Thu. Dec 12th, 2019

Appellate court denies 5 senators appeal

Palau’s Appellate court supported Trial court’s ruling last week that the Public Infrastructure, Industries and Commerce Minister Charles Obichang complied with the requirements called for under the Open Government Act (OGA) Section 906 (a) and declared no turnover order and no imposition of civil fine.

A civil case filed by five sitting senators, Regis Akitaya, Camsek E. Chin, Rukebai K. Inabo, J. Uduch Senior and Mason N. Whipps alleging that Minister Charles Obichang of the Ministry of Public Infrastructure, Industry & Commerce did not provide a set of documents pertaining to the airport improvement project in violation of the Open Government Act 10-day statutory deadline, was appealed after Trial court ruled in favor of the defendant Obichang.

Trial court had earlier denied the five senators motion for summary judgment stating that the “deadline for a response was met, there was no basis for declaratory judgment…or imposition of a civil fine.”

Appellate court reviewed the trial court’s decision “the determination that there is no genuine issue of material fact and whether the substantive law was correctly applied.”

In the appeal, both parties raised no objections to the trial court’s factual findings.

Trial court findings stated that of the five documents the plaintiff sought, trial court found that no feasibility study existed and therefore it is not considered public record in this case.  Another requested document, the financing agreement has not been reached and therefore no such agreement can be turned over.

The remaining three documents, the joint venture agreement, the concession agreement and design-and-cost document were cited by Minister Obichang in his response of January 16 as documents that fell under an exception of the Open Government Act, Section 905(a)(2) which allows the government to prevent release of certain documents that meet the exception clause.

On January 25 according to trial court, Minister Obichang submitted these same documents to OEK leaderships and legal counsels.  Plaintiffs filed their petition citing that they did not receive the documents within the 10 days of making the request as required by law.

Central to the argument in the appeal by the plaintiffs is that the 10-day deadline for response to a request was not complied with by Minister Obichang.

Furthermore, plaintiffs argued that plain language of the law allowed only one response and that it was to produce them within the stated deadline.

Appellate court’s response to this argument by plaintiffs was that it is “clearly untenable” or unacceptable. It supported Trial court’s statement that Obichang’s response to a letter of request from Senators detailing why he can’t release the documents within 10 days fulfilled his obligations under the law.

Furthermore, the appellate court stated that the production of requested documents within 10 days is not the only response option given under the law, that the law allows for exemptions and Minister saying no to the request citing exemptions is an allowable response.

“The statute does not obligate production of all requested public records within 10 days.  It only requires a response that comports with its requirements with that period”, stated Appellate court affirming Trial Court’s decision granting summary judgment in favor of Appellee, Minister Obichang of MPIIC. (L.N. Reklai)