Combining Open State Government with the Spaceport Business

Wednesday evening I had the pleasure of moderating the annual Sunshine Week panel on transparency in government, which focused on the Spaceport.

Access to public information is critical to our democracy. That’s what the Legislature said in enacting our Inspection of Public Records Act. That’s what courts consistently say in deciding IPRA cases. I agree.

Spaceport America is a public entity. But it’s success depends on luring customers and tenants. Those companies have trade secrets (protected by law) and other information they prefer competitors not see. 

 

The new Spaceport Commercial Aerospace Protection Act – called “The Spaceport Secrecy Act” by detractors – aims to balance these conflicting interests. Whether or not it strikes the right balance, it’s an interesting example of the legislative process working reasonably well.

Proponents offered a bill that insulated from IPRA “all records relating to a customer, the disclosure of which would reveal trade secrets or adversely affect proprietary interests of the [Spaceport] or a customer.” Way too broad. A huge explosion or fuel spill might “adversely affect proprietary interests.” 

 

Legislators agreed. The bill stalled. Then a substitute bill emerged for consideration. (Daniel Ivey-Soto was one key player.) The substitute bill tried to help the Spaceport without savaging our public interest in transparency. It protects “proprietary technical or business information, or information that is related to possible relocation, expansion, or operations . . . of customers, for which it is demonstrated, based on specific factual evidence, that disclosure of the information would cause substantial competitive harm to the aerospace customer.”

That requires the Agency to show a court, with “specific factual evidence” that disclosure would (not could) cause competitive harm and that the harm would be “substantial.” As a columnist and curmudgeon, do I like that? No. Not really. But when I contemplate asking for information, and suing if I get wrongly turned down, I mind it a whole lot less than the initial version. Particularly because abundant case-law says IPRA exceptions will be narrowly construed by courts, in favor of disclosure. I might have liked an explicit balancing test too; but under IPRA most courts will consider the actual public interest in specific information.

Moderating the panel was helpful. Spaceport Executive Director Dan Hicks, State Senators Bill Burt and Jeff Steinborn, NMFOG board member Tom Johnson, and Walt Rubel from the Sun-News all spoke. I had wondered, among other things, whether Hicks would admit that the final bill was tougher on the Spaceport than the original version, or try to gloss over the differences; he was frank, which I appreciated. 

 

Though attendance was down from previous years, the event shed light on a significant public issue. It was streamed live and will be telecast by KRWG. Citizens participated by asking questions.

Thanks to the NMSU Library, its staff members who helped organize this, and Dean Elizabeth Titus, and to Tim Parker, whose generous support makes this annual event possible.

Even the supper afterward was insightful – as well as fun. I still have no idea whether the Spaceport will prove a wonderful boon, as Hicks and so many political leaders predict, or will turn out a magnificent failure that blew money New Mexico could have used more wisely – as some pretty savvy friends of mine seem certain. 

 

But I see why others I respect, such as Heath Haussamen and Rubel, have viewed the thing a whole lot more positively after talking with Hicks.

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[The above column appeared this morning, Sunday, 1 April 2018, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG's website.  During the week a spoken version will air at times on KRWG and on KTAL, 101.5 FM.]