Fisher v. AG

• Court: Superior Court of Guam
• Decided: August 14, 2020
• Docket: SP0080-20
• Status: Unknown

Opinion

FiLED SUPERIOR COURT OF GUAM 2020 A’JG j14 AH II: 5% CLERK OF 9OURT BY:______

IN THE SUPERIOR COURT OF GUAM

THOMAS J. FISHER Superior Court Case No. SPOO8O-20

Petitioner, DECISION AND ORDER V.

LEEVN CAMACHO ATTORNEY GENERAL OF GUAM

Respondent.

Petitioner Thomas J. Fisher asks the Court to mandate the Office of the Attorney General

(AG) to respond to his Sunshine Act requests. Having considered the parties’ arguments and

applicable law, the Court ORDERS that the AG disclose any and all documents responsive to

Fisher’s request for communications among and between employees of the AG concerning the

payment of its employees. The Court further ORDERS the Attorney General to produce an

affidavit and index supporting its claims of privilege as to Fisher’s request for communications

with the Office of the Governor, deliberative process privilege, and attorney-work product.

FACTUAL AND PROCEDURAL BACKGROUND

Fisher’s Sunshine Act request sought two items: “[a]ll communications between the

office of the Attorney General of Guam and the office of the Governor from March 2020 to date

of response in whatsoever form, related to payment of employees of the Government of Guam”

and “[ajil communications among and between employees of the office of the Attorney General

relating to or concerning payment of Government of Guam employees and/or made on social SPOO8O-20 DECISION AND ORDER Page 2

media platforms including but not limited to ‘WhatsApp,’ ‘facebook’ and similar platforms.” V.

Pet., Att. A (June 16, 2020). The AG responded by largely rejecting the request for several

reasons: the deliberative process privilege, the attorney work-product doctrine, the attorney-

client communications privilege, or the pending litigation exception. Id., Att. B. The AG,

however, did disclose several pages of “WhatsApp Chat Excerpts.” Id.

The pending litigation references Topasiza & DOES 1-100 v. Govt. of Guam et. aL,

Superior Court Case No. SP0064-20, which concerns employee payment increases in light of the

public health emergency. Governor Lourdes A. Leon Guerrero declared the public health

emergency due to the COVID-19 pandemic on March 14, 2020, and many Government of Guam

agencies closed or operated in a limited capacity in response. Exec. Order 2020-03 (2020); Exec.

Order 2020-05. In response to a senator’s request, the AG subsequently issued an opinion

denying employee payment increases to Government of Guam employees who worked in a

limited capacity during the pandemic. Guam Att’y Gen. Op. No. LEG 20-0156

APPLICABILITY OF DOUBLE PAY PROVISION IN DOA PERSONNEL RULES AND

REGULATIONS RULE 8.406 TO COVD-19 PUBLIC HEALTH EMERGENCY (May 14,

2020). Employees who were denied double pay sued, but the court denied the petition. Dec. and

Order re Petition for Writ of Mandamus, Super. Ct. Case No. SP0064-20 (June 4, 2020). The AG

represents the Governor, among other defendants, in that litigation. That matter is now on

appeal.

II. LAW AND DISCUSSION

A. Standard for a Sunshine Act Writ

The Sunshine Act allows a person seeking to enforce his right to inspect or to receive a

copy of any public record to “institute proceedings for injunctive or declarative relief or writ of SPOO8O-20 DECISION AND ORDER Page 3

mandate.” 5 GCA § 10111(b). The Act further specifies that “[t]he burden is on the agency to

sustain its action. All records shall be presumed public and the burden of establishing that a

document or record is private shall be upon the agency or person claiming that the document [or]

record should not be disclosed or inspected.” 5 GCA § 10111(c).

While the AG advocates that the Court examine whether Fisher has demonstrated there is

no plain or adequate remedy or that the AG failed in a clear ministerial duty to perform and act

specifically required by law, the Sunshine Act places the burden on the AG to overcome the

presumption of public disclosure. This Court follows the plain language of section 10 111(c) and

will proceed to determine if the AG has met its burden.

B. Reasonableness of Requests

The AG first objects to Fisher’s request due to unreasonableness. Response at 3 (July 20,

2020). Section 10103(c) of the Sunshine Act expressly requires that a request must “reasonably

describe[] an identifiable record or records.”

Based on the case cited by the AG--Tereshchttck v. Bureau of Prisons--the burden of

demonstrating overbreadth is substantial. 67 F. Supp. 3d 441, 455 (D.D.C. 2014), affd sub nom.

Tereshchtck V. Bureau of Prisons, Dir., 2015 WL 4072055 (D.C. Cir. June 29, 2015). “When the

reasonableness of search and production is questioned, the agency has the burden to produce a

sufficient explanation as to why it would be unreasonably burdensome.” Id.

The AG has not demonstrated that Fisher made an unreasonable request. Instead, as the

AG admits, they have already searched, collected, and examined a voluminous amount of

records and narrowed the relevant records to approximately 220 pages. The Court finds Fisher’s

request to be reasonable. SPOO8O-20 DECISION AND ORDER Page 4

C. Protected Documents

1. The attorney-client privilege and attorney work-product doctrine likely shield communications between the AG and the Governor from disclosure.

In response to Fisher’s first request for “[ajil communications between the office of the

Attorney General of Guam and the office of the Governor from March 2020 to date of response

in whatsoever form, related to payment of employees of the Government of Guam,” the AG

refused to disclose any relevant documents. V. Pet., Att. A. The AG claims that the attorney-

client privilege applies. Response at 10.

The attorney-client privilege is one of the oldest recognized privileges for confidential

communications. Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998). It seeks “to

encourage ‘full and frank communication between attorneys and their clients and thereby

promote broader public interests in the observance of law and the administration of justice.” Id.

(quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). However, it only attaches to

confidential communications by the client to his attorney, and “protects only those disclosures

necessary to obtain informed legal advice which might not have been made absent the privilege.”

Fisher v. United States, 425 U.S. 391, 403 (1976). The privilege extends to situations in which

an attorney is a government lawyer and the client a government entity. See, e.g., In Re: A Witness

Before the Special Grand Jury, 288 F.3d 289, 291 (7th Cir. 2002) (“[B]oth parties here concede

that, at least in the civil and regulatory context, the government is entitled to the same attorney-

client privilege as any other client.”); In re Lindsey, 158 F.3d 1263, 1268 (D.C.Cir. 1998)

(“Courts, commentators, and government lawyers have long recognized a government attorney

client privilege in several contexts.”); Theodore B. Olsen, Assistant Attorney General, Office of

Legal Counsel, Confidentiality of the Attorney General’s Communications in Counseling the SPOO8O-20 DECISION AND ORDER Page 5

President, 6 op. Off. Legal Counsel 481, 495 (19$2)(”{a]lthough the attorney-client privilege

traditionally has been recognized in the context of private attorney-client relationships, the

privilege also functions to protect communications between government attorneys and client

agencies or departments, as evidenced by its inclusion in the FOIA, much as it operates to protect

attorney-client communications in the private sector.”). In the context of a Sunshine Act request,

neither party disputes that section 10 108(i) encompasses the privilege.

Because the AG is the Governor’s attorney in Topasna, the Court is inclined to find any

related communications between the AG and the Governor are protected. However, the Court

cannot determine whether the privilege applies to its communications with the Governor because

the AG has not proven each element of the privilege, e.g., the confidentiality of its

communications with the Governor. In re Linclse, 158 f.3d 1263, 1270 (D.C. Cir. 1998)

(finding that a blanket assertion of the privilege will not suffice and that the Office of the

President must “present the underlying facts demonstrating the existence of the privilege” in

order to carry its burden.”); see also SEC v. Gulf & Western Industries, 518 F.Supp. 675, 682

(D.D.C. 1981) (finding that a blanket assertion of the privilege does not suffice and “[t]he

proponent must conclusively prove each element of the privilege.”).

Until the AG supplies the Court with an affidavit and index supporting its claim of

privilege, the Court withholds determining that it applies. See GRCP 45 (d)(2)(A) (requires the

party claiming privilege to expressly state the privilege, and support that claim with “a

description of the nature of the documents, communications, or things not produced that is

sufficient to enable the demanding party to contest the claim.”).

The AG also refuses to disclose communications with the Governor on the basis of

attorney work-product, which neither party disputes is encompassed by section 10108(i) of the SPOO8O-20 DECISION AND ORDER Page 6

Sunshine Act. The doctrine protects material gathered and memoranda prepared by an attorney

acting for his client, but unlike the attorney-client privilege, the work-product doctrine is limited

to documents prepared in contemplation of litigation. Hickman v. Taylor, 329 U.S. 495 (1947).

“The privilege covers factual materials prepared in anticipation of litigation, as well as mental

impressions, conclusions, opinions, and legal theories.” Tax Analysts t. IRS, 117 F.3d 607, 620

(D.C. Cir. 1997). Documents prepared in anticipation of foreseeable litigation may “address the

types of legal challenges likely to be mounted against a proposed program, potential defenses

available to the agency, and the likely outcome,” even where the prospective litigation opponent

is unknown. Heggestad v. U.S. Dep’t of Justice, 182 F. Supp. 2d 1, 7—8 (D.D.C. 2000) (citations

omitted). The critical factor for determining the nature of the document is determining the

primary purpose for the creation of the document. Delaney, Migdail & Young, Chartered v. IRS,

826 F.2d 124, 127 (D.C. Cir. 1987).

In summary, any documents the AG prepared for the Governor for Topasna or in

anticipation of similar litigation may be exempt from disclosure under the attorney work-product

privilege. However, again, the AG has failed to support its claim of privilege. If the AG wishes

to avail of the privilege, it must submit an index and affidavit for the Court’s review.1

2. Some of the requested intra-agency communications are likely protected from disclosure.

The Court recognizes that in responding to Fisher’s second request, the AG acts in

separate capacities: as legal counsel for the Government of Guam, its agencies, and its officers,

and as an employer. The Court examines the AG’s Sunshine Act response separately under each

of its roles.

1 The AG does not argue that the deliberative process privilege applies to its communications with the Governor. SPOO$0-20 DECISION AND ORDER Page 7

a. As Attorney General in Issuing Opinions

Fisher’s second request seeks any intra-agency communications from March 1 to the

AG’s date of response related to the payment of Government of Guam employees. The AG, in its

role as “interpreter” of the laws of Guam, claims that the deliberative process privilege applies to

any documents related to its May 14, 2020 opinion “Applicability of Double Pay Provision in

DOA Personnel Rules & Regulations Rule 8.406 to COVID-19 Public Health Emergency.”

Response at 5. The Legislature requested legal guidance on the issue on April 30, 2020. Guam

Att’y Gen. Op. No. LEG 20-0156 at 1.

As an initial matter, the AG admits that the deliberative process privilege does not exist

in Guam’s common law or a Guam statute. Instead, the AG asks the Court to recognize that

sections 10108(i)2 and (q)3 of the Sunshine Act encompass the privilege recognized in federal

common law.4 Response at 6.

Looking to federal common law, under the deliberative process privilege, a government

agency can withhold documents that “reflect advisory opinions, recommendations and

deliberations comprising part of a process by which government decisions and policies are

formulated.” FTC v. Warner Comrnn’s, 742 f.2d 1156, 1161 (9th Cir. 1984). The privilege seeks

to protect candid communication among officials who otherwise may not communicate as

frankly “if each remark is a potential item of discovery and front page news.” Dep ‘t of Interior v.

Kiamath Water Users Protective Ass’n, 532 U.S. 1, 8—9 (2001). However, mere conclusory

2 Section 10 108(1) shields “[all! existing privileges or confidential records or other information expressly protected under the law” from required disclosure. Section 10108(q) shields an agency’s draft documents from required disclosure. Federal courts recognize that the privilege is preserved in Exemption 5 of the freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(5). The statute shields “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” from disclosure. 5 U.S.C. § 552(b)(5). SPOOSO-20 DECISION AND ORDER Page $

assertions of privilege do not satisfy an agency’s burden to establish their right to withhold

information from the public. Coastal States Gas Corp. v. Dep ‘t of Energy, 617 F.2d 854, 861

(D.C. Cir. 1980). At least one court has found that an agency’s blanket assertion of the

deliberative process privilege fails to invoke the privilege and therefore waives its right to assert

it later. Alpha I, L.F. ex ret. Sands v. United States, 83 Fed. Cl. 279, 290 (2008); see also In re

McKesson Governmental Entities Average Wholesale Price Litig., 264 F.R.D. 595, 599 (N.D.

Cal. 2009).

Here, the AG not only asks the Court to recognize a privilege via decisional law but also

fails to supply the Court with even the minimal information necessary to determine whether the

privilege applies to any withheld documents. However, assuming the privilege exists, the Court

analyzes whether the privilege applies to any of the requested communications. Any

communications or documents must be predecisional and deliberative to be exempt from

disclosure. FTC v. Warner Commc’ns, 742 f.2d 1156, 1161(9th Cir. 1984) (to enjoy protection,

a document “must be predecisional--i.e., it must have been generated before the adoption of [a]

policy or decision... [and] deliberative in nature, containing opinions, recommendations, or

advice about ... policies [or decisions]”). In short, any communications or documents created by

an agency as part of the deliberative process preceding its final decision are exempt from

disclosure. Heggestcid v. U.S. Dep’t of Justice, 182 F. Supp. 2d 1, 6—7 (D.D.C. 2000).

The Court finds that the deliberative process privilege does not protect any

communications pre-dating April 30 and dated after May 14. Absent any contentions of other

applicable policies or decisions, the “final decision” at issue here is the AG’s opinion. As the AG

admits, it issued its decision on May 14, 2020, in response to an April 30, 2020 request. Any

requested communications from March 1 until April 30 precede this deliberative stage. Although SPOO8O-20 DECISION AND ORDER Page 9

the AG states that “[djuring the period between March 15 and May 26, the issue of compensation

for government employees who reported to work during the early stages of the COVID- 19 public

health emergency was a topic of media reports,” these media reports have nothing to do with the

AG’s deliberative process preceding a decision the legislature did not request until April 30.

Response at 7. Therefore, any communications pre-dating the requested legal advice are not

deliberative and any communications post-dating the opinion are not predecisional.

If the AG wishes to avail of the deliberative process privilege for communications dated

May 1 to May 14, it must submit an index of the documents for the Court to review. See Vaughn

v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d $20 (1973), cert. denied, 415 U.S. 977 (1974)

(“Upon remand the Government should undertake to justify in much less conclusory terms its

assertion of exemption and to index the information....”). The Court cautions the AG that the

index should contain sufficient information for the Court to determine whether the privilege

applies. Id. It also cautions the AG that the Court has not expressly recognized that the Sunshine

Act exempts documents from disclosure pursuant to the deliberative process privilege.

Alternatively, the AG argues that any intra-agency communications regarding the

Topasna case or any communications related to similar, future litigation concerning Government

of Guam employees’ compensation or pay issues are protected by either section 10 108(a) of the

Sunshine Act or the attorney work-product doctrine. Response at 11. It claims that it does not

matter that it is not a named party defendant to the Topasna case because the inclusion of an AG

employee as a plaintiff in the active litigation makes the agency a foreseeable defendant.

Response at 10.

Section 10 108(a) expressly protects only documents related to litigation in which an S P0080-20 DECISION AND ORDER Page 10

agency is a party.5 The AG is not a party to Topasna and therefore does not enjoy any protection

under that section of the Sunshine Act. However, the Court analyzes whether the requested intra

agency communications are shielded by the work-product doctrine.6

Focusing on the AG’s role as a legal consultant to the Government of Guam, the Court

determines that any intra-agency communications regarding future litigation like Topasna or

potential legal challenges to the AG’s interpretation of the DOA’s Rule 8.06 could be included in

the gambit of work-product. However, the Court has no way of determining which documents

enjoy such protection because the AG did not submit an affidavit or index supporting its claim of

privilege. If it wishes to avail of the privilege, it must submit an affidavit and index to the Court

for review.

b. As a Government Agency Administering to Employees

Turning to the AG’s role as an employer, the Court finds that the AG has not met its

burden in shielding relevant documents from disclosure. The deliberative process privilege does

not apply to any intra-agency communications regarding internal employee payment because the

AG provides no evidence that it has pondered or imposed an internal administrative decision on

how to handle pay matters during the pandemic. Thus, any communications related to the AG’s

internal employee payments would be neither deliberative nor predecisional. Am. Immigration

Council v. U.S. Dep’t of Homeland Sec., 905 F. Supp. 2d 206, 219 (D.D.C. 2012) (finding that

emails that dealt with an existing policy are neither deliberative nor predecisional); see also

Sterling Drug, Inc. v. F.T.C., 450 F.2d 698, 708 (D.C. Cir. 1971) (holding that to prevent the

development of secret law within an agency, a court “must require it to disclose orders and

Section 10108(a) shields from disclosure documents “pertaining to pending litigation to which the agency is a party until the pending litigation has been finally adjudicated or otherwise settled.” 6 The AG only invokes the work-product doctrine to shield any intra-agency communications regarding Topasna or similar, future litigation from disclosure. Response at 11. SPOO8O-20 DECISION AND ORDER Page 11

interpretations which it actually applies in cases before it”).7 The AG must disclose these

communications.

D. Communications on Personal Devices

Finally, with respect to the second request, the AG argues that personal communications

among and between AG employees are not public records subject to disclosure, but agrees that

AG-related business can be transmitted on its employees’ personal devices. The AG also

represented to the Court that it asked its employees to search their personal devices for

information responsive to Fisher’s request. The AG attorney attending the hearing, Deputy

Attorney General James L. Canto, II, was unfamiliar with any AG policy concerning the conduct

of AG business by AG employees on their personal devices and/or preservation of public

information transmitted on such devices. Attorney Canto also could not say whether the AG has

established written guidelines for the accessibility of records and records exempted from

disclosure as required under section 10106.

Responsive communications concerning public business transmitted over personal

devices cannot be shielded from disclosure. While “No one is interested in seeing WhatsApp

photographs of a basket of kittens sent by the Attorney General to his Chief Prosecutor,” Reply

at 4 (July 22, 2020), communications “relating to the conduct of the public’s business prepared,

owned, used, or retained” by the AG must be disclosed. 5 GCA § 10102(d). The AG may not

“own” or “retain” information transmitted on its employees’ personal devices, but public

documents and communications prepared or used on such devices still fall under section

10102(d). The AG correctly asked its employees to turn over responsive documents stored on

their personal devices, such as WhatsApp chats. The AG must ensure that it has fully complied

The AG does not claim that the attorney-client privilege or the work-product doctrine applies in its role as an employer. SPOO8O-20 DECISION AND ORDER Page 12

with its Sunshine Act responsibilities despite its belief that personal communications are not

subject to disclosure.

III. CONCLUSION & ORDER

Before the Court can determine whether any of the AG’s claimed privileges apply to

Fisher’s request, it must submit an index and affidavit supporting its claims of privilege within

10 clays of this Order. In addition, any intra-agency communications regarding internal employee

payments must be disclosed. The AG must ensure that it has fully complied with its obligation to

retrieve public documents contained on any of its personnel’s personal devices.

SO ORDERED this 14th day of August 2020.

HN ELYZE M. IRIARTE Judge, Superior Court of Guam

SERViCE VIA E-MAIL i acknowledge that an electronic e,t7 e?.

4vi/ ,1-1v.

LC.aLcziH. ‘ve Deputy Clerk, Superior Court of Guar)

Appearing Parties: Thomas J. Fisher, pro se Deputy Attorney General James L. Canto II for the Respondent Leevin Camacho, Attorney General of Guam