This article is co-published ProPublica And Texas Tribune As part of an initiative to report on how electricity is used in Texas.
Do you have something you’d like us to check out? Email us at tips@kut.org.
Months after a battle to keep secret emails exchanged between Texas Gov. Greg Abbott’s office and tech billionaire Elon Musk’s companies, state officials released nearly 1,400 pages to Texas newsrooms.
However, the records reveal little about the two men’s relationship or Musk’s influence on state government. In fact, all but about 200 pages have gone completely black.
Of those that were readable, many were either already public or provided minimal information. They included old incorporation records of Musk’s rocket company SpaceX, some agendas for the governor’s committee on aerospace and aviation, emails about state grants awarded to SpaceX and an application by a then-Musk employee to sit on the state commission.
One is an invitation to an auspicious time. The second reminds of the next SpaceX launch.
The documents were provided in response to a public records request from Texas Newsroom, which asked Abbott’s office for communications with Musk and the businessman’s staff last fall. Lawyers for Abbott and Musk fought for their release, arguing they would expose trade secrets, potentially “intimate and embarrassing” exchanges or confidential legal and policymaking discussions.
Abbott’s spokesman, Andrew Mahleris, said the governor’s office “strictly follows the Texas Public Information Act and releases any reactive information that is determined not to be confidential or exempt from disclosure.”
Open government experts say the limited disclosure is symptomatic of a larger transparency problem in Texas. He pointed to a 2015 state Supreme Court decision that allowed companies to oppose the release of records by arguing that they contained “competitively sensitive” information. Experts said the decision made it difficult to obtain documentary records of interactions between governments and private companies.
Tom Leatherbury, who directs the First Amendment Clinic at Southern Methodist University’s Dedman School of Law, said companies took advantage of the decision. Among the most prominent examples of the ruling’s impact on transparency was McAllen’s refusal to disclose how much money was spent to lure pop star Enrique Iglesias to the city for a concert. The city argued that such disclosure would harm its ability to negotiate with artists for future performances. Eventually, it was revealed that Iglesias was paid nearly half a million dollars.
The problem is exacerbated by the fact that the attorney general’s office, which refers public records disputes, doesn’t have the power to investigate whether the records companies want to withhold actually contain trade secrets, Leatherbury said.
“Corporations are willing to claim that information is confidential, commercial information, and more government bodies do not want to doubt a company’s claim,” Leatherbury said. (Leatherbury has done pro bono legal work for Texas newsrooms.)
Representatives for Musk and his companies did not respond to questions on the record.
Musk, one of the richest people in the world, has invested heavily in Texas. He has moved the headquarters of many of his businesses to the state and hired lobbyists who have successfully pushed many new laws that would benefit his companies.
As part of an effort to keep an eye on Musk’s clout at the state Capitol, Texas Newsroom on April 20 asked Abbott’s office for communications with employees of four of the businessman’s companies: SpaceX, carmaker Tesla, social media site X and Neuralink, which specializes in brain nanotechnology.
The governor’s office said it would cost $244.64 to review the documents, which Texas Newsroom paid for. After the checks were cashed, Abbott’s office and lawyers representing SpaceX sought to keep the records secret.
SpaceX lawyers sent a letter to Texas Attorney General Ken Paxton on June 26, saying publicly releasing the emails would harm its competitive advantage.
Abbott’s public information coordinator, Matthew Taylor, also asked for permission to withhold documents from Paxton’s office, arguing that they include private exchanges with lawyers, details about policymaking decisions and information that would reveal how the state entices companies to invest here. Taylor said some of the records were protected under an exception to public records laws known as “common law privacy” because they included “information that is intimate and embarrassing and not a matter of legitimate concern to the public.”
Releasing the Musk emails, he said, would have a “chilling effect on the frank and open discussion needed for the decision-making process.”
Ultimately, Paxton’s office mostly sided with Abbott and Musk. In an August 11 opinion, Assistant Attorney General Erin Groff wrote that many of the documents could be withheld. However, Groff ordered the release of certain records determined to be “not either excessively intimate or embarrassing” or of “legitimate public interest.”
A month later, the Governor’s office released 1,374 pages of records, most of which were completely redacted.
Some records included a note explaining why. For example, a note on page 401 cites an exemption for competitive bid records for 974 edited pages. The names and emails of Musk’s employees were also removed.
“The fact that a government body can redact over 1,000 pages of documents directly related to the activities of a major business in Texas is certainly problematic,” said Reed Pillifant, an attorney who specializes in public records and media law.
He and other experts said such barriers are becoming more common as legislation and court decisions weaken state public records laws.
Four years after the 2015 Supreme Court decision, legislators passed a new law aimed at ensuring the release of basic information about government deals with private businesses. But open government experts said the law does not go far enough to restore transparency, adding that some local governments still object to releasing contract information.
Additionally, lawmakers continue to add carveouts that qualify as public notices every legislative session. For example, this year, legislators added the following exceptions to public records and open meetings laws: information related to how government entities detect and prevent fraud and information discussed during public government meetings about certain military and aerospace issues.
Even with the growing challenges of accessing public records, Leatherbury and Pilliphant were stunned by the Governor’s decision to simply black out thousands of pages entirely. Leatherbury said the governor’s office would like to see the amount of records requested.
“They wanted you to see how much you could find in the context of the whole document, even though it’s kind of meaningless,” he said.
Texas Newsroom has asked the Attorney General’s Office to reconsider its decision and order the release of the Musk emails. There is no other way to challenge the result.
If a member of the public feels that a government agency is violating the law, they may try to sue. But experts said a recent Texas Supreme Court decision makes it more difficult to enforce the public records law against the governor and other executive officials. Now, Leatherbury said, it’s unclear how challenging such a records decision would be.
“Every Texas citizen should care about access to these types of records because they shed light on how our public officials are making major decisions that affect the lands where people live and how their taxpayer dollars are being spent,” Pilliphant said.
Lauren McGaughey is a journalist Texas News RoomA collaboration between NPR and public radio stations in Texas. He is based at KUT News in Austin. reach it lmcgaughy@kut.orgsign up for KUT Newspapers,