Transparency a requisite of democracy

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The article "EDA Refuses to Release names of Loan Recipients" which appeared in the Monday, Dec. 2, 2013, edition of the Daily News, should remind us all of the importance of transparency in our democracy.

The response of attorney Henry Smock with respect to the legitimate request for public documents by The Daily News is indicative of a lawyer who is intent upon covering the wrongdoing of his client.

Implicitly, Smock informed The Daily News that he was willing to tie up the matter in court for years, cognizant that he was being paid for his services from the public trough.

Yet both Smock and the EDA are willing to submit a censured list of borrowers to the public for review. For political reasons the names of some borrowers seem sacrosanct. This double standard has led Jason Robbins, publisher of the Daily News, to rhetorically ask, "What are they hiding?"

Right to public information

Within any democratic society, there must be checks on the power of the state.

Citizens or their representatives should not be denied access to information.

When they are denied information or given false or misleading information, the democratic process becomes a sham. It is thus necessary that the media of our islands, including the Daily News, not be denied information or given false information.

Some of us may remember that President Lyndon Johnson pretended he had given orders to stop bombing Vietnam when he had in fact issued orders to launch an air war against that country. We witnessed the same duplicity with President Richard Nixon over the bombing of Cambodia. Not to mention President Ronald Reagan's falsehood illicitly supporting guerrillas in Nicaragua.

A closed V.I. society

The recent conduct of the EDA and its attorney not to disclose the names of borrowers of taxpayer money represents a trend to create a closed society, which has increased dramatically over the last decade or so.

Even those vying for political office had noted the trend and a call for transparency has been prominent in gubernatorial campaigns, such as that of Dr. Cora Christian.

Not surprisingly, over the last few months we have witnessed a marked determination by the deJongh administration to hoodwink the people. Every revelation by the U.S. and V.I. inspectors general has confirmed the nonchalant and secretive spending of public funds in the interests of certain groups and individuals.

Moreover, the power of the closed society has become an incestuous relationship between government agencies. For example, we note the following report in The Daily News, on Nov. 19, 2013, with respect to the arrangement made between GERS and WAPA for the utility to pay what it owes GERS:

"According to Austin Nibbs, neither GERS nor WAPA can publicly disclose the terms of an agreement executed Oct. 31, and doing so will constitute an immediate breach of the agreement. GERS received a lump sum payment from WAPA on Nov. 14, Nibbs said."

Significantly, retired Judge Edgar Ross, a member of the GERS Board, questioned the position on the issue expressed by Nibbs.

"Can we seal an agreement dealing with public funds?" asked Ross, to which the GERS legal counsel, Pedro Williams, responded he would research whether the decision to deny public insight into the matter was against the Freedom of Information Act.

Significantly, based upon the presentation made by Nibbs before the Committee on Finance on Oct. 17, 2013, at that point in time WAPA owed GERS $916,190.

Naturally, because of the hidden agreement, the public right to know whether WAPA has completely met its debt has been denied. Perhaps even more telling was the fact that the legal counsel for GERS seemed unaware of the arrangement struck between GERS and WAPA. Also, the lawyer had not researched whether an agreement dealing with public funds could be sealed.

Moreover, the action of Nibbs in reaching a sealed agreement with WAPA appears to have violated Section 254 (2F) of The Sunshine Act, which provides that "no resolution, rule, regulation, ordinance, or formal action of any agency shall be valid unless taken or made at a meeting that meets the requirements of this section."

No meeting with a mandated quorum of members present seems to have been held on the purported agreement reached between the GERS administrator and WAPA.

Given the discovery of the existence of the sealed agreement, it would not be impertinent to ask how many additional sealed agreements the GERS administrator has entered into behind the backs of the people of the Virgin Islands and members of the GERS Board.

Right to know

A quote from a court case in 1980, Virgin Islands Press Association v. Luis, instructs us of the great importance given the Sunshine Act by the Judiciary.

"Government in the Sunshine Act, makes clear that the bright light of the sun was to shine on the Government of the Virgin Islands and its Agencies for which the Legislature is the proper policy maker," the court ruling states.

The opinion handed down by the court affirmed the declared policy of the law commonly known as the Sunshine Act: "It is hereby declared to be the policy of the Government of the Virgin Islands that the public is entitled to the fullest practicable information regarding the decision making processes of this Government," the section of the law that was added in 1976 states.

Recent court decision

An order issued by Superior Court Judge Adam Christian dated Nov. 25, 2013, is noteworthy inasmuch as the ruling issued upholds the public's right to know.

The case brought by plaintiffs Wilma Marsh-Monsanto, Diane Magras and Harriet Mercer against Caroline Fawks, Nefrediezha Barbel, Alecia Wells and Arturo Watlington, officials and members of the St. Thomas-St. John Board of Elections was designated as case No. ST-13-CV-211.

One of the two laws cited by the plaintiffs, which was taken into consideration by Christian in stipulating his order, is extremely relevant to the public's right to know.

Title 3, Section 881(b) grants the citizens of the Virgin Islands the right to examine public records of the government of the Virgin Islands.

"Every citizen of this territory shall have the right to examine all public records and to copy such records and the news media may publish such records, unless some other provision of the Code expressly limits such right or requires such to be kept secret or confidential," the statute states.

Further, the law clarifies that "the right to copy records shall include the right to make photographs or photographic copies while the records are in the possession of the lawful custodian of the records."

In upholding the law to protect the public's right to know, Christian ordered that defendants were permanently and mandatorily enjoined to make a number of documents available to the plaintiffs no later than Friday, Dec. 20, 2013. The decision in this case represents a victory for justice and helps to protect the public's right to know.

In the absence of the public's right to know, democracy may as well not exist. That is the reason the judgment of Christian was so profound and the effort of the three plaintiffs who appeared before his court was so important.

The Daily News must not give up its struggle to protect the public's right to know.

- Eddie Donoghue, Ph.D., is a V.I. historian and political consultant on St. Thomas.

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