NMPolitics.net sues for release of Spaceport America records

NMPolitics.net is going to court to try to win the release of financial documents and other records the N.M. Spaceport Authority is refusing to show the public.

Haussamen Publications, Inc., which publishes NMPolitics.net, filed the lawsuit against the state agency on Friday in the Third Judicial District Court in Las Cruces. The move comes about a week after the state attorney general’s office determined that the Spaceport Authority violated the New Mexico Inspection of Public Records Act (IPRA) several times in its responses to NMPolitics.net’s efforts to investigate Spaceport America in 2017.

NMPolitics.net editor and publisher Heath Haussamen spent months examining the economic development project. The resulting journalistic series found reason for optimism about spaceport’s future but also serious transparency issues.

The information the Spaceport Authority refused to release included how much some customers are paying in rent and fees to use the facility. Without such information, fully evaluating the spaceport’s economic impact in New Mexico proved difficult, Haussamen said.

He noted that New Mexicans spent more than $220 million on the construction of Spaceport America and said they should have access to financial information that helps them decide whether that investment is paying off.

“I believe the Spaceport Authority has a legal duty to release that information,” Haussamen said. “With New Mexico’s hope of a better economic future tied to our massive investment in this project, I believe we have a duty to fight for the public’s right to these records.”

In late July, Assistant Attorney General Dylan K. Lange identified four IPRA violations in the Spaceport Authority’s interactions with Haussamen:

• 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 spaceport must be held accountable for this pattern of improper behavior,” Haussamen said.

Financial documents

Many of the documents NMPolitics.net seeks relate to the spaceport’s finances. The Spaceport Authority redacted portions of lease agreements with four of the spaceport’s five “permanent tenants” that blocked 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.

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. Lange, in his determination letter, called that a violation of IPRA and expressed skepticism that the redactions were appropriate.

“… 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.

Several state officials, including Lt. Gov. John Sanchez, a non-voting member of the spaceport’s governing board, have said the rent payments should be public. NMPolitics.net’s lawsuit asks a judge to order that the leases be released without redactions.

During his investigation Haussamen also sought all documents that factored into an analysis from Spaceport America Chief Financial Officer Zach De Gregorio claiming that the spaceport was having a positive economic impact in New Mexico. The spaceport said it had no documents to release.

Haussamen believed such records existed and should have been released. 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 a tour bus operator? “There are no more documents,” De Gregorio told Haussamen.

Didn’t De Gregorio take notes when he was interviewing business owners to gauge the spaceport’s impact? Yes, Spaceport America CEO Dan Hicks told Haussamen. 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.’”

Lange, in the determination letter from the AG’s office, 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.”

Regardless, NMPolitics.net’s lawsuit seeks the release of documents that factored into De Gregorio’s analysis.

Twitter list

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.” Haussamen responded by asking the Spaceport Authority to preserve the list of blocked accounts as it existed on the date of his request — June 28, 2017 — “as I’m seeking advice on the legality of your response.”

Lange determined that the Spaceport Authority broke the law by not releasing the list. “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,” he wrote. “… Accordingly, the Authority must provide Mr. Haussamen with an electronic copy of its list of blocked Twitter accounts.”

NMPolitics.net’s lawsuit asks a judge to order the release of the list.

Relief sought

In addition to release of the documents, NMPolitics.net’s lawsuit seeks the repayment of $290 that the AG’s office determined the Spaceport Authority inappropriately charged Haussamen for electronic copies of the lease agreements. The lawsuit also seeks attorney’s fees, costs, damages and any other relief.

A court can impose a fine of up to $100 per day that records are improperly withheld. Haussamen filed his records requests in March and June of 2017.

NMPolitics.net is represented in the lawsuit by Las Cruces attorney C.J. McElhinney. The case has been assigned to District Judge James T. Martin.

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). However, that new law doesn’t apply retroactively to Haussamen’s 2017 records requests. For purposes of the court case, the relevant law is what was in place at the time of his requests.