The National Freedom of Information Coalition’s Puerto Rico affiliate, Espacios Abiertos, filed an amici brief in a public records appeal in the United States Court of Appeals for the First Circuit.
The lawsuit was brought by the Puerto Rico-based journalism nonprofit Centro de Periodismo Investigativo against Puerto Rico’s Financial Oversight and Management Board.
The brief, prepared by Benedict Law Group PLLC of New York, focuses on whether the Financial Oversight and Management Board, created by Congress in 2016 to facilitate Puerto Rico’s bankruptcy restructuring, has sovereign immunity from public records claims under Puerto Rico’s constitution and statutes in federal court.
The brief argues that the Board waived its immunity. The brief also traces the important history of the right of public access from the conclusion of the Spanish-American War to present.
“Our brief recounts the long history of Puerto Rico’s right of public access to government information, which was enshrined by statute in 1905 and later recognized as a constitutional right,” according to a statement from Benedict Law Group. “Creating this robust right waived any claim to substantive sovereign immunity Puerto Rico might have in its own courts.
“The Board, 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 the Board, abrogated its forum immunity from suit in federal court. The amici brief also highlights the Board’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.’”