Spaceport Secrecy Act SB 429

The failing Spaceport got a local state senator to introduce Senate Bill 429, the Spaceport Confidential Records Act, which would cloak the Spaceport in secrecy, supposedly to attract customers.

New Mexico law already protects companies' trade secrets. This bill would protect the Spaceport's own “secrets” from its owners – you and me. The second excuse for it is to protect “cyberinfrastructure information” from potential terrorists. (Would some terrorist bomb the spaceport just to kill a few rabbits?) If this bill has any legitimate objective, it's unfortunate that someone drafted it using a meat-cleaver, rather than exercising actual thought. 

Knowing how essential governmental transparency is to our democracy, I worry about bills like this; and knowing that many citizens feel the Spaceport is an irredeemable failure, I wonder about management's motives.

The bill would bury any and all information about anyone or anything who/that provides revenue to the Spaceport.

Sorry, but I'm with the folks who feel we've bent over more than far enough for the Spaceport. 

If you're doing business with the Spaceport, you're doing business with me – and Tamie, Larry, and Bev. We have a right to know who and what you are. Maybe we don't WANT to do business with you because of your corporate conduct. Maybe we'd like to know whether the Spaceport managers, whose optimistic predictions haven't yet come close to panning out, gave you an unjustifiable sweetheart deal. Maybe we want to know if your brother-in-law is on the Spaceport Board.

We have a right to that information. Morally. Ethically. And legally, so far. I oppose this effort to obliterate that right. The context magnifies my objection. We're being asked for yet another sacrifice to the Almighty Spaceport, when many of us are not yet believers. The less say we have, and the less information we get, the more our financial contribution feels like taxation without representation. 

A host of other public entities are waiting in the wings to keep information from you and me. They'd like to keep salary information or public complaints or some pet pile of information confidential, mostly to protect their hind-parts. But certain obligations accompany the paycheck and other benefits public employees get. Transparency matters – even when it's inconvenient. Meaningful democracy requires public access to public documents.

“Cyberinfrastructure?” If there's a hole in the IPRA that would let me get information that should be secure, such as the password for detention center computers, by all means let's address it. (This bill makes no such broader effort.)

In September, management presented a rosy picture to a legislative oversight committee, without the requested secrecy. (The minutes show that a legislator stated that fencing 160 acres of Spaceport America land cost taxpayers $2 million when it should have cost only $28,000.)

On March 11, the Senate Public Affairs Committee voted 6-1 to report the bill without a recommendation. The Judiciary Committee has it now, as I write.

In a weird way, the bill reminds me of Trump's ban on immigrants and visitors from certain countries: courts that follow the law and overturn it will be “responsible” for most any future terrrorist act committed by an immigrant or visitor. With management claiming this nutty Spaceport Confidentiality Act is necessary to bring in revenue (which the Spaceport has spectacularly failed to do), opponents will now be “responsible” if the Spaceport continues to be a loser.

If proponents of this bill were representing their constituents, they'd be asking serious questions about whether or not we should pull the plug on Spaceport America. I don't know the answer, but that sure seems a more urgent question.

                                                       -30-

[The above column appeared in the Las Cruces Sun-News, this morning, Sunday, 19 March, as well as on the newspaper's website and on KRWG-TV's website, and elsewhere.  I submitted it several days ago.  The legislative session then ended, with SB429 still in committee.]

[The Legislative Finance Committee analysis concedes that “there are protections for trade secrets under New Mexico law,” but suggests that “specific protections for potential clients of Spaceport America may help increase customer solicitation.” To me, that's an admission that this thing ain't necessary. It "may help"; but customers' trade secrets are already protected, as noted in the column.]

[I always have to qualify anything I write about the Spaceport: technology can rapidly turn us in an unexpected direction, and many things given short shrift for a long time end up huge.  Edison thought that what he'd developed that led to the moving pictures was amusing, but too insignificant to bother patenting.  Serious scientists swore they'd never see man fly only a year or so before Kitty Hawk.  So maybe everything I write now will seem awfully foolish in a year or two or five or twenty.  
But as time passes, that feels increasingly like a teenager musing,  "But who knows, MAYBE there is a Santa Claus . . ."]

Maybe the wire is the $2 million fence.  

[I haven't independently verified the state senator's allegation that the cost should have been $28,000.  A sharp-eyed friend happened to notice it in the minutes.]






[Below, I've included additional material, including part of a news story and some quotes from email threads among local citizens:]

According to news reports, new Spaceport America Executive Director Dan Hicks argued that such strict confidentiality is expected in the hyper-competitive commercial space industry.  Laura Villegran, Albuquerque Journal Las Cruces Bureau Chief, reported Hicks as saying,

“Having spent 34 years in the Department of Defense, I thought secrecy was big there.  It is nothing compared to the commercial space industry.”   He reportedly argued that SB 429 could make the spaceport more competitive with new spaceports nationwide. An underling reportedly noted that business secrets are closely guarded by start-ups still in the R&D or testing phase; but it's highly unclear that those companies would be disclosing truly proprietary information to the Spaceport anyway.

Again per Ms. Villegran, Gregory Williams, president of the New Mexico Foundation for Open Government President Gregory Williams, called the bill “ a concern,” adding "In a purely private business situation, businesses can often keep information private,” he said. “But this is not purely private; this involves a lot of New Mexico taxpayer money. Anyone who wants to take our state’s money needs to be accountable.”

Williams said Spaceport needs to “convince us that the overall benefit to the public is better if we have more confidentiality.”

“But just because they are claiming they are at a business disadvantage doesn’t necessarily mean that’s the case,” he said. “They are going to have to come forward with more information to demonstrate that confidentiality has a significant impact on their business.”

[The following are quotes from communications by local citizens against SB 429:

"The argument that companies need secrecy in their arrangements with the state is a bogus one.  The only information which requires and is entitled to secrecy is proprietary data already defined and protected by law.  Although some arrangements include proprietary information, this narrowly defined information can be redacted without the need to hide the terms of arrangements as wholes.

"It is hard to imagine that secrecy rather than transparency promotes higher confidence in government or better decisions in the state interest.  It increases opportunities for mistakes and corruption.  And it flies in the face of efforts to address issues of unethical conduct."

                                                         - Michael Hays (to members of the Senate Judiciary Committee)

"Is this a joke? This bill 'protects information pertaining to spaceport authority security and cyberinfrastructure that could be used to facilitate the planning or execution of a terrorist attack.' Oh yeah there will be a terrorist attack on Spaceport America. Protection of the national infrastructure is a high priority for cybersecurity in this country. Critical infrastructure such as the national power grid, commercial financial networks, and communications networks have been successfully invaded and re-invaded from foreign and domestic attackers. However, where is cyberinfrastructure at Spaceport America. Is it protecting  the wealthy and this joyride? This is not the U.S. Army White Sands Missile Range. Please someone explain the  cyberinfrastructure at Spaceport America."

                                                 - Greg Lennes (to me and others)

"With an inactive spaceport - a "boondoggle-in-the-desert", why is this legislation necessary? The Inspection of Public Records Act makes it clear that lawyers, journalists and all other members of the public are entitled to the greatest amount of information possible about the work of their government. The Judiciary Committee should vote this SECRECY bill down. Ensuring confidentiality for the private businesses that want to use the spaceport will help, Spaceport America argued. This is a mighty poor and weak argument when the taxpayers are paying for this white elephant. There will be no public scrutiny. It is an insult to New Mexicans. VOTE NO!"

                                                   - Greg Lennes (to NM Sen. Joseph Cervantes and others)

"One of the many scandals in New Mexico's political scene is that a progressive electorate tolerates a Democratic Party apparatchik that is economically and fiscally conservative.  They stay in power by their never-ending promises to bribe businesses to relocate here (bringing good paying jobs) rather than doing the heavy lifting of making it economically attractive to to move here by building a first rate educational system, building and maintaining a modern infrastructure and creating a simplified and fair tax code."

                                            - Larry Gioannini (by email)

"As a past state government manager in a state (OR) with strong sunshine laws, I learned how important it was to the CITIZENS that they believed their government was above board. Anything less made all my (and your) job harder if not impossible. The level of distrust for government is not only unwieldy, it is actually dangerous for government employees. There is no reason to obfuscate the dealings of the spaceport for which we taxpayers are getting soaked except to cover up operational fiascos, waste, or incompetence.   Leave our sunshine laws alone and certainly don't make exceptions for a single company."
                                           - Connie Potter (to members of the NM Senate Judiciary Committee)

"SB 429, for whatever merit it may have, can only be seen as a dangerous and completely unreasonable and unneeded proposal to hide information which should be completely in the public knowledge.

"I am absolutely opposed to the State ownership of the Spaceport, but I would oppose this bill even if I favored the Spaceport.

"There is every reason to protect the valid commercial or proprietary details of systems being tested or operated at the Spaceport, and certain test results.  That is common and established practice.  But this bill takes secrecy to greater extents, without necessity, tradition, or apparent need.

"I urge you to . . . "Vote NO on [this bill] at every opportunity, and encourage your fellow legislators to do the same; and make public who generated this bill, and why - what were their real aims and objectives."

                                          - Bob Hearn [to members of the NM Senate Judiciary Committee]

 

"But this proposed law is and would be an abomination even if I supported the Spaceport."

                                           - Bob Hearn [by email]

Animal Village NM Wins IPRA Case

Reports of a $90,000 judgment against the County prompt reflections on New Mexico's Inspection of Public Records Act (IPRA). 

Animal Village NM (AVNM) Executive Director Sunny Aris showed a quiet heroism in persevering when she felt IPRA required the County to let AVNM see certain records. 

AVNM is a small dog-rescue outfit from Alamagordo that had rescued dogs from two horrendous sites in Doña Ana County in 2015. AVNM fed and cared for the dogs, took them to veterinarians, and found folks to adopt many of the dogs. But AVNM lacked important information on the dogs. In addition, AVNM questioned how well Animal Control was doing its job, when such sites continued to exist. County personnel alleged that AVNM had jumped the gun, was interfering with an investigation, and/or was making a big profit. (Some of those dogs are still in recovery at Animal Village.) The charges went national, and AVNM got a lot of hate mail. 

Ms. Aris served an IPRA request on the County. When she came to Las Cruces to inspect documents in November, 2015, many documents she suspected (or knew) existed were not included. Unsuccessful in obtaining those documents, she filed a court petition in December, 2015. After the County hired a lawyer to fight the petition, she found one too. [Full disclosure: Law Office of Peter Goodman represented AVNM.]

In January 2017, District Judge Mary Rosner issued an opinion – after four court hearings, much legal paperwork, and hundreds of lawyer hours. Judge Rosner's Final Order called the County's delivery of public records “tortured, untimely, and inadequate by any definition.” She rejected the County's many legal arguments, and stated that it shouldn't have taken such an arduous battle to get public records to a no-kill animal shelter. (Because of the long fight, most of the judgment goes to attorney fees and reimbursement of costs.)

I hasten to add that while admitting no guilt, the County has tightened up its procedures for IPRA responses, particularly those involving documents from multiple departments. While “not in full agreement with Judge Rosner's Order,” the County has not appealed. 

New Mexico's Supreme Court has rightly called IPRA essential to a democracy. It is our government. We vote. To vote wisely, we must be informed. We are entitled to the fullest possible knowledge of officials' conduct, including access to public documents. Under IPRA, when citizens request public documents, government offices must provide them. There are sensible, narrow exceptions: for example, you can't get attorney-client communications, certain documents in personnel files, or law-enforcement records that would reveal confidential sources or methods. 

The government must respond within three days. Inspection can be delayed if the documents are voluminous or hard to find; but if the government denies inspection of any documents, it must specify in writing the reasons (and identify the officials who decided to deny documents) and describe the documents generally. This gives the requester notice and helps her decide what to do. IPRA provides special damages if documents are withheld and no such writing is provided.

Importantly, IPRA allows not only actual damages (usually small) but attorney fees. That means that in a clear case even someone with limited funds like AVNM can fight injustice. 

I applaud Ms. Aris's dogged persistence. And while IPRA requests cause extra work and shouldn't be made frivolously, aggrieved citizens should know that there can be justice at the end of the day. Even a very long day.

And to remind public entities which may need reminding that New Mexico's Inspection of Public Records Act means what it says – and our capable judges will enforce it.

                                                              -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, 26 February, 2017, and also appears on the newspaper's website and KRWG-TV's website.  Here's Diana Alba Soular's Sun-News story on the judgment -- which even got picked up by some Yale Law School blog and the National Freedom of Information Coalition.] 

[This column was  harder to write than some.  I wanted to write it because of its message concerning IPRA, but did not want to write it because of my personal involvement in it.  Didn't want to brag.  (And, after all, when the law and the facts favor your client's case, a lawyer ought to be able to prevail; and I regret not being sufficiently imaginative or eloquent to convince the opposition to settle this case a year ago.)  Definitely didn't want to stick it to the County, which has now dealt with the situation in a positive way by improving procedures to prevent a recurrence and by foregoing an appeal, which would have been a silly waste of public money.  (Credit County Attorney Nelson Goodin for the improvements.  Don't know whom to credit for the wise decision not to appeal.)   Above all, did not want to seek further cases and clients.  

I wrote and sent to the Sun-News an earlier version of this column.  Although I was trying to go easy on the County, I still got too much into the weeds of the case.  Things happen in litigation that aren't pleasant; other things happen that are perfectly normal but feel unpleasant to some participants; and the whole thing is not a process I'd wish on anyone.  Avoid litigation if you reasonably and honorably can!  At any rate, I woke up one morning determined to rewrite the column to get the focus back where it belonged, on IPRA and the fact that little guys can win IPRA cases when they're in the right, even if public entities have plenty of lawyers and resources.]

[Also wanted to make clear that Animal Village NM didn't make a killing on this.  People read $90K and think that's something, but the bulk of this award went to attorney fees and to reimbursing costs paid out by Animal Village NM or by me.  I'm sure there's still a strong need for donations to help with dog-rescuing and keeping dogs in food and vet services.]

[You work on something like this because it seems the right thing to do, and you expect maybe it'll help locally; but you sure don't expect folks anywhere else to pay much attention; but someone just sent me a partial list of freedom-of-information websites mentioning the case and/or posting a link to Diana's story (although I haven't gone to all these to confirm that, and assume they didn't add any new information):

https://www.law.yale.edu/mfia/case-disclosed/fourth-estate-final-check  Yale Law School

http://www.nfoic.org/ National Freedom of Information Coalition

http://ctfog.org/past-essay-contest-winners/  Connecticut Freedom of Information Coalition

http://foift.org/court-cases/ Freedom of Inf Foundation Texas

http://kssunshine.us/resources-2/ Kansas Sunshine Coalition for Open Government

http://njfog.org/online-resources/ New Jersey Foundation for Open Government

http://www.thenewstribune.com/news/politics-government/national-politics/article133984004.html  Wa.

http://foioklahoma.org/resources/open-records-act/model-letter-for-records-requests/

Freedom of Information Oklahoma

http://wycog.nfoic.net/  Wyoming Coalition for Open Government

http://njfog.org/basics/  New Jersey Foundation Open Government

City Fights IPRA Lawsuit

Las Cruces City Government has refused to let Heath Haussamen inspect city manager applications. Under the Inspection of Public Records Act, does it have a legal leg to stand on?

Not that I can see.

Numerous New Mexico cases stress that guaranteeing public access to public records is essential in a democracy because the integrity of elections depends on an informed public. Providing such access is “an essential function” of government entities. Courts interpret IPRA broadly, to prioritize openness in government.

Two cases seem particularly relevant here: City of Farmington v. The Daily Times and Toomey v. Truth or Consequences.

Farmington concerned whether the municipality could withhold city manager applications. The court said, “No!” The court noted that if the applications weren't available, the public would have to accept officials' claims that they acted appropriately. “In this Court’s opinion, New Mexico’s policy of open government is intended to protect the public from having to rely solely on the representations of public officials that they have acted appropriately.”

Toomey concerned videotapes a third-party under a city contract made of city council meetings. Plaintiff served an IPRA request. Defendants denied it, saying the videos were in the hands of a third-party, not the city. The court essentially said that was nonsense. Public records couldn't be hidden from the public by such a dodge. Not everything a contractor ever does for a city is a public record. For example, an architectural firm's internal calculations and communications about a project it's hired to design for a city wouldn't be public records. Where the third-party is performing a governmental function, however, the documents are public records. A private entity that “contracts with the city to perform a public function is subject to IPRA.” 

What could be more clearly a governmental function than assessing applicants for the city manager position? 

Farmington makes clear that the applications are public records. Toomey shows that using a private consultant shouldn't change that fact. As the Court of Appeals said, “the dispositive question is whether the recordings of the City meetings were made on behalf of the City so as to constitute public records within the meaning of IPRA.”

 

Toomey adopted a nine-factor test for courts to use in deciding such issues.  The City, in its Response filed Thursday, argues that the “totality of factors” test supports the City here. The City notes that only some of the nine factors help Heath. But those are the most critical. (See my blog post today for further discussion.)

Full disclosure: I'm a strong believer in IPRA and I'm currently litigating an IPRA case, though not against the city and not about manager applications.

I recognize the reasons Cruces or NMSU would wish to withhold applications from prospective managers or football coaches. Almost all of those applicants are already managers or coaches (or assistants) somewhere else. Some will feel freer to apply for a new job if they can keep their current employers in the dark until they know they're leaving. 

There are often reasons officials want to keep public documents from view. Sometimes good reasons. Our Legislature has set the rules: except in certain narrow areas (such as attorney-client communications, personnel files containing opinions, ong oing investigation records that could reveal a confidential source or method) it's more important for a democracy's population to see public documents. 
 

That's the law.  I'm familiar with the cases; and a quick look at the Response suggests it's a game try but shouldn't prevail. 

 

If the Councilors want us to obey city ordinances, they oughtta set a good example.

                                                          -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 3 July 2016, and should appear presently on the newspaper's website (under "Opinion") and on the KRWG-TV website (under News-->Local Viewpoints).  I welcome questions criticism, and other civil responses here or on those sites.]

[I wrote this column because it seemed time to write it.  Then I realized the City's Response was due Friday.  I went with the column anyway, figuring that I could use this blog post to make observations concerning the City's Response. (I also had not read the Petitioner's (Heath's) Petition for Writ of Mandate prior to drafting the column.  Still haven't.)]



[The column mentions the nine-factor test stated in Toomey v. Truth or Consequences, adapted from one enunciated by Florida's Supreme Court in a Florida public records law case.  The nine factors are:
1) the level of public funding;
2) commingling of funds;
3) whether the activity was conducted on publicly owned property;
4) whether the services contracted for are an integral part of the public agency's chosen decision-making process;
5) whether the private entity is performing a governmenta function or a function which the public agency otherwise would perform;
6) the extent of the public agency's involvement with, regulation of, or control over the private entity;
7) whether the private entity was created by the public agency;
8) whether the public agency has a substantial financial interest in the private entity; and
9) for whose benefit the private entity is functioning.]


[My first reaction to the present case was that the Court of Appeals would have little trouble ordering the City to turn over the applications.  First of all, the surrounding discussion makes clear that if the private entity is performing a truly governmental function, that's the basic issue.   The court says so.
Applying the nine-factor test:  (1) the work of reviewing applications and dealing with applicants for Las Cruces City Manager was certainly paid for by Las Cruces;  (4) the services would seem integral to the decision-making process selecting a new city manager; (5) recruiting and evaluating applicants seeking to be the City Council's sole employee would sure seem "a governmental function or a function which the City would otherwise perform; and (9) the Mercer was doing this work for the benefit of the City, although one could equally say Mercer was doing this work to make a profit.
I assumed there'd be (2) no commingling of funds; I didn't know (3) how much of the activity was conducted on City property; (6) control and regulation would seem a push, in that while the City wouldn't micromanage Mercer's work, the City undoubtedly gave Mercer some direction and standards and could have terminated the Mercer contract for cause if it didn't like something; and the City (7) certainly didn't create Mercer and (8) has no financial interest in Mercer.

Thus three factors (the most important ones) support finding these are public records, and three are pretty inconclusive, while the City's best arguments are that it didn't create Mercer, and has no financial interest in Mercer, and much of the work  was done elsewhere.

Where it's so clear that this is a public function, a key part of the making of an important public decision, the documents related to that likely will be found to be public records.  (By contrast, if Heath were asking for Mercer's profit and loss statement or a list of other accounts it had handled, those likely would not be public documents unless they'd been given to city officials.)  It would be hard to read the full decision (not just the list of nine factors) and not conclude the Court of Appeals is likely to hold that these applications are public documents.  For one thing, the discussion emphasizes the public function / public decision point, not whether there was commingling of funds.  I'd guess some of those factors are there to help guide the court in a closer case, not involving such a key public function as choosing a city manager.  But I guess we'll see.

Basically: the City has stressed that unlike many other entities involved in these cases, Mercer is not a creature of the public entity it is performing work for.  But where that work is such basic public work the court should conclude that the requested documents are public too.  City residents paid for the work and will be affected by that work, and deserve to be able to see the documents.  That's the overriding theme and mandate of IPRA. As the Toomey court stressed, "We emphasize, however, that IPRA should be construed broadly to effectuate its purposes, and courts should avoid narrow definitions that would defeat the intent of the Legislature" because "access to information concerning the affairs of the government is a fundamental and necessary right of every person in this state."

Also public, although I don't know that Heath asked for them, would be contracts and correspondence showing how the City came to hire Mercer to do this work, what we are paying for it, and what guidelines were given Mercer. ]