House to consider Driver bill closing DPS misconduct records

The Texas House today will hear on secon reading HB 1422 by Driver, which would close most records about officer misconduct at the Department of Public Safety. I can honestly say I've been arguing with law enforcement at various levels over precisely these records since the mid-'90s; Grits discussed the bill previously here. Rather than repeat myself, the House Research Organization's bill analysis (pdf) contains an excellent summary of major concerns with the legislation:

The ability to access open records and other information about public employees is critical to democratic governance. The Public Information Act states that public servants do not have the privilege of determining what the people ought to know and what ought to be kept secret. Any erosion of the public’s ability to access information about public servants, including law enforcement officers, should be permitted only if absolutely necessary for the maintenance of law and order. CSHB 1422 would deny the release of important records that might be germane to public investigations or reporting but were not egregious enough to fit in the bill’s narrow definition of “disciplinary action.”

Complaints do not always result in discharge, suspension, or demotion. Frequently, sustained complaints lead to some lesser form of punishment, such as a written reprimand, forced reassignment, mandatory counseling, restricted overtime, or other results that do not technically qualify as disciplinary action. The bill summarily would exclude these documents that could be relevant to the purpose of an open records request.

The only real recourse the bill would provide to acquire personnel documents that were not specifically listed as subject to release would be a court subpoena or a discovery order. This would place a lot of power in the hands of courts to decide what documents were relevant to a case. It also would provide very limited options for public information requests conducted as part of investigative reporting or other legitimate purposes not directly related to court proceedings. Important information about an officer’s professional history would be denied with no clear means of gaining access except by the officer’s written consent , which he or she would have little incentive to grant.

Civil service agreements under Local Government Code, ch. 143 require a public vote to be adopted. A public vote in this case is an expression of popular will regarding what types of information the public deems it should be able to access. CSHB 1422 would codify an important restriction on public information by means of a statutory amendment. It would establish no process enabling the public to support or refute a restriction on the accessibility of information.

CSHB 1422 would establish restrictions on access to public information that are not sufficiently warranted by circumstance. The vast majority of municipal and county law enforcement departments in Texas — more than 2,400 in total — do not have civil service agreements. Only 73 municipalities have records restriction policies in place through civil service agreements, and many of these were established before the restrictions on personnel records were added. The restrictions proposed in CSHB 1422 would apply only to DPS commissioned officers. If protection from public acces to records were really so important, then the restrictions should apply to all other state enforcement officers, and
perhaps to all state employees.

Also see HRO's summary for proponents arguments, which to my mind amount to, "We're special, don't hold us accountable." The bill would not "curtail" the public's access to information, say proponents, only "restrict" it. Huh?

UPDATE: Okay, we might have a horse race on this one! Chairman Driver moved to postpone second reading of the bill on the House floor until a time certain at 9 a.m. Monday, April 23. That usually means other members expressed concerns about the bill and the author chose to negotiate rather than risk a floor fight. If you oppose HB 1422, now would be the time to contact your state representative and let them know - House members all have to decide how to vote on it between now and Monday morning.