Public records dispute goes to court today Obstructing the public's right to know
Published: October 23, 2012
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ST. THOMAS - Senate President Ronald Russell will appear in V.I. Superior Court today to state his reasoning for keeping Legislature documents hidden from the public.
It has been 11 months since The Daily News first requested a series of public documents relating to the expenses and cash advances for senators in the 26th, 27th, 28th and 29th Legislatures.
The request was made shortly after the release of a joint audit by the V.I. Inspector General's Office and the Office of the Inspector General at the U.S. Department of the Interior. The audit described "highly questionable practices" involving the management of public funds that resulted in more than $6.9 million of lost revenue, unnecessary expenses and unsupported costs.
To date, no information has been given to the newspaper.
On Oct. 12, The Daily News filed a complaint in V.I. Superior Court on St. Croix asking a judge to force Russell to release the documents.
Russell responded by filing his own complaint, a petition to restrain examination of records by the Virgin Islands Daily News.
On Thursday, Superior Court Presiding Judge Darryl Donohue Sr. issued an order consolidating both complaints into one evidentiary hearing and set the date for today.
In his order, Donohue said both complaints arise out of the same issue - the right to examine "possibly confidential" documents related to "possible cash advances" by the V.I. Legislature.
The territory's public records law allows residents to enforce their rights to obtain access to public records by asking a court to order the records to be produced.
A memorandum in support of The Daily News' case written by attorney Kevin Rames outlines the newspaper's argument that "there is no legally cognizable basis" for the Senate to withhold the documents. The memorandum argues the Senate records in question clearly fall under the scope of the public records law and that nothing in the V.I. Code expressly limits "the rights of citizens of the Territory to review and copy the particular government records that are identified in The Daily News' Request for Public Information."
The memorandum also argues that releasing the records will benefit the public.
"The public interest will be served by the issuance of a mandatory injunction by this Court ordering the inspection and copying of the public documents listed in the Request for Public Information," Rames wrote. "There is a lack of institutional accountability and transparency which is inimical to good government."
Russell's argument is that because the information was used in the audit, the information should be deemed confidential.
The territory's public records law exempts "all working papers, draft reports and documents containing evidence to support findings, conclusions, and judgments of auditors of the Office of the V.I. Inspector General" from public inspection.
The law does not state whether the exemption applies to public documents that are not in the Inspector General's custody or control.
The audit that began the fight over public records was released late last year.
The audit's major findings included:
- Payment of cash advances to senators for travel with no verification that the travel actually occurred.
- Awarding of bonuses to employees without written standards or justification of such awards.
- Selection, approval and payment of contracts without competition and internal controls, leading to overpayment and no documentation that the work had been performed.
- No reporting to the Internal Revenue Bureau, leading to underpayment of tax receipts to the V.I. government.
- No documentation for sensitive equipment, potentially leading to the equipment being misused, lost or stolen.
The audit looked at the 26th, 27th and 28th legislatures, although most of the findings focused on the 28th Legislature.
Senators in the 28th Legislature were Craig Barshinger, Adlah Donastorg Jr., Carlton Dowe, Louis Hill, Neville James, Wayne James, Shawn-Michael Malone, Terrence Nelson, Usie Richards, Nereida Rivera-O'Reilly, Sammuel Sanes, Patrick Simeon Sprauve, Michael Thurland, Celestino White Sr. and Alvin Williams Jr.
Today's court hearing begins at 10 a.m. in Donohue's courtroom.
- Contact reporter Aldeth Lewin at 714-9111 or email email@example.com.The following is a time line of events related to The Daily News' ongoing attempt to obtain access to public records detailing the travel expenses of the 26th, 27th, 28th and 29th Legislatures.
- December 2011: An audit of the V.I. Legislature by the V.I. Inspector General's Office and the Office of the Inspector General at the U.S. Department of the Interior finds "highly questionable practices" involving the management of public funds that resulted in more than $6.9 million of lost revenues, unnecessary expenses and unsupported costs. Senate President Ronald Russell announces an internal investigation into the audit's findings and pledges to release the results - including the names of the senators responsible for the incidents reported in the audit.
- Dec. 15: The Daily News hand-delivers a request to inspect travel records from the 26th, 27th and 28th Legislatures to Russell on the Senate floor. Weeks later, Russell says he "misplaced the letter."
- Jan. 23: The Daily News hand-delivers the letter to Russell a second time.
- February 2012: Russell announces he will not reveal the names of the senators implicated in the audit and says the senators can reveal their own identities.
- Feb. 6: The Daily News gives Russell the public information request a third time. Russell confirms receipt by phone, but does not respond to the request or provide the documents.
- April 2012: Russell says he is ready to make public the results of his investigation; he never does so.
- July 2012: Russell says federal and local investigations prevent him from releasing the results of his investigation. He says the Legislature's legal counsel advised him not to release any information regarding his investigation until the outside investigations have closed.
- July 23: Russell confirms via email that he received The Daily News open records request after it had been sent to him a fourth time.
- July 31: The Daily News request is sent to Russell again and copied to all 15 senators.
- Aug. 1: V.I. Legislature Executive Director Pamela Richards Samuel sends an email to The Daily News stating that Russell has charged her with filling the request. She says she cannot immediately fulfill the request because a key person is out of the office until Aug. 20.
- Aug. 17: Russell sends a letter to Daily News Executive Editor J. Lowe Davis acknowledging the open records request from December and indicating the Legislature's staff is working on the request. "I apologize for any inconvenience that may have been caused by the delay in our response; however, let me assure you that our staff is working to execute this directive at the earliest convenience," Russell wrote.
- Sept. 25: Russell contacts The Daily News' attorney, Kevin Rames, expressing a desire to meet with Daily News Publisher Jason Robbins to release all documents responsive to the newspaper's request and to sit for an interview about the data.
- Oct. 1: Robbins responds with a letter to Russell stating The Daily News "looks forward to your providing us with this public information" and that the newspaper staff "await the information at your earliest opportunity."
- Oct. 10: Russell denies having seen this letter but says he has authorized release of the documents. However, Russell is unable to provide a date, time or place for releasing the records. Samuel says that Russell pulled her off the job of compiling the documents a month earlier and that the finance employee now assigned to compile the records is on jury duty.
- Oct. 10: The Daily News announces it is preparing to take legal action to obtain the records.
- Oct. 11: Russell refuses to accept a hand-delivered copy of the Oct. 1 letter. He tells Rames that The Daily News can pick up the requested documents from the business office at the V.I. Legislature building on St. Thomas. Staff there say the documents will not be ready for two more weeks.
- Oct. 12: The Daily News files a complaint in V.I. Superior Court seeking to force Russell and the Senate to release the documents requested as provided under the territory's public records law.
- Oct. 12: Russell files a petition asking the court to prevent the release of the records, arguing they are evidence in an Inspector General's audit and therefore protected under the law.
- Oct. 23: V.I. Superior Court Presiding Judge Darryl Donohue conducts an evidentiary hearing regarding the complaints filed by both parties.