Spaceport releases some new info but ignores NMPolitics.net’s lawsuit

COMMENTARY: More than two months after NMPolitics.net sued to try to win the release of financial documents and other records being withheld by the N.M. Spaceport Authority, that state agency has failed to respond in court to our lawsuit, even though a response is required.

So on Friday, our attorney filed a motion for default judgment, which is a request that District Judge Manuel I. Arrieta set a hearing, rule in our favor and award damages and attorney’s fees.

In the meantime, the Spaceport Authority has released some of the information I sought last year as I spent months examining Spaceport America’s status. And the agency refunded a $292 fee the state’s attorney general says I was improperly charged for records.

But the agency is still withholding some information without providing an updated explanation for doing so.

Before I dig deeper into what the Spaceport Authority has released and not released, let me tell you about the court case.

Haussamen Publications, Inc., which publishes NMPolitics.net, filed our lawsuit on Aug. 3.

The Spaceport Authority had redacted portions of lease agreements with four of the spaceport’s tenants in 2017, blocking the disclosure of rent and fee information, among other things. We sought the release of unredacted lease agreements.

We also sought all documents that factored into an analysis from Spaceport America Chief Financial Officer Zach De Gregorio that claimed the spaceport was having a positive economic impact in New Mexico. The spaceport has maintained it had no documents to release.

And we sought the list of accounts that were blocked from seeing or responding to the spaceport’s tweets. That’s because, in June 2017, I discovered that the spaceport had blocked me from following its Twitter account. I requested the list of blocked accounts on June 28, 2017. When the agency denied that request, I warned it to preserve the list as it existed at the date and time of my request, as that would be the list the agency would have to release should it eventually be ordered to hand it over.

Our lawsuit came after we asked the state Attorney General’s Office for a legal opinion, and, in late July, the AG found four violations of the state’s Inspection of Public Records Act in the Spaceport Authority’s interactions with me:

• 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 the list of Twitter accounts the agency had blocked.

The Spaceport Authority’s response to our lawsuit was due in court on Sept. 10. On Sept. 6, Michael R. Bebeau, an attorney with the state’s Risk Management Division, requested that our attorney, C.J. McElhinney of Las Cruces, agree to an extension through Sept. 21. McElhinney agreed.

The state filed no response by Sept. 21. Bebeau called McElhinney on Sept. 26 and said the Spaceport Authority was contracting with a private law firm, Miller Stratvert. Further attempts to contact attorneys representing the Spaceport Authority were unsuccessful. No other attorney representing the agency contacted McElhinney. No attorney filed an appearance in court on behalf of the Spaceport Authority.

The deadline to respond came and went. The extension we granted came and went. And then, silence.

So we filed our motion for default judgment on Oct. 10.

That same day, De Gregorio, the spaceport employee who handles records requests, left me a voicemail saying he had documents to give me in response to the attorney general’s findings. My attorney emailed him, saying all communications related to the lawsuit needed to be handled by attorneys, not me and De Gregorio.

Two days later, on Friday, an envelope was dropped off at McElhinney’s office containing a letter and a thumb drive. The letter, from De Gregorio to me, is dated Sept. 13 (even though it was delivered Oct. 12). It states that the Spaceport Authority disagreed with the attorney general’s determination in our case but was releasing additional documents because “it is in the best interest of the taxpayers and the spaceport to put our disagreements behind us and comply with the recommendations in the AG’s opinion letter.” The letter doesn’t mention our lawsuit.

So what documents did De Gregorio provide? Most significantly, new copies of the four leases it redacted in 2017. The new files still contain some redactions — mostly of sections titled “security” and maps that show where at Spaceport America companies would be operating. In the SpaceX lease, there are some sections entirely blacked out, so I don’t know what else is redacted in that document.

Newly unredacted information includes how much the four companies — SpaceX, UP Aerospace, EXOS Aerospace and EnergeticX — were required to pay in rent and fees. If you want to see the rent and fee information, you can view the leases as the Spaceport Authority redacted them last year alongside the new files containing fewer redactions:

SpaceX: New file • Old file
UP Aerospace: New • Old
EXOS Aerospace: New • Old
EnergeticX: New • Old

De Gregorio also gave me a screen shot of a list of the Spaceport Authority’s blocked Twitter accounts. But while I requested — and the agency was required the provide — the list as it existed on June 28, 2017, De Gregorio instead provided a file that indicates it’s a screen shot of the list as it existed 13 months later, on July 30, 2018. And — surprise, surprise — there are no Twitter accounts on the list, not even mine, which they unblocked after I complained about being blocked last year.

My Twitter account, at least, should appear on the list. And the spaceport’s CEO, Dan Hicks, told me in 2017 that the agency had blocked other accounts as well.

So in other words, they’ve scrubbed the list. They’re still not providing the document I requested, and that they are required to provide.

If the Spaceport Authority is ignoring our lawsuit because it’s instead trying to informally resolve things, these actions won’t cut it. I contend there’s lots of additional information the agency owes the public that it’s withholding. We’re seeking attorney’s fees because my lawyer is putting lots of work into this lawsuit — some of it time spent talking to attorneys who didn’t do what they said they would.

And we’re asking Judge Arrieta to award damages. This state agency has spent hundreds of millions of dollars in public money on a gamble that a partnership with the commercial aerospace industry would build a stronger economy in southern New Mexico. This public agency has made clear with its words and actions that it wants, and believes it can get away with asserting, greater secrecy than the law allows. To top it off, this government agency is disrespecting the rules of our legal system.

Accountability laws like our state’s Inspection of Public Records Act exist to prevent situations like this, where we still haven’t been given all the information we first sought more than 18 months ago. The provision that allows a court to award damages exists to punish government agencies that act this way.

A court can impose a fine of up to $100 per day that records are improperly withheld. We’re asking Judge Arrieta to do just that. The Spaceport Authority is continuing to flagrantly disregard the public’s right to know. This can’t be allowed.

Heath Haussamen is NMPolitics.net’s editor and publisher. Agree with his opinion? Disagree? NMPolitics.net welcomes your views. Learn about submitting your own commentary here.