In 2016, Congress enacted the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). PROMESA created an entity within Puerto Rico’s government called the Financial Oversight and Management Board for Puerto Rico. The Board’s vast powers over Puerto Rico’s financial affairs displace the authority of the democratically elected institutions created by Puerto Rico’s Constitution. PROMESA also overrides Puerto Rico’s laws, but only to the extent that they are inconsistent with PROMESA. And it requires all lawsuits against the Oversight Board to be brought in the U.S. District Court for the District of Puerto Rico.
In this case, Puerto Rican journalists requested records from the Board under Puerto Rico’s constitutionally enshrined right of public access to official records of the government of Puerto Rico. Because the Board did not provide any of the requested records, the journalists sued in the federal district court, as PROMESA requires. The Board moved to dismiss, claiming that it had sovereign immunity from the suit. The district court and the First Circuit, however, both held that PROMESA abrogated the Board’s ability to claim sovereign immunity by providing the district court with jurisdiction over actions against it. The Board sought Supreme Court review.
Public Citizen filed an amicus brief in the Supreme Court supporting the journalist requesters. The brief explains that the Court need not determine whether PROMESA abrogated sovereign immunity, because the Board has no sovereign immunity defense against a lawsuit seeking official records to begin with. Any claim to sovereign immunity in the case necessarily is based on the sovereign immunity of Puerto Rico itself, and Puerto Rico’s courts have determined that Puerto Rico does not have sovereign immunity against suits seeking access to official records under Puerto Rico’s constitution and laws. PROMESA does not override Puerto Rico’s lack of sovereign immunity against such suits, because the ability to bring suit against the Board for access to public records is not inconsistent with anything in PROMESA.