Judge rules in DFS, Airport FOIA dispute

1925

Judge Anita Sukola ruled partially in favor of DFS Guam. She also denied GIAA’s motion for summary judgment.

Guam – In the ongoing dispute between DFS Guam and the Guam International Airport Authority, Judge Anita Sukola has issued her decision and order, partially ruling in favor of DFS Guam.

Back in 2015, through the Freedom of Information Act, DFS had sought documents from the airport pertaining to executive session meetings that happened behind closed doors. The airport refused to give up those documents, noting that what was discussed during those meetings were protected by attorney-client privilege.

Executive session meetings remain closed off to the public for a period of six months, after which they become available. In this case, the FOIA documents DFS sought from GIAA were well over six months old.

Judge Sukola agreed that the airport authority violated the Sunshine Act and Open Government Law when it refused to provide documents to DFS Guam.

The dispute between the two agencies relates to a procurement battle in which DFS lost a concession contract at the airport to Lotte Duty Free. DFS has a separate case against Lotte which is also moving along in court. DFS believes Lotte representatives bribed Airport Authority officials in order to win the concession contract.

You can read both press releases from DFS Guam and from GIAA below:

– DFS GUAM PRESS RELEASE –

Tamuning, Guam – June 30, 2017 – On Monday, the Hon. Anita Sukola of the Superior Court of Guam ruled in favor of DFS against the Guam International Airport Authority (“GIAA”) and reaffirmed that government agencies must abide by the laws set forth in the Sunshine Act and the Guam Open Government Law. In so doing, the Court restrained GIAA from flouting its obligations to the public and ratified that no part of Government of Guam is above the law. The Court specifically found that “Defendant [GIAA] violated Section 10103 of the Sunshine Act and Section 8111 of the OGL by failing to disclose public documents [in] response to Plaintiff [DFS]’s July 7, 2015 Sunshine Act request.”

DFS was forced to file its lawsuit to bring GIAA into compliance with the requirements of the Sunshine Act and Guam Open Government Law. DFS’s Sunshine Act request was made in connection with the decision to award the Airport’s duty free concession agreement to Lotte Duty Free Guam. Guam’s Sunshine Act requires Government of Guam agencies to respond to requests for information from members of the public, and the Open Government Law sets forth transparency requirements for board meetings of Government of Guam agencies like GIAA. Judge Sukola found that GIAA violated both of these laws when it denied requests by DFS for transcripts of closed-door meetings held by the GIAA Board of Directors. The contents of these meetings, which were held in private and outside of public scrutiny, had become public with the passage of time by operation of law as all such closed-door sessions do.

In July 2015, DFS made multiple Sunshine Act Requests for transcripts of certain closed-door meetings held by GIAA’s Board of Directors. In its response, GIAA not only refused to produce the documents without any valid basis whatsoever, it refused to even acknowledge the existence of these transcripts. At the same time, GIAA secretly went to another judge of the Guam Superior Court to have these transcripts “re-sealed” even though they already were in the public domain. GIAA made this effort without ever notifying DFS that it had done so and, more egregiously, without notifying the judge that DFS had requested these now-public materials.

In addition, the Court denied GIAA’s motions to dismiss DFS’ claims in their entirety. As a result, the case will now proceed to trial, where DFS is confident that the Court will find additional violations of the Open Government Law and the Sunshine Act. This is now the second time that a judge or arbitrator has found against GIAA and in favor of DFS. In the earlier instance, three arbitrators unanimously found that GIAA wrongfully had seized over $1.8 million dollars of DFS’ money without any basis to do so. A copy of the May 10, 2016 press release with further details of this ruling is attached. Separate from the case before Judge Sukola, DFS’s case challenging the wrongful award of the duty free concession contract procurement before the Hon. Arthur Barcinas is still ongoing, and DFS remains confident that it will prevail in that case.

 

– GIAA PRESS RELEASE –

July 3, 2017 – Tamuning, Guam. As GIAA has said from the beginning, the Sunshine Act lawsuit is a transparent attempt by DFS to seize an unfair advantage in the separate litigation over the Specialty Retail contract, which DFS lost in a fair competition. The subject of the Superior Court’s order is transcripts from “executive sessions” of GIAA’s Board of Directors discussing GIAA’s litigation strategy. Those transcripts are currently under seal by another judge of the  Superior Court, and the recent order does not change that fact. The order itself states that DFS is not entitled to the transcripts until the sealing orders are lifted.

GIAA continues to believe that its communications with its attorneys about ongoing litigation are confidential and should be not made available to DFS, just as DFS’s communications with its lawyers about the same litigation are not available to GIAA. GIAA will continue to oppose DFS’s and their attorneys’ efforts to force GIAA to disclose its attorney-client communications based on a novel reading of the Sunshine Act, a result that would limit government agencies’ ability to obtain legal advice after they have been sued. That result would be a terrible one for Guam.

Further, DFS’s continued assertion of “secret meetings” remains categorically false and is not supported by the Court’s order. DFS’s defamatory public statements are consistent with the recently uncovered internal documents at DFS, which are now in the public record. These documents reveal that DFS long-ago developed a plan to smear GIAA with fabricated corruption accusations as part of a larger plot to retaliate against our entire island in the event DFS lost the competition for the Specialty Retail concession contract. But DFS lost that contract in a fair and open process because it submitted an inferior proposal – DFS came in third out of four. After DFS had operated at the Airport for four decades with no competition, its own documents show that it was desperate to preserve its lucrative operation at GIAA, which was enormously profitable because DFS had been underpaying in Guam. GIAA’s current concession contract is far superior to any previous DFS contract or DFS’s proposal and had yielded tremendous benefit to the Airport, the traveling public and the people of Guam.