Transparency policy of "La Junta": Sue me, if you can.

Wrapping up our summer newsletters is Ángel Rodríguez Ramírez, who writes about the United States Supreme Court’s decision that makes it impossible for Puerto Ricans to hold the government accountable. Thank you for finishing off the series, Ángel!
   
Officials you can't vote for appoint other officials without your consent to determine your state's policies and finances. You pay their exorbitant salaries, and now you are prohibited from even finding out how they make decisions. What does that sound like? Certainly not democracy!
 
As First Circuit Judge Torruella stated, the United States has an extensive and complex history of colonialism that undermines Puerto Ricans’ self-governance through political experiments based on the Territorial Clause (e.g., The Invasion of 1898, Foraker Act of 1900, Jones Acts of 1917 & 1920, "the so-called Commonwealth" of 1952, and the Insular Cases). The most recent colonial experiment was the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA), passed in response to Puerto Rico’s $72 billion debt crisis and $55 billion of unfounded liability of obligations. According to PROMESA §101 (a), the imposed Fiscal Oversight and Management Board’s (FOMB, also referred to as "La Junta" by locals) purpose is to "help Puerto Rico achieve fiscal responsibility and renew access to capital markets." However, Puerto Rican think tank the Center for a New Economy’s 2021 report demonstrated that PROMESA is a failed colonial experiment. The FOMB is not meeting most of its objectives toward auditing and restructuring the debt and has dictatorial policies that prevent the Puerto Rican government from complying with its obligations. Additionally, organizations have demanded accountability from the FOMB for failing to follow their own ethics policies on financial and conflict of interest disclosures. Public transparency is essential to any democracy, and Puerto Ricans have historically fought for it. 
 
The Supreme Court has not yet recognized that the First Amendment protects the right to access information (also known as the "right to know") from the government in general. Instead, the Court’s jurisprudence focuses on the individually enforceable right of access in specific controversies regarding judicial proceedings and other government records. Since the Freedom of Information Act of 1966, it has been up to Congress and the President to decide which information citizens have a right of access to, relieving the Supreme Court from answering the crucial general question. On the other hand, Puerto Ricans enjoy a fundamental presumption in favor of disclosure of general government information. In Soto v. Srio. de Justicia, 112 DPR 477 (1982), the Supreme Court of Puerto Rico acknowledged that the right of access to public information in general emanates from the fundamental right of free speech embodied in Puerto Rico’s constitution. At present, this right in Puerto Rico is exercised through statutory regulation ("FOIA laws") with certain exceptions (established in Bhatia Gautier v. Gobernador, 199 DPR 59 (2017)). Puerto Ricans use this legal framework to uphold our democracy by obtaining the necessary information for demanding redress, auditing the government, and informing citizens before our next decisions at the polls. However, the United States Supreme Court severely limited our exercise of this right in its 2022-2023 term. 
 
In an 8-1 decision, in Fin. Oversight & Mgmt. Bd. for P.R. v. Centro de Periodismo Investigativo, Inc., 143 S. Ct. 1176 (2023), the U.S. Supreme Court stomped on Puerto Ricans' right of access to information relating to the Fiscal Oversight and Management Board. In 2017, Centro de Periodismo Investigativo (CPI) brought a suit against the FOMB to force them to release documents about Puerto Rico's fiscal situation, including contracts, meeting minutes, financial disclosure forms, and communications among Board members. CPI’s suit relied on Puerto Ricans’ constitutional right of access to governmental information. During litigation, the FOMB argued they had sovereign immunity and that PROMESA did not abrogate it. Therefore, the FOMB argued they did not have to comply with Puerto Rico’s FOIA laws. The Supreme Court "assumed" the existence of the FOMB sovereign immunity, and wrongly decided in their favor to evade answering where the "sovereign immunity" of a colony comes from. Considering that PROMESA § 106 establishes that the FOMB can only be sued in federal courts, Puerto Ricans lost their only legal pathway of demanding transparency and accountability from the FOMB in this historic "debt restructuring process." For years, multiple press, legal, and community-led organizations warned courts in their amicus briefs and the media about the devastating consequences of this outcome. Simply put, "La Junta" can now legally avoid providing any information to Puerto Ricans because it cannot be sued in any jurisdiction for that matter, jeopardizing democracy and affirming the U.S. colonial regime over Puerto Rico. 
 
In sum, past and present colonialism prevents Puerto Ricans from effective and democratic self-governance. On a federal level, constant political battles to obtain individual government records are unsustainable. We need to push the Supreme Court to acknowledge that the First Amendment protects our right to access government information in general, meaning that citizens should enjoy a presumption of disclosure that cannot be limited through the political process. On our end, we Puerto Ricans urgently need to unite to politically advocate for the derogation of the colonial experiment that is PROMESA. Alternatively, we could aim towards amending the statute so Congress expressively abrogates the FOMB’s so-called "sovereign immunity," and Puerto Rican people can properly hold these unelected officials accountable by exercising our right to know in our courts. In any circumstance, we should have the right to know "what [our] government is up to." Department of Defense. v. Fed. Lab. Rels. Auth., 510 U.S. 487, 488, (1994)
   
Ángel A. Rodríguez Ramírez is a candidate for J.D./Masters in Public Administration joint program at the University of Puerto Rico School of Law. One of his most fulfilling experiences in law school is being a member of the Amicus Justitiae Pro bono. Prior to law school, he graduated from the University of Puerto Rico at Ponce in 2022 with a B.A. in Forensic Psychology with an emphasis on Rehabilitation Services. To learn more about IfRFA fellows, please visit: https://ifrfa.org/fellows