The Antonio B. Won Pat International Airport Authority on Thursday filed a motion requesting that Judge Anita Sukola stay and reconsider her
May 14 decision requiring the disclosure of attorney-client privilege communications.
Sukola has ordered GIAA to turn over to DFS the transcript of an April 26 executive session of the airport board of directors related to litigation in which DFS is an adversary to GIAA. The issue of disclosure of attorney-client communications in GIAA board executive sessions relating to the long-standing litigation between DFS and GIAA is presently with the Guam Supreme Court pending decision.
"GIAA respectfully, but strongly disagrees, with the May 14 order, which directly conflicts with an earlier order issued by Judge Bordallo in a related case," said Kathleen Fisher, GIAA's attorney. "Judge Bordallo, unlike Judge Sukola, reviewed the transcript and found it to be subject to attorney-client privilege because the matters under discussion involved GIAA's litigation with DFS. DFS appealed Judge Bordallo's decision and the issue has been briefed and argued before the Guam Supreme Court."
The case stemmed from DFS Guam's allegation that the airport authority was an "active participant" in alleged misconduct during the selection of bidders for the airport's duty-free concession contract, which was awarded to Lotte Duty Free.
In earlier statement last week, the airport authority said it has produced over 13,500 pages of documents in response to DFS's 117 Sunshine Act requests over the course of the airport duty free concession litigation.
"It is the airport's position that the document in question – the April 26 transcript of an executive session of the GIAA board of directors – is not subject to the Sunshine Act since it involves privileged conversations between the Board and its legal counsel regarding the pending litigation with DFS that is currently the subject of an appeal before the Supreme Court," said Genevieve Rapadas, GIAA's attorney.
"The court held that there was a material misrepresentation by GIAA as to the status of the production of the April 26 executive session transcript regarding the pending litigation. GIAA respectfully but again strongly disagrees," Rapadas said.
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"It is GIAA's position that it acted with full candor when it informed the court that it was in compliance with Guam law by not producing a transcript involving attorney-client communications that was not in GIAA's possession at the time that request was made by DFS. Moreover, GIAA has to the best of its ability complied with the requirements of the Open Government Law notwithstanding provisions which the court has explicitly found in its decision and order to be ‘ambiguous' as to when the six-month period within which to seal the transcripts begins."
Rapadas argued that the transcript was not subject to discovery based on attorney/client privilege. “In fact,” Rapadas added, GIAA's position in this regard was validated by Judge Bordallo in a different proceeding when he sealed the subject April 26 transcript. The entire matter has already been briefed and argued before the Guam Supreme Court and we're hopeful of a positive outcome for GIAA."
Rapadas further argued that communications between DFS and its lawyers are protected by the attorney/client privilege, yet DFS claims public agencies like GIAA should not be afforded the same protection. “This would give private litigants such as DFS an unfair advantage over the public agencies such as the airport in litigation," she added.
GIAA Acting Executive Manager John M. Quinata, said in a statement last week that airport management is “fully committed to complying with every aspect of the Sunshine Act and Open Government Law of Guam.”
At the same time, Quinata added, “we are also committed to protecting the interests of the public when it comes to litigation against our agency. At the end of the day, the Court's order would impose an additional and unnecessary burden on public agencies. It would force public agencies to monitor the work of the few court reporters on Guam (who I understand are already stressed and overburdened given the lack of resources) and distract the public agencies (also under stress and resource limitations) from its primary and core duties and functions."