The purpose of this submission is to demonstrate that:
* The Freedom of Information Act (Chapter 6, Section 6.1 of the Legal Code) does not apply to the non-public deliberations and consultations of the Security Council;
* The Vice Delegate as the constitutionally mandated chair of the Security Council is not acting as a part of the Executive when exercising the role of chair of the Security Council and is independent of the Executive in such circumstances;
* The Vice Delegate's non public deliberations and consultations with the Security Council on security assessments of applicants to the Regional Assembly are therefore, not subject to the FOI law and are not subject to review by the Court for classification under the Freedom of Information Act.
The appropriate starting point for this submission is Section 6.2 of Chapter 6 of the Legal Code:
Section 6.2: Freedom of Information Act [note 1]
16. The Delegate and appointed government officials will be delegated the task of informing the Assembly of any governmental action not already disclosed by the respective officers of the Executive.
17. All registered citizens residing in The North Pacific may request information from the Government through the Delegate and the designated officers of the Executive.
18. The Delegate and the designated officers of the Executive will endeavour to retrieve information requested from the different departments of the government, who are obligated to release this information provided it will not and/or does not present a threat to regional security or unduly impinge on the privacy of private citizens, and
19. Citizens which do not receive this information for any reason not specifically designated in appropriate laws or regulations may file a request for the information in a regional court, where the Delegate and the designated officers of the Executive may present evidence that addresses any claim that release of the information impairs Regional security.
20. Information not disclosed because of issues pertaining to Regional security will be classified by the majority vote of the Court sitting as a three-member panel.
21. Information whose disclosure is deemed a security threat to the Region will be released by the affirmative vote of a majority of a three-member panel of the Court, no sooner than 2 months after the original request, once the threat no longer exists.
Note 1 - hereafter refered to as "the FOI law."
The FOI law first refers to the Delegate and
appointed government officials, and then references back to them for the balance of the law as "the Delegate and the designated officers of the Executive." Further, as will be shown below, the members of the Security Council are not part of the Executive under the definitions of Article 7 of the Constitution, and likewise, while they are defined for purposes of Article 7 as "government officials," the members of the Security Council are not
appointed. This leads to a result that, under the FOI law, the Vice Delegate and the Security Council are not "appointed" government officials, and thus, are not "designated officers of the Executive." Thus, by the literal language used, the members of the Security Council are not subject to the FOI law.
Further, the role of the Security Council (including the Vice Delegate) is defined in Article 6 of the Constitution, which, essentially, is to address regional security matters, and further, the literal language of Article 7 of the Constitution makes clear that the members of the Security Council are not part of the Executive, (nor the legislative nor the judicial category) although for at least some purposes, the Vice Delegate is a specified member of the Executive:
1. Constitutionally-mandated elected officials are the Delegate, Vice Delegate, Speaker, Justices, and Attorney General.
2. Government officials are the constitutionally-mandated elected officials, any officials appointed by them as permitted by law, and members of the Security Council.
3. The executive category consists of the Delegate, Vice Delegate, Attorney General, and government officials appointed by government officials in the executive category.
4. The legislative category consists of the Speaker, and government officials appointed by government officials in the legislative category.
5. The judicial category consists of the Justices, and government officials appointed by government officials in the judicial category .
6. All government officials, with the exception of members of the Security Council, must maintain membership in the Regional Assembly while in office.
7. All government officials will swear an oath of office. The content of these oaths will be determined by law and be legally binding.
8. No person may simultaneously serve in more than one constitutionally-mandated elected official positions.
9. No person may simultaneously serve in government official positions in more than one of the executive, legislative, or judicial categories. Exceptions to this provision may be established by law.
10. Candidates in any election must maintain membership in the Regional Assembly for the fifteen days before the opening of candidacy declarations and throughout the election.
11. Government bodies may create rules for their own governance subordinate to this constitution and the laws.
12. Procedures to fill vacancies in constitutionally-mandated elected offices may be established by law.
13. No law or government policy may contradict this constitution.
The real question here is whether the Vice Delegate is in fact a member of the Executive Branch
when acting in his constitutionally mandated role as chair of the Security Council [note 2] under Article 6 of the Constitution. [note 3] That further leads to the question of whether the Vice Delegate is acting as a member of the Executive or as the chair of the Security Council when he acts to perform a security assessment on applicants to the Regional Assembly since Chapter 6, Section 6.1, Clause 5 of the Legal Code [note 4] makes specific reference to the Vice Delegate acting in consultation with the Security Council. (A "security assessment" is logically connected to the responsibility of the Security Council "to monitor and report on the region’s security" under Article 6, Section 3 of the Constitution [note 5] as an assessment would imply the tasks of monitoring and reporting.)
Note 2 - See
In regards to the Judicial Inquiry filed by Tim on the Vice Delegate's Voting Rights within the Security Council
Note 3 - Article 3, Clause 9 of the Constitution provides that:
9. The Vice Delegate will chair the Security Council and enforce the continued eligibility of its members as determined by law.
Note 4- Chapter 6, Section 6.1, Clause 5 of the Legal Code currently provides that:
5. Forum administration will have 14 days to evaluate Regional Assembly applicants and verify that they are not using a proxy or evading a judicially-imposed penalty. The Vice Delegate will have 3 days to perform a security assessment of the applicant. All security assessments will be performed in consultation with the Security Council, and in accordance with all laws of The North Pacific.
Note 5- Article 6 of the Constitution provides for the role of the Security Council to monitor and report on the region's security:
Article 6. The Security Council
1. Any person who meets any endorsement and influence requirements determined by law may apply to become a member of the Security Council.
2. The Security Council may approve applicants by a majority vote. The Regional Assembly may admit an approved applicant by a majority vote. If the Security Council does not approve an applicant or does not act on them within thirty days, the Regional Assembly may admit the applicant by a two-thirds majority vote.
3. The Security Council will monitor the region's security and report on it to the public, and enforce decisions of the Regional Assembly to remove the Delegate.
4. The Regional Assembly may establish a line of succession beyond the Vice Delegate among the members of the Security Council by a majority vote. If a new member is admitted to the Security Council, they will be added at the end of the current line of succession. If a member is removed from the Security Council, they will be removed from the line of succession.
There is therefore a considerable doubt that the classification/declassification procedures in the FOI law can be applied to the Security Council given that the law itself is limited to the Executive Branch and given that, the most the Delegate and the designated appointed officials of the Executive can do is endeavor to seek the release of information from others; there is absolutely nothing in the FOI law as currently written, that requires the Vice Delegate, as an elected member of the Executive, or as the chair of the Security Council, being outside the Executive completely, to release any private or classified material. [Note 6]
Note 6 - The court's ruling in
In regards to the Judicial Inquiry filed by Kiwi on the Scope of Freedom of Information Act Requests is consistent with this argument on both legal and policy grounds; the status of the judicial category and the Security Council would be indistinguishable under the reasoning adopted by the Court in the just cited ruling, and in its approval of the corresponding brief filed by then sitting Justice SillyString in the same proceeding; see
brief filed by SillyString in regards to the Judicial Inquiry filed by Kiwi on the Scope of Freedom of Information Act Requests.
There is then, this statement on the FOI law request made by Blue Wolf from the Court through Justice SillyString:
Statement of the Court through Justice SillyString:
In accordance with Clause 19 of the Freedom of Information Act, Blue Wolf has filed a request with the Court for information pertaining to the Security Council's discussions on the rejections of Madjack and Rach from RA membership.
Information subpoenaed under a Freedom of Information request may only be denied if it meets at least one the following criteria:
1) The release of that information would impair Regional Security;
2) The information does not belong to the Executive Branch
As is laid out in the Constitution, the Vice Delegate is an executive official. Their actions, and the records thereof, accordingly, belong to the Executive Branch and are not exempted from expectations of transparency.
The Delegate, and any designated executive officials, are ordered to either release the requested information, or to provide evidence to the court that such release would impair Regional Security.
Due to the sometimes sensitive nature of security concerns, the Court is willing to receive and review this evidence in private if the Delegate so requests.
This judicial statement is problematic at best and inconsistent with the FOI law, the Regional Security Law, and the Constitution in that it ignores the fact that the private discussions of the Security Council are not subject to the FOI law as the Security Council (and its chair) are not part of the Executive. Essentially, the concern comes down to this – is the Vice Delegate solely an elected government official in the Executive branch, or does the Vice Delegate also exercise an independent role as the chair of the Security Council outside the Executive altogether?
Under the reasoning in that just-quoted statement from the Court, any private Security Council deliberation or discussion on any matter to which the Vice Delegate is a participant or has access (as the constitutional mandated chair of the Security Council) belongs to the Executive notwithstanding the fact that the Security Council is independent of all three branches (or Article 7 "categories") for all purposes (except for posting an oath of office), is neither the Delegate nor an appointed official of the Executive under the literal language of the FOI law, and thus, are not among the "designated officials of the Executive" under the FOI law.
Just as significantly, Article 7 of the Constitution, by its very structure, permits all members of the Security Council to serve on that body while also serving as government officials in the executive, legislative, or judicial categories. Security Council members are not required to be members of the Regional Assembly while serving as Council members. This constitutionally structured distinction demonstrates that the Vice Delegate when acting as the chair of the Security Council is not part of the Executive, any more than a Justice of the Court is acting as such when serving as a member of the Security Council, or a Speaker is acting as such when serving as a member of the Security Council. The roles are constitutionally independent of one another. The fact that the Vice Delegate is elected as chair of the Council by the Regional Assembly for a fixed term actually supports this analysis because the voters in the election for Vice Delegate have full knowledge and take into account this second, independent role of the Vice Delegate as chair of the Security Council in the election process.
Any careful analysis of the roles assigned to the Vice Delegate under the Constitution and the Legal Code makes clear that the Vice Delegate holds two independent roles – one as an elected official within the Executive, to serve as the designated primary successor to the Delegate, and a second independent role as chair of the Security Council, and, as a Constitutionally mandated member of that body, to participate in the Council's constitutional mandate to monitor and report on the Region’s security. In that respect, the requirement that the Vice Delegate perform a security assessment on applicants to the Regional Assembly is part of his role as chair of the Security Council, which logically explains the statutory directive in Chapter 6, Section 6.1 of the Legal Code that the Vice Delegate consult with the Security Council with respect to such assessments. Thus, these "security assessments" and any discussions or consultations held by the Vice Delegate with the Security Council are in his functionally and legally independent role as chair of the Security Council and not as a member of the Executive.
Accordingly, the material being sought under the FOI law are not subject to disclosure and are not subject to review by the Court for security classification under the FOI law.
