Friday, October 19, 2012

AG correctly interprets bad law: Open Records Act nostalgia and law enforcement records

The Attorney General's open records division ruled that the state does not have to release security footage of two Brownsville police officers shooting an eighth grader at a middle school . Reported the Brownsville Herald ("Ruling: Security footage should not be released to public," Oct. 17):
Jaime Gonzalez Jr., 15, an eighth-grader at the school, was killed by two Brownsville police officers in a school hallway after he pointed a weapon at them and refused to put it down, despite being ordered repeatedly to do so. The weapon was later determined to be a pellet gun.

John Bussian, the attorney who handles First Amendment issues for AIM Media Texas LLC, the parent company of The Brownsville Herald, said the AG’s office issued its ruling on an issue that was not even addressed in the request made by the DA’s office to keep the video confidential.

“Unfortunately, the Attorney General found another excuse not to allow public access to this important material that would remove any suspicion about what happened. The downside of the ruling is that whenever a juvenile dies the public will never have access to the records of the surrounding circumstances,” Bussian said.

In a letter to the state dated Aug. 28, the DA’s office argued that since no charges were filed in the case, the video need not be made public.
Despite the fact that the court perhaps unnecessarily relied on arguments, apparently, that the state did not make to come to its decision, from my own understanding of the Public Information Act, Grits reluctantly agrees with the court ruling. That's because I think the court correctly interpreted the current statute, which leaves release of such information to the discretion of  the agency in cases where there's no criminal prosecution. But as a long-time user of the Public Information Act, the Open Records Act, I also understand that before 1996, those records would absolutely have been public information, and I'd like to see the Legislature reverse the changes in 1996-97 spawned by the Texas Supreme Court case Holmes v. Morales, and at a pivotal moment codified the following session into state law. State Rep. Harold Dutton has heroically carried legislation in the past that would perform that good-government mitzvah, but his bill deserves bipartisan sponsorship. Right now, departments pick and choose when they'll release such information based on their own, short-term public relations goals.

A quarter-century ago when I began using it in earnest, the Texas Open Records Act was a mighty tool for justice, allowing the weak to challenge the powerful in ways that today have been diminished or sometimes shut down entirely, particularly when it comes to criminal justice. Back then, when the law was less than two decades old, many of the Open Records Act's original proponents were still at the Texas statehouse to defend it from attack, while then-Attorney General Jim Mattox was building up what, in retrospect, was the most pro-transparency record of any Texas AG, ever. Looking back, though I couldn't have known it at the time, those were the salad days of government transparency in Texas. Today, not so much.

About half of all open-records requests, if we are to judge from the proportion of cases sent to the Attorney General for review, relate to law enforcement and/or criminal cases, so the criminal-justice system is one of the main things the general public actually wants to know about. But as Grits has related before, the courts, the Legislature and a series of lame Attorneys General have conspired to gut the open records act (now annoyingly rebranded the "Public Information Act"), particularly as it regards records related to law enforcement and the criminal justice system. This is an example of a correct court decision interpreting a law  that gave too much discretion to law enforcement. But it hasn't always been thus; they're interpreting a section of the Public Information Act, section 552.108, which was rewritten in 1997, just a few short years before the GOP took control of the Texas House and Senate. The Lege could go back to the Mattox-era interpretation - as Rep. Dutton has proposed - if GOP champions existed to take up the mantle for transparency.

There's a lot of new blood coming into the Texas Lege, particularly in the House, where perhaps a third of the members will be freshmen or sophomores, and for the most part their views (read: "voting patterns," not espoused views) on open-records matters remain a mystery. Some may have never seriously considered the subject. In the Senate, long-time Public Information Act custodian Jeff Wentworth, who was generally a barrier to any and all pro-transparency reforms and an ally of law enforcement (and other) interests intent on weakening the act, was defeated in the primary, so that body will need to find a new go-to senator (or at the most, two) on the issue. Whoever that senator might be, their priorities will significantly influence whether that body will take a pro-government or pro-citizen requestor approach. Given that uncertainty, Grits cannot begin to guess how (or whether) the Lege might consider open records issues next session, and if so, whether they'll be pro-government or pro-transparency. I just know the status quo could use some shaking up and government transparency could use some new champions in both legislative chambers. Be on the lookout and let me know in the comments if you hear of any.

MORE: From the Corpus Christi Caller Times.


Anonymous said...

I would think that it couldn't be made public because it occurred on school grounds and he was a minor.

Anonymous said...

Yes. I can see some higher level of privacy protection for the kiddos. However the video not being released because no charges were filed is spooky. Would the video be released if charges were filed, in spite of the involved minor? If the answer is yes, seems the video ought to be released to discount any allegations of misconduct? Did a Grand Jury see it? A private citizen can present a complaint to the Grand Jury, but if the facts are withheld, it is not really possible. Other areas of the country are calling for citizen review boards. Grand Juries in Texas are not public and run by the DA's who will never indict law enforcement unless the public demands it. Without the facts, the public is left whistling in the dark.

Thomas R. Griffith said...

2:27PM, sorry Charlie, if a crime allegedly takes place on Public School property (bringing a real or fake weapon is a crime),(not dropping it is another and so on) & the person is killed or maimed, the security footage is ‘EVIDENCE’ despite any charges. If it’s not treated as such it basically becomes someone’s snuff film.

There is no time-line regarding a death / murder in which charges can be brought. Therefore, the footage is the proof that shows if it was a murder or a suicide by cop. Of course, after viewing it they all know the answer and it spells civil backlash and law suits from hell. Thanks.

Anonymous said...

The footage is still restricted, as the identity of the minor has to be protected unless the parent OKs it.