from the hiding-embarrassing-emails-for-the-world’s-richest-man dept

This story was originally published by the Texas Tribune and the Texas Newsroom and co-published with ProPublica. Republished under the Texas Tribune’s republish feature.

Months after fighting to keep secret the emails exchanged between Texas Gov. Greg Abbott’s office and tech billionaire Elon Musk’s companies, state officials released nearly 1,400 pages to The Texas Newsroom.

The records, however, reveal little about the two men’s relationship or Musk’s influence over state government. In fact, all but about 200 of the pages are entirely blacked out.

Of those that were readable, many were either already public or provided minimal information. They included old incorporation records for Musk’s rocket company SpaceX, a couple of agendas for the governor’s committee on aerospace and aviation, emails regarding a state grant awarded to SpaceX and an application from a then-Musk employee to sit on a state commission.

One is an invitation to happy hour. Another is a reminder of the next SpaceX launch.

The documents were provided in response to a public records request by The Texas Newsroom, which asked Abbott’s office for communications with Musk and the businessman’s employees dating back to last fall. Abbott’s and Musk’s lawyers fought their release, arguing they would reveal trade secrets, potentially “intimate and embarrassing” exchanges or confidential legal and policymaking discussions.

Abbott’s spokesperson, Andrew Mahaleris, said the governor’s office “rigorously complies with the Texas Public Information Act and releases any responsive information that is determined to not be confidential or excepted from disclosure.”

Open government experts say the limited disclosure is emblematic of a larger transparency problem in Texas. They pointed to a 2015 state Supreme Court decision that allowed companies to oppose the release of records by arguing that they contain “competitively sensitive” information. The ruling, experts said, made it harder to obtain records documenting 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 ruling. Among the most prominent examples of the ruling’s effect 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 disclosures would hurt its ability to negotiate with artists for future performances. Eventually, it was revealed that Iglesias was paid nearly half a million dollars.

The problem has been exacerbated, Leatherbury added, by the fact that the Office of the Attorney General, which referees public records disputes, does not have the power to investigate whether the records that companies want to withhold actually contain trade secrets.

“Corporations are willing to assert that information is confidential, commercial information, and more governmental bodies are willing not to second-guess the company’s assertion,” Leatherbury said. (Leatherbury has performed pro bono legal work for The Texas Newsroom.)

Musk and his companies’ representatives did not respond to questions about the records.

One of the richest people in the world, Musk has invested heavily in Texas. He’s relocated many of his businesses’ headquarters to the state and hired lobbyists who successfully pushed for several new laws that will benefit his companies.

As part of an effort to track Musk’s clout in the state Capitol, The Texas Newsroom on April 20 asked Abbott’s office for communications with employees from four of the businessman’s companies: SpaceX, car manufacturer Tesla, the 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 The Texas Newsroom paid. After the check was cashed, lawyers representing Abbott’s office and SpaceX each sought to keep the records secret.

SpaceX’s lawyer sent a letter to Texas Attorney General Ken Paxton dated June 26, saying that publicly releasing the emails would hurt its competitive advantage.

Abbott’s public information coordinator, Matthew Taylor, also asked Paxton’s office for permission to withhold the documents, arguing they included 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 consisted of “information that is intimate and embarrassing and not of legitimate concern to the public.”

Releasing the Musk emails, he said, would have a “chilling effect on the frank and open discussion necessary for the decision-making process.”

Ultimately, Paxton’s office mostly sided with Abbott and Musk. In a Aug. 11 opinion, Assistant Attorney General Erin Groff wrote that many of the documents could be withheld. Groff, however, ordered the release of some records determined to be “either not highly intimate or embarrassing” or of “legitimate public interest.”

A month later, the governor’s office released 1,374 pages of records, the vast majority of which were completely redacted.

Some records included a note that appeared to explain why. A note on page 401, for example, cited the exemption for competitive bidding records for 974 redacted pages. Names and emails of Musk’s employees were also removed.

“The fact that a governmental body can redact more than 1,000 pages of documents that are directly related to a major business’s activities in Texas is certainly problematic,” said Reid Pillifant, an attorney specializing in public records and media law. (Pillifant has represented a coalition of media outlets, including ProPublica and The Texas Tribune, in lawsuits seeking the release of public information related to the May 2022 mass shooting at an Uvalde elementary school.)

He and other experts said such hurdles are becoming more common as legislation and court decisions have weakened the state’s public records laws.

Four years after the 2015 Supreme Court decision, legislators passed a new law that was meant to ensure the release of basic information about government deals with private businesses. But open government experts said the law did not go far enough to restore transparency, adding that some local governments are still objecting to the release of contract information.

Moreover, lawmakers continue to add carve-outs to what qualifies as public information every legislative session. Just this year, for example, legislators added the following exceptions to public records and open meetings laws: information relating to how government entities detect and deter fraud and discussions during public government meetings about certain military and aerospace issues.

Even with the increasing challenges of accessing public records, Leatherbury and Pillifant were stumped by the governor’s decision to release thousands of pages only to black them out fully. Leatherbury said that the governor’s office may have wanted to show the volume of records responsive to the request.

“They wanted you to see what little you could get in the context of the entire document, even though that’s kind of meaningless,” he said.

The Texas Newsroom has asked the Office of the Attorney General to reconsider its decision and order the release of the Musk emails. There is little other recourse to challenge the outcome.

If a member of the public believes a government agency is violating the law, they can try to sue. But the experts noted that a recent Texas Supreme Court decision made it more difficult to enforce the public records law against the governor and other executive officers. Now, Leatherbury said, it’s not clear how challenging such a records decision would work.

“Every Texas citizen should care about access to these kinds of records because they shed light on how our public officials are making big decisions that affect the land where people live and how their taxpayer dollars are being spent,” Pillifant said.

Lauren McGaughy is a journalist with The Texas Newsroom, a collaboration among NPR and the public radio stations in Texas. She is based at KUT News in Austin. Reach her at lmcgaughy@kut.org. Sign up for KUT newsletters.

Filed Under: elon musk, foia, greg abbott, ken paxton, open records, redactions, secrecy, texas Companies: spacex, tesla, x