Supreme Court picks at airport’s records argument

November 22, 2018

A Cheyenne attorney says Jackson Hole Airport’s professed exemption from the Wyoming Public Records Act could have broad ramifications, eliminating paper-trail transparency now thought to be required by political subdivisions around the state.

That was an opening contention posed by Bruce Moats, an open government specialist who is fighting a Teton County District Court ruling in the airport’s favor. (Disclosure: Moats occasionally represents the News&Guide.) Arguments by Moats and Holland and Hart attorney Susan Combs, representing the airport, were exchanged Nov. 14 in the Supreme Court of Wyoming.

“It’s a very important case for public access statewide,” Moats told the court’s five justices, “because potentially it could exempt from the [Wyoming] Public Records Act these special districts that are replete across the state and spend millions of dollars on behalf of the public.

“If the Jackson Hole Airport Board is right ... special districts would be exempt from the bulk of the records that are [now] available to the public,” he said. “Those would be out of reach of residents and the media.”

The case, brought by Wyoming Jet Center, stems from Jackson Hole Airport’s $26 million purchase of Jackson Hole Aviation, the fixed-based operator that manages the private, charter and corporate plane services at the airstrip 10 miles north of Town Square.

In 2017 Jet Center founder Greg Herrick proposed to compete with Jackson Hole Aviation by forming a second FBO. The airport board unanimously voted to purchase the business instead, a maneuver that fit an exemption from the Federal Aviation Administration’s general requirement to accommodate competition.

Amid the controversy, Herrick and Moats sought an array of documents, such as emails and reports about the potential purchase. When some records were withheld, it came out that the airport, which is a joint powers board, considered itself exempt from the transparency prescribed in the Wyoming Public Records Act. Instead, airport attorneys argued, the airport must abide only with a separate public records act for “special districts” that lists specific records that must be maintained.

Before the Supreme Court, the airport’s attorney Combs contended that Special District Public Records and Meetings Act, passed in 2010, was intended to ease the burden of maintaining records and strike a balance with the public’s right to know what its governments are up to.

The law requires cemetery districts, airport joint powers boards and 26 other types of special districts to give notice about public meetings, and file their records with county clerks. The act specifies that meeting minutes, audits, financial statements, election results, budgets, bylaws and more must be kept, but it does not list other records such as communications like emails.

Airport officials have said they are voluntarily committed to abiding by the 1969 Wyoming Public Records Act, though at the same time have taken steps to establish they’re not legally required to do so.

Picking at Combs’ argument, Supreme Court Justice Keith Kautz pointed out that verbiage in the special districts act suggests it was meant to be complementary to, rather than supersede, the Wyoming Public Records Act.

“The special district act — I looked — it just doesn’t have any place where you have an obligation to disclose,” Kautz said. “It says you have an obligation to keep the stuff. And then it refers back to the principal act and the public records act, I’m going to guess for the obligation to disclose.”

The subtext of Kautz’s remarks was that if the airport was correct and it answers only to the special districts act, then it wouldn’t legally have to produce any public records at all — just maintain them.

Other justices’ lines of questioning suggested skepticism about Combs and the airport’s argument.

Justice Lynne Boomgaarden asked Combs if Wyoming Public Records Act exemptions, such as for withholding personnel records, would apply to records the airport must maintain under the special districts act.

Combs affirmed that was the airport’s position, earning a rebuke from the justice.

“So it seems to me that you’re cherry-picking what’s sort of convenient for you, for exemptions to disclosure under the [Wyoming] Public Record Act,” Boomgaarden said, “but otherwise saying it doesn’t apply.”

Justice Kate Fox asked Combs to square a hypothetical posed by Moats: That using the airport’s argument, an airport managed by a city or county would be subject to the Wyoming Public Records Act, but not an airport that’s managed by both city and county under a joint powers board.

“Do you think that would be the outcome, and does that make any sense?” Fox asked Combs.

Combs said it was an “interesting question.”

“I think that we would need to go look at the statutory powers that the board would have — are they elected, do they have the power to tax?” the Holland and Hart attorney said. “If it’s truly the city, then the city is a political subdivision. But if the board is a separate legal entity, then I would submit that board is not a special district and they may not come within the [Wyoming] Public Records Act.”

Moats’ take is that the special district act is complementary to the Wyoming Public Records Act, and about keeping records and making sure they’re maintained in a space that’s accessible to the public.

Apart from the records dispute, Moats and Wyoming Jet Center are also involved in a pending lawsuit challenging the airport’s use of revenue bonds to finance the Jackson Hole Aviation acquisition. The lawsuit, also signed on to by pilots Brent Blue, Christian Anderson and Richard Sugden, caused the airport to delay its purchase, which was planned for last spring.

In his rebuttal Moats argued there was a public interest in making the airport answer to the Wyoming Public Records Act. Issues like Jackson Hole Aviation’s finances are of “vital interest,” he said.

“And of course, the Jackson airport is on public land — it’s even in a park,” Moats said. “In fact, it’s got millions of dollars in federal grants from the FAA, which is public money. There is public interest, whether somebody has the power to tax or not.”

The Supreme Court justices said they would issue a written opinion at a later date.

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