FOIAengine: Reporter Seeks Answers About NASA-SpaceX Relationship
SpaceX has had a good year. In June, the National Aeronautics and Space Administration (NASA) awarded SpaceX a contract valued at up to $843 million to build the spacecraft that will be used to perform the final phases of the deorbiting of the International Space Station (ISS) at the end of the decade. And last week, SpaceX’s valuation reached $350 billion.
SpaceX’s success prompted CNBC to suggest that “the space company has a near-monopoly on the U.S. satellite launch market … as its rivals have struggled to field operational rockets to compete.” This lack of SpaceX competition is leading some to investigate whether NASA has done enough to develop a more diverse space launch industry.
In late October, FedScoop investigative reporter Rebecca Heilweil submitted to NASA seven detailed Freedom of Information Act (FOIA) requests seeking a broad range of documents and communications that could provide insights into NASA’s relationship with SpaceX over the past 22 years.
The FOIA requests to NASA come amid other legal controversies for SpaceX. Among other things, the company is suing to suing to dramatically reshape the National Labor Relations Board (NLRB), arguing that the department’s administrative law judges are unconstitutional. See last week’s story in Law Street Media, “SpaceX Challenges Agencies, Government Contracts, and More.”
One of Heilweil’s requests on October 28 sought NASA documents from 2003 to 2007 related to SpaceX participation in NASA’s innovative program — known as the Commercial Orbital Transportation Services (COTS) — designed to develop, for the first time, commercial alternatives to the Space Shuttle for travel to and from the space station. Another request asked for documents related to “early tensions” in the COTS program between the first two companies chosen by NASA to participate – SpaceX and Rocketplane Kistler.
Heilweil makes clear in her requests why she is requesting this information. “My hope as a journalist is to elucidate some of the alternatives that might have existed to SpaceX and provide insight into how NASA ended up with its now highly influential supplier.” She stated that the COTS program “helped create the foundation for SpaceX’s current leadership in ISS transportation,” and she describes Rocketplane Kistler as “an early alternative to SpaceX for, potentially, providing service for NASA … and the ISS.”
SpaceX was founded by Elon Musk in 2002 with the aim “to revolutionize space technology, with the ultimate goal of enabling people to live on other planets.” It is now the world’s dominant space launch provider, but twenty years ago it was a struggling start-up.
Rocketplane Kistler was a reusable launch system firm formed in 2006 after Rocketplane Limited, Inc. acquired Kistler Aerospace, which had been operating since 1993. Telephone calls to a phone number found on the website of a Kistler successor were not answered.
The “early tensions” between SpaceX and Kistler Aerospace came to the surface in 2004 when SpaceX filed with the Government Accountability Office (GAO) a protest of a NASA sole-source contract awarded to Kistler Aerospace for pre- and post-flight data from one of its launch vehicles. SpaceX argued that NASA should have run an open competition. SpaceX won the protest, NASA withdrew the Kistler contract, and after losing their award Kistler failed to find needed financing. As a result, the company was “put on the shelf” by its majority owner.
In 2005, NASA Administrator Michael D. Griffin allocated $500 million from NASA’s budget to launch the COTS program to work with private companies in developing the capability to deliver and return cargo to and from low-Earth orbit. As interest in the program grew, a suborbital space tourism venture based in Oklahoma named Pioneer Rocketplane purchased Kistler Aerospace, renamed the company Rocketplane Kistler Inc., and pursued the COTS opportunity. In August of 2006, NASA selected Rocketplane Kistler and SpaceX as the first two commercial partners.
But the two companies experienced very different outcomes. SpaceX successfully completed its mission by docking with the space station in May 2012. NASA praised SpaceX for applying Silicon Valley strategies to develop its first launch vehicle, the Falcon 1 rocket. The company used off-the-shelf hardware, operated with a small organization, and pursued innovative design and manufacturing strategies.
While Rocketplane Kistler easily achieved its first two technical milestones, the company failed to attract the financing needed to continue development efforts, leading NASA to terminate the company’s funding in September of 2007. As a result, three years later Rocketplane Kistler filed for chapter 7 bankruptcy.
This complicated chain of events involving SpaceX and Rocketplane is difficult to untangle, but FedScoop evidently is interested in digging into it. There is no question that SpaceX’s success in the COTS program was critical to the company’s ultimate success and current standing.
SpaceX President and COO Gwynne E. Shotwell has said “we would not be the company that we are today without the support of NASA. We’d probably be limping along, trying to change the world, but limping instead of running.” NASA’s 2014 report on the COTS program, which is the primary source for our description of the SpaceX-Rocketplane Kistler relationship at that time, stated that “SpaceX has transitioned from a small startup company to an increasingly major contender in the aerospace world in large part thanks to NASA’s partnership.” Elon Musk said that “we could not have started SpaceX, nor could we have reached this point, without the help of NASA.”
FedScoop’s inquiries go far beyond the COTS story. The media outlet also submitted four requests on October 25 seeking a wide range of documents relating to all of SpaceX’s work on the International Space Station over the past decade. FedScoop’s detailed requests seek information about: (1) SpaceX’s initial work for NASA in designing a “commercial transportation vehicle” for travel to and from the ISS; (2) communications between NASA’s Office of Legislative and Intergovernmental Affairs and other key decisionmakers about the ISS and Elon Musk; (3) a new billion dollar NASA contract with SpaceX to build a “deorbit vehicle” to bring the ISS back to earth at the end of its life; and (4) communications to or from NASA Administrators Jim Bridenstine and Bill Nelson since 2021 that mention both the ISS and SpaceX or Elon Musk.
On October 30, Heilweil also requested records released by NASA in response to 26 previous FOIA requests. One was an October 2022 request by the Wall Street Journal for SpaceX agreements with NASA regarding “in-flight imagery and thermal measurement of Starship during orbital reentry” and “flight safety coordination with NASA assets.” Another Wall Street Journal request in 2022 was for a 2018 “cultural assessment study” of Boeing and SpaceX.
FOIAengine access now is available for all professional members of Investigative Reporters and Editors, a non-profit organization dedicated to improving the quality of journalism. IRE is the world’s oldest and largest association of investigative journalists. Following the federal government’s shutdown of FOIAonline.gov last year, FOIAengine is the only source for the most comprehensive, fully searchable archive of FOIA requests across dozens of federal departments and agencies. FOIAengine has more robust functionality and searching capabilities and standardizes data from different agencies to make it easier to work with. PoliScio Analytics is proud to be partnering with IRE to provide this valuable content to investigative reporters worldwide.
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Next: The latest FOIA requests to the SEC, FDA, and FTC.
Randy E. Miller, co-creator of FOIAengine, is a Washington lawyer, publisher, and former government official. He has developed several online information products and was a partner at Hogan Lovells, where he founded the firm’s Brussels office and represented clients on international regulatory matters. Miller also has served as a White House trade lawyer, Senior Legal Adviser to the U.S. Mission to the World Trade Organization, policy director to Senator Bob Dole, and adjunct professor at Georgetown University. He is a graduate of Yale and Georgetown Law. FOIAengine is a product of PoliScio Analytics (PoliScio.com), a venture specializing in U.S. political and governmental research, co-founded by Miller and Washington journalist John A. Jenkins. Learn more about FOIAengine here. Sign up here to become a trial user of FOIAengine.
Write to Randy E. Miller at randy@poliscio.com.
