Rio Grande Valley groups fight to keep SpaceX non-disclosure agreements private
The world watched Thursday as the SpaceX rocket Starship/Superheavy, a vehicle built to one day deliver the materials for colonization on Mars, failed to separate from its 33-engine Super Heavy booster. Starship exploded in mid-air miles above Boca Chica Beach and federally protected refuge lands.
SpaceX has drawn ire from residents troubled by skyrocketing housing costs, blocked access to public lands, and launch-related safety and environmental concerns. The seemingly opaque relationships between local officials and Elon Musk’s companies have also produced criticism.
Texas Public Information Act (TPIA) requests reveal that not only have public entities in Cameron County signed non-disclosure agreements (NDAs) with SpaceX, but those entities have also sought to keep those NDAs private despite ongoing relationships with the company.
Two NDAs, one signed by the University of Texas Rio Grande Valley in April 2020 and another by the Brownsville Public Utilities Board (BPUB) in March 2017, were released only after the Office of the Attorney General (OAG) in Texas ordered them to become public.
The city of Brownsville is currently fighting the release of any SpaceX-related NDAs. Cameron County previously acknowledged the existence of an NDA with SpaceX. However, that NDA was never released and has since disappeared.
Copies of NDAs that have been released show the agreements prohibit the disclosure of information deemed confidential by SpaceX. There is an exception in the documents that limits the confidentiality to only “the extent required by law.”
However, the signees are required to notify SpaceX prior to the release of information to allow opportunity for SpaceX to “obtain a protective order.”
All public entities involved initially declined to release the records upon public request and instead sought rulings from the OAG to block their release. That request generally extends the time it takes to access public records by 45 days and is not required under TPIA.
Governments may seek an OAG opinion only if they believe an exception to the act applies.
Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, said this indicates transparency issues.
The NDAs contradict TPIA and “undermine taxpayers’ right to know how their money is spent,” she said. “This knee-jerk behavior of sending information requests to the attorney general without releasing what is obviously public is one reason that the agency is overloaded.”
In Brownsville, NDAs have been withheld in the past.
The Brownsville Public Utilities Board, which contracts with SpaceX for water rights, signed an NDA with SpaceX on March 1, 2017. Notably, BPUB fought requests for copies of those contracts for months despite TPIA mandating the release of certain portions, such as line items and pricing.
The city of Brownsville is currently fighting a third request for any NDAs signed with SpaceX, the Musk Foundation, or The Boring Company. City officials have sought OAG opinions arguing against the release of potential NDAs throughout each request, but have not explicitly acknowledged whether any NDAs exist.
The state has allowed the city to withhold potential NDAs due to ongoing development negotiations with an unnamed company involved in the aerospace industry. Negotiations may include “tax and/or financial incentives,” according to a letter the city wrote to the OAG in June 2022.
Cameron County, responsible for overseeing SpaceX-related road closures, first acknowledged the existence of an NDA with the company in a May 2021 letter to the OAG.
The agency ultimately ruled the document was not releasable due to a pending lawsuit. In response to a second request filed after the lawsuit’s dismissal, the county claimed that no NDAs exist. Cameron County did not respond to TPR's requests for clarification.
Andrew Case is senior counsel at LatinoJustice PRLDEF, a civil rights organization investigating SpaceX-related transparency concerns in Cameron County.
Case said it’s “extremely unusual” for public entities to have NDAs with a private company, particularly one that operates on government contracts like SpaceX.
“These facts suggest the potential for favoritism towards the company by the public entity, which we continue to investigate,” Case said.
As it turns out, the prevalence of NDAs is not unique to SpaceX, but mirrors a pattern journalists have noticed while covering Elon Musk.
Edward Niedermeyer, an author and analyst who has covered Musk’s Tesla extensively, said the auto company has “a long history of resisting transparency, both on its own and in partnership with government agencies.”
“Tesla is not only a prolific user of non-disclosure agreements to muzzle its employees, but has also been caught using these agreements to prevent its customers from reporting defects to regulators,” Niedermeyer said. “At the federal level, Tesla regularly resists FOIA requests with incredibly broad confidentiality requests.”
Cameron County’s transparency issues extend beyond NDAs.
The county’s 2014 tax abatement agreement with SpaceX contains a provision that appears to directly contradict TPIA by prohibiting the release of “all proprietary and confidential information,” “non-proprietary or non-confidential information,” and “any other information provided by the company to the county” pursuant to the agreement.
The provision also requires the county to seek an OAG opinion in the event of a public records request, a clause that appears to negate the process laid out in Texas’ public records law.
Shannon emphasized that private companies aren’t allowed to dictate the release of public records.
Freedom of Information Foundation of Texas and other transparency advocates in the Texas Sunshine Coalition are backing SB 680 and HB 2492, which Shannon said would help clarify “that a private contractor doesn’t call the shots on release of obvious public information.”
“It’s not up to SpaceX or any other company to tell a government it must send all contracting information requests about the company to the attorney general’s office for a ruling,” Shannon said.