Transparency problems plague Spaceport America

The N.M. Spaceport Authority has violated the state’s transparency laws several times this year, blocking or delaying public access to information about the spaceport

Spaceport America is a publicly owned government entity, so the law requires its financial and other dealings to be open to the public, with few exceptions.

And yet in 2017 the N.M. Spaceport Authority, the state agency that runs the spaceport, has violated the state’s transparency laws several times in response to requests for documents filed by NMPolitics.net, a citizen from Truth or Consequences, and a reporter with KTSM-TV in El Paso. Those violations, in addition to other possible infractions, blocked or delayed public access to information about the spaceport.

Dan Hicks, the spaceport’s CEO, prefers to meet face-to-face instead of responding to emails. He made many efforts during the course of my months-long investigation of the spaceport to answer questions. That included hosting a forum at Spaceport America with journalists and economists to discuss the spaceport’s economic impact.

Those discussions, as NMPolitics.net reported earlier this week, revealed reason for optimism about Spaceport America’s future as an economic driver.

But the state’s Inspection of Public Records Act (IPRA) intends to ensure the public has access to documents and facts, not just officials’ words.

The Spaceport Authority blacked out information in some lease agreements with aerospace companies it provided to NMPolitics.net, including rent and fee schedules. That was done to “honor the rights that New Mexican state law provides to innovators, developers and entrepreneurs who seek to move their operations to our state,” said Melissa Kemper Force, the agency’s general counsel.

Force cited a New Mexico Supreme Court rule of evidence that protects trade secrets in court cases to justify blacking out information in the lease agreements. Whether that rule applies to a state agency withholding information from the public is a matter of debate.

The spaceport should err on the side of giving the public information, not protecting “private aerospace firms’ confidentiality interests,” said Peter St. Cyr, executive director of the N.M. Foundation for Open Government. He pointed to the Legislature’s stated intent in IPRA that the public be given access to “the greatest possible information regarding the affairs of government,” which that law calls “an essential function of a representative government.”

“They need to stop imposing their own secrecy rules,” St. Cyr said. “…Taxpayers have invested hundreds of millions of dollars in the development of Spaceport America and are entitled to complete transparency and access to public records.”

“When the spaceport shields the documents, it makes it difficult to ensure accountability at the facility,” St. Cyr said. It also makes it difficult to evaluate the spaceport’s claim that it’s having a positive impact on New Mexico’s economy.

Other problems I encountered appeared to be due to a lack of understanding of the state’s transparency laws. In May, I asked Hicks whether he and his staff had been trained on IPRA and Open Meetings Act (OMA) compliance. The Attorney General’s Office regularly hosts such trainings around the state.

Hicks said staff had not attended an AG event but had done some internal training. He acknowledged the need for better training for spaceport staff during that interview.

“I want to be sure that we all have a clear understanding of what our IPRA responsibilities are as a state agency,” Hicks said. “IPRA is kind of the foundational document that should guide us and all state agencies.”

Hurdles to public access

The violations and possible violations of transparency laws started in March when I and Patrick Hayes, the KTSM-TV reporter, asked for copies of the spaceport’s lease agreements with aerospace companies. I paid the fee of nearly $300 for copies of the documents. Hayes asked to bring his own equipment to digitize the records himself for free, which the state Attorney General’s Office says is allowed.

The Spaceport Authority rejected Hayes’ request, leaving him only the option of paying the $1-per-page fee if he wanted copies.

After I told Hicks in May that state law lets people bring their own digitizing equipment, the agency changed its policy. It now allows people to make their own copies. But Hayes says he was never given that chance. He filed complaints about that and other issues with the AG’s office.

Assistant Attorney General Dylan K. Lange determined last week that the Spaceport Authority had violated IPRA four times in its interactions with Hayes – by improperly attempting to charge fees for public records, failing to provide records in electronic format, prohibiting the use of digitizing equipment, and denying a request without explanation.

The Spaceport Authority responded that it had not violated IPRA. In a Friday news release, the agency said it had notified the AG’s Office that Lange’s determination contained “legal inaccuracies.” The agency did not elaborate, saying it was “inappropriate for Spaceport America to further address these issues until the attorney general has had the opportunity to make any corrections he feels are necessary.”

In response, spokesman James Hallinan said the AG’s Office “absolutely” stands by its finding of four IPRA violations. “As with all IPRA complaints, Spaceport America has been given every opportunity to be transparent and explain why it did not produce public records,” Hallinan said. “The responses provided do not establish any valid legal basis for withholding the information.”

Hayes and I also requested in March all documents that went into Spaceport America Chief Financial Officer Zach De Gregorio’s “economic impact” analysis, which claims that “every dollar invested” in the spaceport by the state in Fiscal Year 2016 “has 20x return.” A five-frame slideshow making that claim has been shown to legislators, county commissioners, journalists and others.

I was exact in asking for “Any and all documents that support the analysis that in Fiscal Year 2016 the spaceport’s economic impact was $20.8 million.” I asked for documents to back up “the estimates that the commercial spaceport industry generated $11,021,000, that non-aerospace spaceport business was $1,089,000, that tourism generated $1,789,000, that additional taxes earned were $861,000, that indirect purchases in N.M. businesses were $3,852,000, and that investment in STEM education was $2,200,000.” Those numbers were included in De Gregorio’s slideshow.

The agency provided nothing.

Didn’t De Gregorio review the agency’s budget? Documents that show payments from companies that have leases? Financial records from film companies doing shoots at the spaceport? Records from the tour bus operator? “There are no more documents,” De Gregorio told me.

Didn’t De Gregorio take notes when he was interviewing business owners to gauge the spaceport’s impact? Yes, Hicks told me. Shouldn’t those be retained for public inspection, at least for a time, as state law intends?

“Does he keep those? No,” Hicks said. “It’s kind of like, ‘Hey, I finished the briefing. Get rid of that.’ ”

St. Cyr said that’s the wrong attitude.

“Government records are created with public funds and belong to the citizens of the State of New Mexico,” he said. “These records are the evidence of what the spaceport does, and the director and his team should understand they have an obligation to retain most types of documents for five years.”

When the request for all documents that factored into De Gregorio’s analysis turned up nothing, I filed a new request for copies of the Spaceport Authority’s fiscal year 2016 and 2017 budgets. The agency directed me to the state’s sunshine portal, which lists some budget information, but not a detailed, line-item budget. I had to ask a second time to get the documents I requested.

Ron Fenn of Truth or Consequences, an activist who is upset about the city moving a community center to make room for the spaceport’s visitor center, has experienced the transparency problems firsthand. His request for a document that details what happened at the March 29 meeting of the Spaceport Authority’s governing board went unanswered for weeks, in violation of state law, until he threatened to file a formal complaint with the AG.

I also didn’t get the draft minutes of that March 29 meeting in the time required by law. OMA states they must be available for public inspection no more than 10 days after the meeting. In this instance, that means they should have been available by April 8.

IPRA requires that an agency respond to all records requests within three days, either by providing documents, explaining how soon they will be available, or explaining why they are exempt from public disclosure. My May 4 request went unanswered. When I mentioned the lack of response on May 18, Hicks did what the agency often did when I pointed out problems. He apologized.

He also said the draft minutes weren’t yet ready. Hicks provided the minutes to me the next day, on May 19 – weeks after state law required that they be made available to the public.

More apologies

The apologies came often. In its initial response to my request for the aerospace companies’ lease agreements, the spaceport cited, to justify redactions of rent and other information, a provision in IPRA that exempts public hospitals’ trade secrets from release. That statute doesn’t mention or apply to the spaceport. And the agency cited a provision in IPRA for “security” – perhaps because sections in four of the five leases labeled “security” are entirely blacked out. But IPRA has no provision that exempts “security.”

When questioned about the apparently bogus justification for the redactions, Force, the spaceport’s general counsel, apologized. Then she cited the Supreme Court rule that protects trade secrets in court cases to justify the redactions.

St. Cyr was especially irked by the shifting justifications for the lease redactions because the spaceport unsuccessfully sought legislation this year that would allow it to keep all sorts of customer information secret – including rent payments and even the identities of customers. Now, he said, the spaceport is withholding some of that information as if the bill became law.

“Their insistence that they are better suited to determine what is fair and equitable for outside business interests reveals an alarming level of contempt for the legislative process,” St. Cyr said.

Hayes got an apology too. In response to a request for contracts and other documents, he was told in a June 14 email that the agency needed more time to gather documents, and to expect a response by June 26. None came, so on June 27, Hayes filed another complaint with the AG’s office.

Hayes heard that day from David Matthews, general counsel for the state’s Economic Development Department, which works with the spaceport. Matthews wrote in an email that the documents were ready for inspection.

“On behalf of the Spaceport, I apologize,” Matthews wrote. “We simply missed your email…”

Fenn also got an apology after he threatened to file a complaint with the AG for the lack of response to his request for the March 29 meeting minutes.

“As you know from your previous requests, it is not normal for us to be late in responding to requests,” the agency wrote.

Blocked on Twitter

As I was wrapping up my reporting for this series, I discovered on June 24 that Spaceport America had blocked me from following its Twitter account – from seeing or responding to its tweets. I don’t know when it happened, but the agency had revoked my access.

I emailed Hicks and Tammara Anderton, who at the time was the spaceport’s vice president for business development, to ask why. Days later that hadn’t resulted in my access being restored, so on June 28 I filed a formal request for the complete list of Twitter accounts Spaceport America had blocked.

My access to the agency’s Twitter account was restored the next morning, but the spaceport refused to hand over the list I requested, saying IPRA “does not reference Twitter.”

Hicks told me the spaceport started blocking people on Twitter last fall because critics from T or C were publicly posting “very negative” and “obscene” responses to tweets. He didn’t explain why I was blocked or when, but suggested it might have been because of an article I wrote.

The agency has the right to block people on social media to protect Spaceport America’s image and branding, Hicks asserted. He’s now working on a formal policy so such decisions aren’t subjective in the future.

“If they criticize us we need to have thick skins and think through why they would say that,” Hicks said. “…Now when it becomes obscene or against industry standards, then I think that’s when our policy should be in place.”

Not all agree. The Knight First Amendment Institute recently sued U.S. President Donald Trump for blocking people on Twitter. The lawsuit alleges that such blocking by public officials is unconstitutional viewpoint discrimination.

“The First Amendment applies to this digital forum in the same way it applies to town halls and open school board meetings,” Jameel Jaffer, the Knight Institute’s executive director, said in a news release. “The White House acts unlawfully when it excludes people from this forum simply because they’ve disagreed with the president.”

That lawsuit is pending, and there’s little case law on the issue. But a federal judge in Virginia recently ruled that a county government official violated a critic’s First Amendment rights by blocking her on Facebook.

St. Cyr agreed that social media blocking is “viewpoint discrimination.” For Spaceport America, it’s part of a pattern of rejecting the Legislature’s intent that people should have the greatest possible access to their government, he said.

“They’ve thrown the finger at the Legislature, and now they’re throwing the finger at you,” St. Cyr said.

‘It’s going to be a team sport’

The Spaceport Authority operates on a tight budget and its staff members are stretched thin. But state law doesn’t allow agencies to break the law because they’re busy or don’t understand their responsibility.

IPRA requires all local and state government agencies in New Mexico to formally designate an employee as the records custodian. That’s the person “responsible for the maintenance, care or keeping of a public body’s public records,” IPRA states. It’s who you contact if you want to inspect a local or state agency’s records.

The Spaceport Authority has no designated records custodian, though Hicks said the CFO, De Gregorio, has been handling the role informally.

De Gregorio has been using a generic email account, rather than his own, to handle many IPRA requests. Responses are often signed by the “Records Custodian” without naming him or including contact information to help people follow up. Fenn expressed frustration to me about not knowing who he was corresponding with when he sought documents.

“The spaceport would be well served to appoint a qualified records custodian to champion transparency through all levels of its operations and to remind management that, long ago, state law established the public’s right to inspect records and independently determine what is going on at this facility,” St. Cyr said.

Hicks said he wants his agency to be in compliance. Transparency, he said, “keeps trust built with government and the people.”

“I know that in order for the spaceport to ultimately be successful it’s going to be a team sport,” he said.