Nostalgia for once-open police records

An article by Texas Tribune reporter Jay Root highlights a failing in Texas' Public Information Act related to law enforcement records which is long overdue for remediation. Root sought records related to "Victor Reyes, a Mexican national with a long criminal record whose 2015 shooting spree killed two and wounded three before he was killed by a police officer." Conveyed the reporter:

The Tribune asked the Harris County Sheriff’s Office, which acknowledged this week it has "voluminous" files on the case, to provide information gathered during Reyes’ encounters with local law enforcement on the night the murders took place. The sheriff’s office, which originally blocked release of the records by citing an ongoing criminal investigation, has now adopted a different argument using a more obscure exemption of the Texas Public Information Act.

Since Reyes was killed by a sheriff’s deputy, he cannot be prosecuted. The exemption the sheriff cites is designed to allow police agencies to block the release of files when there hasn’t been a final conviction or deferred adjudication — something that's impossible to achieve when the perpetrator dies while committing a crime. The law enforcement agency has asked Attorney General Ken Paxton to block indefinitely any further release of the records sought by the Tribune.

Jay's of my generation - I'm not sure if he remembers but we (barely) crossed paths at The Daily Texan in the '80s, with him a year or so ahead of me there - so I'm surprised he considers this exemption "obscure." As somebody who was a frequent user of what was then called the Open Records Act to access law enforcement records during the mid-to-late '90s, Grits finds I still harbor a surprising amount of resentment over the changes made in 1996-97 that gutted access to law enforcement records in Texas. Not only do I remember it well, in many ways it was a defining moment for me.

For many years going back to the creation of the Texas Open Records Act following the Sharptstown Bank Scandal, Texas' open records laws were the envy of the nation. (If the Sharpstown history is new to you, start here and here for your remedial lessons.) From that time until the 1990s, national rankings of open records access by state routinely showed Texas and Florida tied or competitively 1-2 depending on the ranking criteria, with Texas particularly good on law enforcement records.

In 1996, after Texas law enforcement had operated under maximal openness for a quarter century, the Texas Supreme Court overturned the Attorney General opinions which had previously governed access to records on these topics. In a case styled Holmes v. Morales - that's then-Harris County DA Johnny Holmes (with his mustache filing as amici) and then yet-to-be-indicted Texas AG Dan Morales - the Supreme Court installed the provisions Root complains about in this article.

Then, the following year in 1997, the Legislature reacted. Police unions, prosecutors and the Texas Municipal League joined forces in a rare strange-bedfellows coalition to outflank the (generally disdained) newspaper and broadcast lobby, who at the time were virtually the only advocates for openness at the capitol, certainly on criminal-justice topics. Politicians may have their differences, but they can all agree to dislike the media!

So, instead of reinstalling the old standards which governed law-enforcement records for a quarter century, the Legislature codified the bad Texas Supreme Court ruling, changing 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. The problem is, cases where the government exercised its authority without, in the end, being able to prove its case are exactly the sorts of situation most useful for public policy analysis. Such situations may include:

• Cases involving police or prosecutor misconduct
• Unsolved cases that were not pursued aggressively
• Cases where police or prosecutors decide not to pursue charges
• Suicides
• Shootings where the suspect dies

The easiest way to sweep police or prosecutor misconduct under the rug is to close records related to closed, unresolved cases. Then, all a prosecutor must do to conceal misconduct from public disclosure is to not prosecute the case and nobody can ever see the potentially incriminating information.

Speaking as someone who, at the time, was a heavy open-records user, the before-and-after difference in access was shocking and stark. Routinely, open records requests to police and prosecutors which previously had produced thick files began to generate a few pages or none at all. Agencies began to send a lot more requests to the Attorney General for opinions. And even where convictions occurred, the files somehow seemed to get thinner after that, with more exceptions applied over time in the letters to the AG asking for excuses not to disclose stuff.

Before that dark period, a Texan could be as proud of the state's open-records laws as she could its well-maintained highways back in the day. In 2016, both those statements come off as a joke. On open records these days, we're considered middle-of-the-pack or worse. And let's please not speak of the roads.

As fate would have it, this issue first spurred Grits to begin monitoring state legislation, opposing bad bills, and eventually the following session, helping promote good ones. After seeing what happened to open-records access in 1997 without any serious opposition, I and a handful of friends decided somebody needed to pay attention to what went on at the capitol on this stuff!

Although state Rep. Harold Dutton still gamely files legislation most sessions to reinstate the pre-Holmes v. Morales standard - sort of a vestigial remnant of a long-ago lost battle - this regrettably has become sort of a dead issue among advocacy groups, in large part because there are fewer and fewer folks around, whether among the press or reformers, who remember what was lost.