The Spaceport wants the ability to keep all sorts of information secret, including the identities of commercial space companies doing business there.
Las Cruces Sun-News by Heath Haussamen
About this series: This article is part of an NMPolitics.net series examining Spaceport America’s impact on New Mexico’s economy and future. A decade ago, the state and local voters in Doña Ana and Sierra counties approved public funding to build the facility on the promise of Virgin Galactic flying paying customers into space from southern New Mexico and elected officials pledging thousands of new jobs in the tech and tourism sectors. We spent months investigating where things stand today.
You don’t have a right to know how much money companies that do business at Spaceport America pay to use the publicly owned facility, officials there say.
In fact, the spaceport wants the ability to keep all sorts of information secret, including the identities of commercial space companies doing business there.
The growing commercial space industry is hypercompetitive. Publicly releasing rent payments, lease agreements and other information harms the spaceport’s efforts to recruit companies, New Mexico Spaceport Authority CEO Dan Hicks says — and that makes it more challenging to grow the spaceport and build a stronger economy in southern New Mexico.
That’s a controversial stance in a poor state that has invested more than $220 million in Spaceport America — a state whose law intends that the public be given access to “the greatest possible information regarding the affairs of government,” which it calls “an essential function of a representative government.”
. . . .
Though they unsuccessfully sought legislation earlier this year to protect rent payments from public disclosure, the spaceport now claims it already has that right. In response to a formal request under the state’s Inspection of Public Records Act from NMPolitics.net, the Spaceport Authority released lease agreements with five commercial space companies — Virgin Galactic, SpaceX, UP Aerospace, EXOS Aerospace and EnergeticX — but blacked out rent payment and other information in four of those leases.
. . . .
To justify redacting portions of the lease agreements, the Spaceport Authority’s general counsel, Melissa Kemper Force, cited the provision in IPRA that allows withholding information “as otherwise provided by law,” then pointed to a New Mexico Supreme Court rule of evidence that states, “a person or entity owning a trade secret has a privilege to refuse to disclose, or to prevent others from disclosing, the trade secret.”
But do evidence rules for the judicial branch apply to an executive branch agency’s response to a records request? The rules state that they “govern proceedings in the courts of the State of New Mexico.”
Peter St. Cyr, executive director of the New Mexico Foundation for Open Government, took issue with the redactions. The Spaceport Authority, after unsuccessfully seeking legislative approval to withhold certain information, is now acting as if the Legislature gave its approval, St. Cyr charged. He said the agency can’t “stubbornly withhold information on their own whim” and urged the release of all information NMPolitics.net has requested.
“They need to stop imposing their own secrecy rules and rely on the Legislature to determine what can be put in a bottom desk drawer under lock and key,” St. Cyr said.
Whether state law protects, or should protect, spaceport trade secrets isn’t the only question. The other is what constitutes a trade secret. Does it include rent payments?
Force cited the state’s Uniform Trade Secrets Act. It defines such secrets as “information, including a formula, pattern, compilation, program, device, method, technique or process” that “derives independent economic value” from being secret and “is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”
That law doesn’t mention rent payments. Papen said such payments “certainly shouldn’t be a trade secret.”
. . . .
No New Mexico officials interviewed for this article, other than spaceport employees, said the spaceport should be able to keep rent payments secret.
In at least two other states, officials believe they are allowed such secrecy. The state agency that runs Florida’s commercial space program can withhold rent information “if there’s a compelling reason,” asserted Dale Ketcham, Space Florida’s chief of strategic alliances. In some instances, Ketcham said, space companies don’t want competitors to know what they’re doing, and the amount of rent payments might provide clues.
But Barbara Petersen, president of the Florida First Amendment Foundation, doesn’t believe that state’s law protecting trade secrets applies to rent payments. “Any assertion that such information should be protected would undoubtedly be challenged in court,” Petersen said.
Virginia law allows secrecy surrounding space company trade secrets and information “relating to rate structures” if disclosure would “adversely affect the financial interest or bargaining position of the state agency.”
Megan Rhyne with the Virginia Coalition for Open Government said SpaceX “essentially said they wouldn’t come to Virginia without the exemption.” Rhyne said she isn’t sure the law in Virginia, home to the Mid-Atlantic Regional Spaceport, protects rent payments from public disclosure. But, she said, there’s “certainly an argument for it.” [READ MORE]