NM Spaceport dilemma: Privacy vs. transparency

Copyright © 2018 Albuquerque Journal

Spaceport America is looking to other states for guidance as it seeks to make more information at the southern New Mexico launch site confidential.

“We knew that Florida and Virginia had very strong and broad protections for companies that go to their spaceports,” said Spaceport America CEO Daniel Hicks in a phone interview.

Hicks was in Santa Fe on Friday to meet with lawmakers about a bill that would maintain the privacy of companies that use the taxpayer-funded facility.

“We want them to have that right just as they would if they were not on state land,” he said.

States that fund spaceports are faced with balancing the public’s right to know about operations at a publicly funded site with the privacy needs of companies in the commercial space race.

“Companies if they have a choice are going to go where they’re protected,” Hicks said.

Senate President Pro Tem Mary Kay Papen, D-Las Cruces, is one of the sponsors of the legislation (SB 98), which is supported by Gov. Susana Martinez. The bill is scheduled to come before the Senate Public Affairs Committee on Tuesday.

Under the bill, cyberinfrastructure and security information would be considered confidential and thereby exempt from the provisions of the state Inspection of Public Records Act. The same would be true of “customer information,” unless the customer notifies the New Mexico Space Authority that the records do not contain “sensitive, proprietary or confidential information.”

The New Mexico Foundation for Open Government is concerned the legislation is too sweeping.

“Secrecy should be a rare exception, but we also understand there’s a lot of pressure for making the facility successful economically,” said Peter St. Cyr, executive director of the foundation.

Virginia model

New Mexico is currently modeling its legislation after the Virginia Commercial Space Flight Authority, which offers broad privacy protections for companies that use that state’s facilities.

“Other states looking to develop spaceports are asking for copies of our legislation and believe we are doing it right and making it friendly for launch customers,” said Dale Nash, CEO and executive director of Virginia Space, which operates the Mid-Atlantic Regional Spaceport.

Virgina’s statute allows the space authority to decide “whether public disclosure would adversely affect the financial interest or bargaining position of the Authority or private entity.”

“If you’re in the space business, sometimes it is rocket science and there is a clear expectation that their proprietary information will be treated as such,” Nash said.

But Space Florida operates under tougher open government rules.

“We put everything that we can up on the website to ensure we have full transparency into what we’re doing,” said Space Florida President Frank DiBello.

That information includes contracts, employee salaries, email traffic and background on a particular deal.

The space agency offers companies confidentiality “if they mark something provided to us as business sensitive or business confidential or a trade secret which would damage their competitive posture or business situation,” DiBello said.

He said that is normally covered as part of a nondisclosure agreement or NDA.

“It’s not blanket under any circumstances. And we tell them when we put the NDA in place,” DiBello said.

Other states are relying on existing freedom of information laws as they develop their fledgling space industry.

In Texas, three designated local space authorities get money from the state’s Space Trust Fund and must comply with open government rules. If they want to keep something confidential, the attorney general decides on a case-by-case basis.

Sometimes different state and local laws pose a challenge for companies, said Steve Howard, project leader for Spaceport Camden in Georgia, which is seeking a Federal Aviation Administration launch license to begin operations.

“We’re kind of the new kid on the block,” said Howard, who also serves on the board of directors of the Commercial Spaceflight Federation.

“At the end of the day, it’s taxpayer dollars and you’ve got to find a way to be as transparent as you can. At the same time, there’s proprietary information that you’re obligated to as well.”

Big money at stake

New Mexico’s spaceport was built in a remote area near Truth or Consequences with $220 million in taxpayer dollars approved by the state and voters in Doña Ana and Sierra counties. For the coming budget year, the Spaceport Authority has asked the Legislature to increase its base funding from about $375,000 to $1 million.

Hicks said he “believes strongly in a sunshine portal” that discloses how state funds are spent at the facility, but Spaceport America needs to maintain the confidentiality of launch companies.

“We’re not trying to be secretive with taxpayer dollars,” he said.

Hicks and members of the New Mexico Foundation for Open government met on Friday to discuss the bill.

“At this point we still think the bill is too broad and we want to see if there’s a way to narrow the scope of it,” said St. Cyr. Hicks said he would not characterize any changes as narrowing the scope but did see an opportunity to make changes. “We’re working with them to come up with a better piece of legislation,” he said.