Spaceport violated open government law, AG’s office says

The N.M. Spaceport Authority violated an open government law several times in its responses to NMPolitics.net’s efforts to investigate Spaceport America in 2017, the state attorney general’s office has determined.

But on perhaps the central transparency question in NMPolitics.net’s complaints to the AG’s office — whether the Spaceport Authority broke the law by refusing to reveal how much money some customers are paying to use the spaceport — the AG’s office punted on taking a definitive stand, even as it expressed skepticism that the agency had acted appropriately.

Assistant Attorney General Dylan K. Lange identified four violations of the state’s Inspection of Public Records Act (IPRA) in the determination letter released Thursday:

• Failing to respond to a records request in the time the law requires.
• Citing the wrong exemption to redact information from public records.
• Charging unauthorized fees for copies of public records.
• Refusing to release a list of Twitter accounts the agency had blocked from seeing or responding to its tweets.

The AG’s office sent Lange’s letter to the Spaceport Authority’s attorney, Melissa K. Force, and to NMPolitics.net editor and publisher Heath Haussamen, who filed the complaints against the spaceport in September 2017.

A determination letter from the AG’s office is a legal opinion and is not legally binding. There are no criminal penalties for violating IPRA, but a court can punish violators in a civil case by ordering them to pay damages of up to $100 per day that records are improperly withheld.

Haussamen said Lange’s determination letter is a win for government transparency.

“I’m grateful for the attorney general’s affirmation that I encountered serious problems while reporting on Spaceport America,” Haussamen said. “We’re reviewing Mr. Lange’s determination letter and evaluating our next steps.”

This is the second time the AG’s office has determined that the Spaceport Authority violated open government law. In August 2017, Lange wrote that the Spaceport Authority violated IPRA four times in its interactions with television reporter Patrick 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 records request without explanation.

At the time, the Spaceport Authority said it didn’t violate IPRA and claimed Lange’s determination letter contained “legal inaccuracies.” The AG’s office responded that it “absolutely” stood by its findings.

Haussamen filed his complaints against the Spaceport Authority weeks after reporting on the problems he, Hayes and a citizen from Truth or Consequences experienced in trying to obtain information from the agency in 2017.

Ultimately, NMPolitics.net’s investigation of Spaceport America found reason for optimism about the facility’s future but also serious transparency issues — and those hurdles to accessing information made fully evaluating the spaceport’s economic impact in New Mexico difficult.

Redactions in lease agreements

The issue Lange left unanswered on Thursday — whether the Spaceport Authority can redact certain information from lease agreements with customers — was a central point in NMPolitics.net’s investigation. The state and and voters in Doña Ana and Sierra counties agreed to spend about $220 million on the project a decade ago, and Haussamen was trying to determine whether that investment was paying off.

So he requested lease agreements with the spaceport’s five “permanent tenants” last year. The spaceport released those documents, but redacted portions of four to block the disclosure of rent and fee information, sections that indicate where at Spaceport America companies were operating, insurance information – and, in one lease, even the contact information for two company officials. Only Virgin Galactic’s lease was released without redactions.

Haussamen asked the AG to clarify whether the redactions were appropriate after several state officials, including Lt. Gov. John Sanchez, a non-voting member of the spaceport’s governing board, said rent and other financial information should be released to the public.

Because IPRA didn’t explicitly exempt such information from release, the Spaceport Authority looked elsewhere, ultimately citing a N.M. Supreme Court rule of evidence relating to trade secrets in court cases to justify the redactions.

But does the redacted information qualify as a trade secret? With no New Mexico legal cases “directly on point,” Lange wrote that rulings in other states “generally hold that rental payments and similar terms in a government contract are not trade secrets for purposes of those states’ open records laws.”

“… we believe it unlikely that a New Mexico court would conclude that terms in a lease agreement with a public body for rental payments, user fees, and insurance coverage, without more, qualify as trade secrets exempt from disclosure under IPRA,” Lange wrote.

But there’s a complication: The N.M. Legislature and governor approved a new exemption to IPRA earlier this year that allows the spaceport greater secrecy, though how much secrecy is still unclear. That new law doesn’t apply retroactively to Haussamen’s 2017 records requests, but Lange advised the Spaceport Authority to cite that exemption instead of the Supreme Court’s trade secret rule in the future.

Then, he wrote, it will be on the Spaceport Authority to “properly articulate” why its redactions are legal.

The AG’s office did not find a violation in one additional IPRA complaint Haussamen filed. Haussamen had sought all documents that factored into an analysis that claimed the spaceport was having a positive economic impact in New Mexico — and expected to be given a trove of financial and other records. Instead, the spaceport said it had no documents to release.

Haussamen believed such records existed, and should have been released. But Lange wrote that without evidence that the Spaceport Authority “acted in bad faith or with the intent to evade its obligations under IPRA, we are unable to conclude that the authority failed to provide Mr. Haussamen with responsive records in its custody at the time of his request.”

Haussamen also filed one complaint alleging a violation of the state’s Open Meetings Act (OMA). He had requested minutes of a meeting of the Spaceport Authority’s board, which OMA requires to be ready for public inspection within 10 days. He wasn’t provided a copy of the minutes for several weeks after the meeting. Lange didn’t determine there was a violation because the Spaceport Authority told him that the minutes were ready but the staffer who prepared them was “absent” when Haussamen requested them.

Lange wrote that the explanation was “plausible” but “not entirely free from doubt.”

The Twitter question

Lange’s determination related to the Spaceport Authority’s list of blocked Twitter accounts reflects a growing need for government agencies to grapple with transparency issues in the era of social media.

Haussamen discovered in June 2017, as he was wrapping up his investigation, that the Spaceport Authority had blocked him from following its Twitter account — from seeing or responding to its tweets. He requested the complete list of Twitter accounts the agency had blocked. Such a list is accessible in the agency’s Twitter account settings and can be preserved as a screen shot, PDF or other document.

The agency unblocked Haussamen on Twitter but refused to hand over the list, saying IPRA “does not reference Twitter.”

Lange rejected that argument, writing, “if the Authority has blocked Twitter accounts, a list of those accounts is available to the Authority on twitter.com and is subject to public access under IPRA.”

“… Accordingly, the Authority must provide Mr. Haussamen with an electronic copy of its list of blocked Twitter accounts,” Lange wrote.

Whether government officials and agencies are even allowed to block other Twitter users is an open question — though one for federal courts as a First Amendment concern, not an issue for the state AG to consider in the context of IPRA. Spaceport America CEO Dan Hicks told Haussamen last year that the agency has the right to block people on social media to protect Spaceport America’s image and branding.

But the Knight First Amendment Institute sued U.S. President Donald Trump for blocking people on Twitter last year. In May of this year, a federal judge in New York ruled that Trump could not block others on Twitter, siding with the Institute’s argument that doing so amounted to unconstitutional viewpoint discrimination.

It was at least the second such ruling. A federal judge in Virginia ruled last year that a county government official violated a critic’s First Amendment rights by blocking her on Facebook.