AG says government needn't tell public when it will use force on their children

Texas Appleseed is suing to force school districts to make their use of force policies public, according to an op-ed by boardmember Scott Fletcher in the San Antonio Express News, which opens:

Until an incident happens at school, most parents of school-age children are unaware that school police officers in many Texas school districts can use pepper spray or a Taser to break up a student fight or get control of a behavioral incident at school.

When it does happen, many parents are shocked that school police officers would use the same tools to subdue students as they would suspects in a street crime. However, not every school district in Texas will share its “use of force” policy with parents — and the public interest law center Texas Appleseed is going to court to change that.

At the heart of the issue is parents' right to know what types of force could potentially be used by officers at school and to have an opportunity to shape that policy, which can vary widely among school districts. Some districts allow police officers to use Tasers, pepper spray, trained dogs, batons and certain types of restraints, and others prohibit some or all of these options.

As a growing number of media headlines attest, pepper spray and Tasers are finding their way into our public schools. Yet, there are documented risks associated with using them on children, particularly those with asthma or other health conditions. When applied in a school setting, pepper spray has been known to cause severe reactions, in one instance sending several Texas students (including innocent bystanders) to a hospital after the officer's pepper spray got into the school ventilation system.

Fortunately, the majority of Texas school districts asked to produce their “use of force” policies did so — and some even posted them on their school websites. Others like San Antonio, Spring Branch and Galveston ISDs are doing their best to keep their “use of force” policies secret.

Next week, attorneys for Texas Appleseed will ask a San Antonio court for summary judgment in a suit to protect parents' right to know the types of force that San Antonio ISD police officers can use against students. A similar suit has been filed in regards to the Spring Branch ISD.

IMO the Attorney General is dead wrong that the law-enforcement exception to the Public Information Act applies to these policies. He's supposed to construe exceptions to the act narrowly, while this interpretation stretches the exception beyond credulity. San Antonio ISD is afraid releasing the information would "tip its hand to disruptive students and outsiders looking to evade police action on campus." But if the Texas Youth Commission can operate with its use of force policies public, the risk to schools is minimal. Indeed, TYC's example shows exactly why such policies should be made public: Otherwise, no one can tell whether they comply with state and federal law, court precedents, etc..

Relatedly, during his first term or so, I praised Greg Abbott's open records division for consistently fighting for transparency. But increasingly I'm seeing opinions like this one, particularly related to the law-enforcement exception, where the AG appears to be looking for excuses to close records instead of defending Texas' tradition of openness, which is his statutory charge under the Public Information Act. Rulings like this one make a joke of the preamble to the Public Information Act, which contains the high-minded and oft-ignored assertion that: "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.  The people insist on remaining informed so that they may retain control over the instruments they have created."

Use of force, particularly involving Tasers or pepper spray, constitutes a physical attack, and when government won't even reveal to its citizens its policies on when it can attack their children, the public has indeed lost control over the instruments of government it has created.