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Special committee looks into redacted documents

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DEPARTMENT of Finance-Director of Administrative Services Margaret Bertha Torres and legal counsel to the governor Gilbert Birnbrich appeared before the House Special Committee on Fiscal Review of Executive Expenditures on Thursday.

The special committee is looking into the redaction of certain information regarding expenditures made by the governor, mainly the redaction of the last four digits of credit card numbers that the committee said is essential to its investigation.

Torres said that she had received an Open Government Act or OGA request from an unnamed female private citizen on June 17, 2019 via email.

She said she was unsure whether or not she was at liberty to disclose the name of the private citizen who had submitted the OGA request.

She said she would defer to Secretary of Finance David Atalig on that particular question.

The OGA request made by the private citizen specifically asked for  documents such as travel documents for Governor Torres and first lady Diann Torres, as well as receipts, reimbursements, and trip reports pertaining to the governor.

Regarding the copies of the documents given to the private citizen, Director Torres stated that the documents were not redacted, and were paid for by the private citizen at a rate of 50 cents per page on July 9, 2019, amounting to a total of $913.50, or 1,827 pages.

She believes that it was the private citizen who released the documents to Guam’s Kandit News Group website.

 

Office of the Governor legal counsel Gilbert Birnbrich, right, is sworn in prior to testifying before the House Special Committee on Fiscal Review of Executive Expenditures on Thursday in the House chamber. Photo by K-Andrea Evarose S. Limol

These documents have since then been widely circulated on social media.

Director Torres said there was nothing wrong with a private citizen obtaining the documents and sharing it on social media, but it was wrong  to not redact personal information on those documents before releasing them to a private citizen.

She said after the documents were posted on Kandit, she received a phone call from the governor’s legal counsel, Gilbert Birnbrich, advising her that all of Governor Torres’ personal information, including Social Security numbers, bank account numbers, and credit card numbers, should be redacted.

She said she then instructed her staff to redact all such information, including the last four digits of credit card numbers, noting that she was unaware of the existing redaction laws provided under 1 CMC § 9918.

She said she was unaware whether or not the CNMI government itself has credit cards, and whether or not the Department of Finance keeps a list of credit card numbers or the names that have been used for the governor’s reimbursements.

The director stated that she and her staff proceeded to redact personal information, including those on the original copies, because they had received requests for the same documents from the Office of the Public Auditor, the House minority bloc, and the Legislature.

She reiterated that the documents provided to the private citizen were not redacted.

She said as her office discovered more of the documents requested by lawmakers, her office continued to redact all personal information, even after the lawmakers requested that the information not be redacted.

She said apart from two reports that have been lost during a previous natural disaster, all documents have now been provided to the lawmakers following the issuance of a subpoena to the Department of Finance.

Director Torres said that the only legal counsel her office has is Dustin Rollins who has been assigned by the Office of the Attorney General to represent the Department of Finance-Division of Revenue and Taxation.

She said she did not seek legal counsel on how to handle the legislative requests for records.

Regarding the delay in turning over the documents requested by the House minority bloc, the director said that it was difficult to gather all of the documents, especially considering that some of the documents were destroyed during previous natural disasters.

She noted that the documents requested by the House minority bloc go as far back as 2014.

But no one had pressured her to delay the release of the documents, Director Torres said, adding that she would be able to provide the special committee with certain master reports from the general ledger.

Personal information

For his part, the governor’s legal counsel, Gilbert Birnbrich, said that he has some recollection of the phone conversation that he had with Director Torres regarding the governor’s personal information that was publicly released.

He said someone at the Office of the Governor — whom he has no specific recollection of — had alerted him that the governor’s personal information had been publicized, and so, in his capacity as legal counsel to the governor, he contacted Director Torres.

He said the governor did not instruct him to directly reach out to Director Torres, adding that the governor also did not instruct him to direct the department to redact and physically alter the records.

The legal counsel said there was no written record of the phone call between himself and Director Torres, and added that the intent of the call was to protect the interest of the Office of the Governor and to ensure that executive branch officials follow the law.

He said the Department of Finance is not his client, and that he does not typically advise agencies or government employees outside of the governor’s office who are not his clients.

However, he said that sometimes he does give “friendly advice” to other executive branch officials.

He said it is the Office of the Attorney General that is responsible for providing legal counsel to the Department of Finance, and so any legal advice given by the AG’s office would override his legal advice to the department.

He also said that he did not reach out to the legal counsel responsible for providing legal advice to the department regarding the release of the unredacted records pertaining to executive expenditures, nor does he have any recollection of advising Director Torres to reach out to her assigned legal counsel.

A former AG, Birnbrich said that in his experience, the AG’s office is supposed to be directly involved in helping agencies with Open Government Act requests, and so he assumed that the AG’s office would provide legal guidance on such requests made to the Department of Finance.

He said he did not advise Director Torres to redact and physically alter the original documents.

The best and responsible practice, he said, would be to have the last four digits unredacted. Based on his recollection, he said he did not advise Director Torres to not redact the last four digits of the credit card numbers.

Regarding a letter from the governor dated Aug. 12, 2020 on the subject of assertion of chief executive testimonial privileges, Birnbrich said he believes that the line of questioning made by the lawmakers on Thursday did not warrant asserting any such privilege.

If there was a need for him to assert such privilege, he said, then he would have said something along the lines of, “I decline to answer on the basis of attorney-client privilege” during the line of questioning.

He said that “friendly advice” is not referenced at all in the model rules that apply to attorneys, and he also acknowledged that the interests of the Department of Finance and the Office of the Governor may not always be the same.

 

 

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