Monday, November 02, 2009

AG thwarting transparency on justice matters

I'm incredibly disappointed at recent trends developing over at the Texas Attorney General's Open Records division. For the first several years after Greg Abbott became Texas AG, he was a staunch open government advocate - much better, frankly, than either John Cornyn or Dan Morales before him. Lately though, on criminal justice matters, the Texas AG has been issuing decisions that fly in the face of the plain language of the Public Information Act.

An excellent example can be found in an op ed this morning in the Houston Chronicle from Texas Appleseed's legal director complaining that Abbott's office ruled against forcing school districts to disclose use of force policies for police officers they employ. Writes Deborah Fowler:
many parents may be surprised to learn that campus police officers in some Texas school districts are using tasers, pepper spray and other forms of restraint to handle these types of incidents. At Manor High School north of Austin, 12 students were treated for exposure to pepper spray last week after police used the spray to break up fights. Last April, six students at a Dallas high school were hospitalized and the school evacuated when pepper spray, used to break up a fight between two students, got into the school's ventilation system.

Two months earlier, some Edinburg school board members expressed surprise that a school district police officer was allowed to keep his job after video showed him dragging a sixth grade student by handcuffs.

Can it happen in your child's school? Answering that question just got harder with the recent release of brief opinion letters by Texas Attorney General Greg Abbott supporting efforts by Spring Branch ISD and San Antonio ISD to keep their policing policy off limits to the public — no explanation given.

There's just no excuse for keeping these records from the public. The law enforcement exception to the Public Information Act simply doesn't allow police departments to keep use of force policies secret, whether or not the officers work for a school. Information about individual incidents may be another matter, depending on the circumstances, but the policies are public records, and should be.

Appleseed should sue to obtain these documents - this is a terrible precedent to set.

Similarly, Abbott is helping Governor Perry keep secret memoranda related to the Todd Willingham execution, even though he approved release of the same documents related to Gov. George W. Bush in 2003. The Houston Chronicle is suing to gain access to those documents.

One of the downsides of the decline of daily newspapers over the last 20 years is that fewer entities out there have resources to sue over open records when the Attorney General makes politicized rulings like these that don't comply with the act. Most individuals don't have the means to take on the government in an extended legal fight. That means nonprofits like Texas Appleseed need to pick up the slack or there won't be any institutional players out there protecting the public's right to know.

This isn't a partisan issue: When the last Democratic AG was in power, Dan Morales, he was much worse than Abbott on open government. In general, those in power would prefer that us plebians can't know what they're doing and why - it's always been thus no matter which party is in charge. That's why, IMO, stewardship of the Public Information Act is arguably the single most important duty of the Texas Attorney General. Abbott risks tarnishing his legacy on transparency with these recent decisions, not to mention setting bad precedents that could end up sticking when requestors don't have resources to sue for the records.


ckikerintulia said...

While this should not be a partisan issue, it is fair game as an election issue. And I hope Barbara Ann Radnofsky uses it as such in the 2010 AG race. She is an able person running uphill as a Democrat in Texas in a statewide race. She has a paid Grits ad just to the right of this blog.

Deb said...

I requested Georgetown PD's use of force policy in July of this year, and after much haggling with the AG, they just released a redacted version to me a few days ago. The AG's ruling read to me as if they could have kept the whole thing from me though. This is definitely a troublesome trend.

Deb said...

Barbara's not the only one in the race that would take this issue on (at least I hope she would):

Gritsforbreakfast said...

Deb, perhaps if Appleseed sues and gets some better precedent set, you can try again later. Their policies should be public. Do you recall what exception to the Public Information Act they used to withhold information?

Anonymous said...

What's new?

Jim Mattox OR Decision 531
October 5, 1989


Section 3(a)(8) of the Open Records Act authorizes the San
Antonio Police Department to withhold the portions of its "Use of
Force" procedures prepared for its officers that state detailed
guidelines on the use of force. The portions of the procedures
which restate generally known common-law rules, constitutional
limitations, or Penal Code provisions are open to the public.

General Mattox was a democrat too!

By the way, Genereal Abbot has rules on other requests for use of force policies that some of the iformation was not excepted from PIA because the record holder could not support how release of the information would interfere with law enforcement.

Your only getting a part of the story from this news report.

Go to the Ag's website an see how previous requests have been ruled on and see how they conflict with this news story.

Anonymous said...

Has anyone done a PIA request to the FBI for their Tulia investigation? The results would shock the followers of this blog....

Gritsforbreakfast said...

4:16, Texas law does not allow withholding information because it "interferes with law enforcement." That's my beef - the AG isn't following the plain text of 552.108, which only allows withholding the information if it would "interfere with the detection, investigation, or prosecution of crime."

Use of force polices have zero to do with "detection, investigation or prosecution."

Anonymous said...

I understand your frustration. I was just passing on information that General Abbott is not the only AG throughout Texas history who ruled in a similar fashion.

It's interesrtinr that Abbott and other AG's have made past rulings that some portions of the use of force policies are excepted while other portions are not.

As a retired law enforcement officer, I see no reason why any any portion of an agencies use of force policy would be excepted under Open Records.

ckikerintulia said...

anon 11/02 8:08, why do you think the results of FBI investigation of Tulia would shock the readers of this blog?

Deb said...

Grits, it probably won't surprise you to know GPD cites just that - 552.108 -section (b)(1)- to defend redaction of some of their policy. It's a long-winded letter I'll forward you by email as it won't copy out of .pdf.

And yes, hopefully the lawsuit will help.

Deb said...

Re: the AG opinion matter, to sum up their letter, it states that information about use of force could be used by criminals to anticipate police actions.

So yeah, find me a criminal that's done open records requests to get policies to 'better plan' their criminal activity and I'll buy that.

Gritsforbreakfast said...

Thanks Deb,

Of course, saying the information "could be used by criminals" still doesn't tell us what use of force policies have to do with "detection, investigation or prosecution" of crime. Those three things are specific activities performed by police - they have nothing to do with what criminals may or may not do nor how arrests are conducted. The AG gave you a political position about what the law SHOULD be, not a legitimate interpretation of 552.108 as it's currently written.