliance."
She makes three points on this matter. First, that the statue is unclear as to what due process is afforded a person who has been subpoenaed and declines to comply on the basis of a recognized privilege.
Second, the law provides that a witness is entitled to “explain and defend” the statute governing governmental privileges.
Third, the law limits the scope of judicial review by the courts on the merits of a finding of legislative contempt, "relegating the courts to merely enforcing a finding of contempt." ”It is our opinion the deliberative process and executive privileges, rooted in the doctrine of separation of powers established in the Organic Act, are due to be protected from Legislative inquiry," Limtiaco stated.
"Finally, the statue governing the legislature's contempt procedures that appear to bar even the mention of governmental privileges and separation of powers as an argument before the legislature in defense of subpoena, and the exclusion of even the possibility of judicial review on the merits of a finding of legislative contempt is simply unauthorized in our constitutional system of laws,” she added,