The U.S. Court of Appeals for the First Circuit in Boston accepted the amici curiae brief filed by Espacios Abiertos, the National Freedom of Information Coalition (NFOIC), the Iowa Freedom of Information Council and the Nevada Open Government Coalition in support of the case brought by the Center for Investigative Journalism (CPI) against the Financial Oversight and Management Board for Puerto Rico (FOMB) for access to government information.
FOMB was created by Congress with special powers to enable Puerto Rico to restructure its debt. Since its inception, it has announced many proposed policies, including reducing government pensions—on which many of the island’s poor and elderly rely—by 8.5 percent.
Espacios Abiertos (EA) is a non-profit organization, affiliated with the NFOIC, that advocates for the principles of transparency, accountability, and citizen participation. From the beginning, EA has taken a lead role in investigating FOMB’s conflict-of-interest disclosures, seeking production of materials provided to FOMB, and lobbying to ensure that material reorganization and macroeconomic policies are appropriately translated into Spanish.
“We decided to enter this case to contribute to the defense of access to information, protected as a constitutional right in Puerto Rico. The people of Puerto Rico have the right to know the entire operation and bases for decisions of the FOMB, which will affect present and future generations. The FOMB has a duty to be transparent in all its processes,” a spokesperson for EA said.
The amici brief focuses on FOMB’s claim to Eleventh Amendment immunity from suit. Our brief recounts the long history of Puerto Rico’s right of public access to government information from the conclusion of the Spanish-American War to present, which was enshrined by statute in 1905 and later recognized as a constitutional right. Creating this robust right waived any claim to substantive sovereign immunity Puerto Rico might have in its own courts. FOMB, because it claims to be part of Puerto Rico’s government with the same sovereign immunity, likewise waived substantive immunity from liability in these actions. And Congress, by selecting federal court as the exclusive forum for actions against FOMB, abrogated its forum immunity from suit in federal court. The brief also highlights FOMB’s waiver of immunity through its litigation conduct and the important federalism and fairness principles that would be violated if the suit were dismissed:
“The sovereignty of the people of Puerto Rico is vanquished, not vindicated, by extinguishing a cause of action they created in their constitution to immunize a government they do not elect.”
The matter is Centro de Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt. Bd., No. 21-1301 (1st Cir.).
Read the brief here: