This afternoon the House State Affairs Committee will hear a piece of open records legislation that in my opinion would do more to reduce police and prosecutor misconduct in Texas than throwing millions of dollars at Internal Affairs investigations: Making records in closed criminal case files public.
Just like open source software is the most invulnerable to hackers, transparency in law enforcement is the cheapest, most reliable way to root out law enforcement corruption, for essentially the same reasons. (It's also the same reason that cockroaches scurry to the corners when you turn on the light.)
You hear prosecutors complain so bitterly about HB 767 you'd think it was impossible to function as an attorney when someone might later look at your work. But the bill would simply restore Texas open records law on closed files to the same standard that applied in this state for 23 years until the courts struck it down. Lots of good lawyering was done in those 23 years, and opening records after the case was done simply was never any hindrance.
It's time to restore this major gap in the Public Information Act. Something was taken away from the public in 1996 that most Texans never knew they had - the ability to exercise meaningful oversight over police and prosecutor misconduct. But even if most people didn't know this right was taken from them, it was an important and destructive loss. HB 767 is the Legislature's chance to fix it.
I'm going to the capitol to testify in State Affairs this afternoon in support of this bill on my own behalf. I prepared a little one-pager to hand out ot committee members, so I thought I'd post it here in case anyone was interested:
Support HB 767 by Dutton
Bring Back Transparency in
Texas Law Enforcement
After a court decision in 1996, the Texas legislature changed the law so that it no longer required disclosure of records in Texas criminal cases unless the case results in a conviction or deferred adjudication. For the first 23 years in the Public Information Act's existence, these records were public, but since 1996 they've been closed. HB 767 restores the original standard for closed case files.
HB 767 WOULD REINSTATE TEXAS' ORIGINAL STANDARD
The post-1996 law closes records in precisely the cases where the public most needs to be able to exercise oversight:
- Cases involving police and prosecutor misconduct
- Unsolved cases that were not pursued aggressively
- Cases where police or prosecutors decide not to pursue charges
Opening access to this information shines light on misconduct
The easiest way to sweep police or prosecutor misconduct under the rug is to close records related to closed cases. Then, all a prosecutor must do to conceal misconduct is to not prosecute the case, and nobody can ever see the potentially incriminating information.
Allows victims to see if closed, no outcome investigations were pursued aggressively
If police and prosecutors are unable to solve a crime, the family and victims often wonder if the case was pursued aggressively enough. Access to closed case files of unsolved cases would allow those families to see what was done and restore confidence in the criminal justice system.
Allows families to question findings of suicide
Sometimes when police identify a victim as a suicide, the family doesn’t find that explanation credible. Access to closed case files will help those families get closure if it was indeed suicide, and conduct further investigation if they continue to disagree with that assessment.
Will not harm victims or victims’ families
HB 767 will not endanger victims or release embarrassing or intimate information. Other provisions of the Act and other provisions of state law referenced by the Act already protect victims and witnesses personal privacy, including cases where family violence is alleged (Government Code Section 552.101).
Will not harm prosecutors' ability to prosecute
Before 1996, Texas prosecutors had already made our state among the toughest in the country on crime, all the while releasing closed case file information when requested. No one claims prosecutors or police did not do a thorough job during that long period of openness. HB 767 only makes public information which Texans were able to see for decades before our access was taken away.
“Sunlight is the best disinfectant” in the affairs of government, and opening records about closed cases both protects law enforcement's ability to prosecute cases and the public's ability to exercise oversight regarding the criminal justice system.