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Take two: Guam's open government law supersedes confidentiality in public affairs

Updated: Jun 15

Moylan asks the court to rehear conflict-of-interest case


 By Mar-Vic Cagurangan

 

Attorney General Douglas Moylan today asked the Supreme Court of Guam to reconsider its May 31 judgment, which held that the chief legal officer owed his loyalty to the government.

 

In filing a petition for rehearing, Moylan said “particular points of law were overlooked” and thus needed clarification.

 

Moylan is seeking to contest the court’s declaration that the attorney general, as the chief legal counsel to government agencies, was bound by attorney-client privilege, which entailed confidentiality of any information related to his representation.


Douglas Moylan

“A confidential communication by the government cannot exist without written approval of the agency attorney – often the attorney general," Moylan argued. “In such context, the attorney general is a holder of the right to the privilege.”

 

The court’s decision was based on Gov. Lou Leon Guerrero’s request to clarify the attorney general’s duties under the Organic Act and to resolve the office’s conflicting dual role as the attorney for the government and the people of Guam.

 

The case stemmed from Moylan’s withdrawal of his legal representation of 22 agencies being investigated by his office.

 

Moylan said his office had the responsibility to take action if any anomaly in an agency is red-flagged during the process of representation.

 

“If an assistant attorney general working with a Guam agency official learns through conversation that a particular application for a contract was given

 priority due to a previously undisclosed financial relationship with the official, then that assistant attorney general is duty-bound to report such illegal activity to the attorney general or other law enforcement in order to protect the agency and the people of Guam." he argued.


Government agencies, Moylan added, are subject to the Open Government Act and the Freedom of Information Act, which were both enacted to ensure transparency in government affairs.


“There is no expectation of privacy or attorney-client privilege of a government agency or official outside the provisions of the open government law,” Moylan said.


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He pointed out that the Guam legislature enacted transparency laws to ensure that policy-making decisions are open to the public and not done behind closed doors.

 

Moylan noted that in private practice, the individual private client is entitled to confidentiality, which means that the attorney could not disclose any information without violating professional obligations.

 

“However, in the government attorney context, the attorney serves the agency, and not the individual who temporarily occupies one of its offices,” he said.

 

“The attorney general may waive the attorney-client privilege of a government organization when such waiver is necessary for the enforcement of the laws of Guam, the preservation of order, and the protection of public rights and interests,” Moylan argued.


While some discussions may be done in executive sessions, Moylan said communication between an agency and its attorney must meet certain criteria to qualify as privileged. It must, for example, be directly related to ongoing litigation and the executive sessions must be sanctioned by the board.





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