Public Business, Private Secrets?

Can a Governmental Official Sign Away the Public’s Right to Information?

I’ve been getting this question a lot lately. As data centers and related industries expand across Texas, powerful technology companies are negotiating with cities and counties—often behind closed doors—over lucrative tax breaks, infrastructure commitments, and development agreements. Some public officials are also signing non-disclosure agreements, or NDAs, that purport to restrict the release of information to the public.

An NDA is a contract in which one or more parties agree not to disclose certain information they receive. NDAs are commonly used in private business dealings to protect trade secrets, proprietary data, negotiating positions, or other sensitive information. They may define what information is considered confidential, who may receive it, how it may be used, and how long the confidentiality obligation lasts.

Understandably, the use of NDAs in local government is raising alarms. What gives elected officials the right to withhold information from constituents? Do these NDAs have any real force? And can they be used to keep information secret from the public that the Texas Public Information Act (TPIA) would otherwise require the government to release?

Short Answer: Generally, an NDA cannot override the public’s rights under the TPIA or create a new excuse for withholding information. That does not mean every requested record must be released. Texas law protects certain information through statutes and recognized exceptions to the TPIA. But those protections exist independently of an NDA. The agreement itself does not decide what the public is allowed to know.

NDAs are Optional. Before I get too far, I want to emphasize that nothing in Texas law requires a city or a county official to sign an NDA. It’s a choice. Officials may believe agreeing to confidentiality gives them a seat at the table, reassures a prospective business prospect, or improves their chances at landing a “deal.” Whatever their reasons are their own.

As a matter of public policy, though, government should operate from transparency and value the power of public input. You would hope that governmental officials would be skeptical of private agreements that encourage secrecy or blur the public’s view. But, alas, here we are.

It’s happening all over Texas. Members of the public are encountering delays and resistance when they request records about proposed projects, and quite frankly, elected and governmental officials are being less than forthcoming. There are many reasons for this, but the purpose of this post is to help explain the distinction between an NDA and a statutory exception. Understanding this can help you cut through broad assertions of confidentiality and strengthen your case for the release of public information.

So, let’s dive in.

First, public information is extremely important. Texas law treats access to public information as essential to representative government. The Texas Public Information Act (TPIA) rests on the “fundamental philosophy” that “government is the servant and not the master of the people.” Tex. Gov’t Code § 552.001(a). They work for us; it’s not wise to hide information from your boss.

“The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.” Id. We’re entitled “at all times to complete information about the affairs of government and the official acts of public officials and employees.” Id. The purpose of disclosure is to ensure that the people retain control over the government they created. Id. Because governmental accountability depends on meaningful access to information, the Legislature directed that the Texas Public Information Act be “liberally construed in favor of granting a request for information.” Id. § 552.001(b).

So, the starting point is that public information is indeed public unless the Constitution, a statute, or a judicial decision makes it confidential. This is generally decided once a governmental body properly invokes an exception under the Texas Public Information Act. Tex. Gov’t Code §§ 552.001(b), 002, 021, 101. When a governmental body wants to withhold requested information and no previous determination authorizes it to do so, it must request a formal decision from the Attorney General Id. § 552.301(a)–(b). This request must be submitted within ten business days after receiving the request, and it must identify the applicable exceptions. Id. It must then timely submit its legal arguments and the records at issue for review. Id. § 552.301(e).

Notably, the presence of an NDA is not a stated exception to release. To be clear, this is post is not stating that the act of signing an NDA is necessarily illegal in and of itself—at least, no Texas court appears to have squarely decided that question in this context. It might be, and I reserve the right to argue that one day.

It’s more that an NDA cannot provide an independent legal basis for withholding public information because “a governmental body cannot close information simply by entering into a contract provision that prohibits disclosure.” Tex. Att’y Gen. ORD-514, at 1 (1988). As the Attorney General explained, “[a] governmental body cannot create new exceptions” that do not exist under state law. Id. Calling a document “confidential,” stamping it “proprietary,” or signing an NDA therefore does not create a new exception.

The controlling question is whether an exception established by law applies.

Exceptions to the Public Information Act. The Legislature has created several exceptions that can make records concerning an economic development project harder to obtain even without an NDA. For example, the TPIA temporarily protects information about a financial or other incentive being offered to that business prospect while negotiations are ongoing. Id. § 552.131(b). Once the governmental body and the business prospect reach an agreement, however, § 552.131(b) no longer protects information about the incentive, and the final agreement is public unless another exception applies. Id. § 552.131(c).

The TPIA also protects qualifying trade secrets and certain commercial or financial information when the third party provides the factual showing required by law. Id. § 552.110(b)–(c). When requested records may implicate a company’s proprietary interests, the governmental body must make a good-faith effort to notify the company in writing. Id. § 552.305(d). The notice must include a copy of the request and advise the company that it may submit written reasons for withholding the information. Id. § 552.305(d)(2). The company then has ten business days after receiving the notice to submit its arguments to the Attorney General. Id. § 552.305(d)(2)(B). A conclusory assertion that information is “confidential” or a “trade secret” is not enough; the third party must provide the specific factual evidence required by the exception it invokes. See id. § 552.110(b)–(c). This process gives the company an opportunity to object, but it’s not a veto over disclosure.

Neither an NDA nor a company’s objection decides the outcome. The controlling question remains whether Texas law—not a private agreement—authorizes the information to be withheld.

The unfortunate part is that this process can be prolonged and helps delay release of the information, which can be extremely frustrating. By the time you know of a potential deal, the governmental body is likely nearing its final approval. As discussed below, an attorney might be able to help you expedite the process, through litigation or otherwise.

Should governmental officials sign NDAs? As a matter of good public policy, governmental officials should not sign NDAs covering public business. Texas law already protects legitimate trade secrets, ongoing economic development negotiations, and other information the Legislature has determined should remain confidential. An NDA adds no lawful protection to that framework. Instead, it creates confusion about what must be disclosed and discourages officials and staff from acting transparently and releasing information that belongs to the public.

The costs are especially serious in economic development deals involving tax breaks and other commitments of public resources. Secrecy prevents residents from evaluating a proposal until deals have been penned and public participation is less meaningful and less likely to affect the ultimate decision.

In the interest of transparency, governmental officials should refuse blanket confidentiality agreements and tell prospective business partners at the outset that all records will be handled under the TPIA. If information qualifies for a statutory exception, Texas law provides a process for protecting it. They aren’t paid by tax dollars to withhold information from taxpayers.

What should you do if a governmental body is withholding information? Fight back. Most people don’t do it, but you have the right to argue for release. When a governmental body or third party requests an exception to release, anyone may submit written comments to the Attorney General explaining why the cited exceptions do not apply and why the requested information should be released. Tex. Gov’t Code § 552.304. Your letter should address each claimed exception separately and use the language of the statute and the facts you know to explain why the governmental body or third party has not met its burden.

Keep the TPIA’s presumption of openness at the center of the argument. The TPIA explicitly states that it be “liberally construed in favor of granting a request for information,” which means its exceptions should not be stretched beyond their terms. Id. § 552.001(b). Focus on whether the governmental body or third party has presented specific facts that satisfy each requirement of the claimed exception. A clear, focused response can identify the real points of dispute and show the Attorney General why the law requires disclosure.

If this is a particularly important release, you might also consider hiring an attorney to help. An attorney can help sharpen those arguments, identify weaknesses in the claimed exceptions, and communicate with the governmental body or third party to resolve the dispute. If the records are still withheld and the dispute cannot be resolved, litigation may also be an option. Depending on the circumstances, a requestor may seek judicial review or pursue a writ of mandamus to compel the governmental body to make public information available. Id. §§ 552.321, 324.