By Leif Reigstad
Texas Monthly
Originally published Dec. 5, 2016
Texas received a grade of D- in the Center for Public Integrity‘s state rankings for accountability and transparency last November, including an F in the “public access to information” category. And the Lone Star State certainly didn’t do anything to improve its performance in 2016. This year state agencies have blocked public access to information regarding everything from small oddities to some of the most serious issues Texans have faced in 2016. The implications of such secrecy should resonate with all Texans: government agencies and their spokespeople sometimes don’t tell the public the entire truth (they are, after all, human), and the release of public records—official written or video documentation that literally spells out what’s going on behind the closed doors of our government—allows us to hold them accountable. Without access to this information, we are essentially flying blind.
Among the things the public is apparently not allowed to know: how many racing dogs failed drug tests. The Texas Racing Commission had included basic information regarding its drug testing on greyhounds for years in its annual report (like this one in 2011), but in August, when an anti-dog racing advocate sent an open records request seeking data on the number of positive drug tests, his request was denied, according to the Austin American-Statesman. An agency spokesperson told the Statesman that the commission stopped publishing the data in 2012, “simply in an effort to streamline its documents.”
The Racing Commission challenged the advocate’s open records request by asking Attorney General Ken Paxton to rule whether the information can be withheld, and the Paxton’s office quickly sided with the commission. That means that racing dog drug test results won’t see the light of day in Texas unless they are voluntarily released by the Racing Commission, but that likely will not happen. “I don’t know why the information was previously printed in the annual report,” Racing Commission spokesperson Robert Elrod told the Statesman. “But its presence there prior to 2012 wouldn’t excuse its improper release now.”
Even projects that are supposed to expand government transparency seem to be disconcertingly opaque in Texas. Take, for example, police body cameras. In November law enforcement agencies in Texas started charging the public $10 for each recording released, with an extra $1 fee for every one minute of footage that would need to be reviewed if the video had not already been released. The rule was proposed by the attorney general’s office in July, and an AG spokesperson told the Dallas Morning News that their office did not receive any public comments on the proposal. One possible reason for that lack of feedback could be because the public didn’t know the proposal existed—it first appeared in the Texas Register, the obscure online publication of the Texas secretary of state’s office.
This new rule makes it more difficult for the public to access body camera footage, but it’s unclear how helpful the recordings would be. When the Houston Police Department, the largest municipal police department in the state, released body camera footage from the fatal shooting of Alva Braziel in July, the video did not shed any light on what actually happened during the altercation. Instead, the body camera only captured Braziel’s lifeless, bleeding body because the officer didn’t hit “record” until nearly one minute after he pulled the trigger. Still, the officer had apparently acted within HPD’s body camera policy, which says an officer is not required to turn on the body camera if “it is immediately necessary for the officer to act in order to ensure his safety or the safety of others.” Braziel’s shooting illuminated the flaw in police body cameras: if they’re not required to be on and always recording, how can we expect them to capture the most revealing moments?
In a recent four-part investigation, Houston’s CBS affiliate KHOU illustrated just how pervasive that problem is within the Houston Police Department’s body camera program. The Harris County district attorney’s office told KHOU that it had identified 729 criminal cases in which there was no body camera footage available despite the fact that the police officers involved had been wearing them. And of the 162 cases when HPD did have body camera footage, it was not provided to prosecutors until after the 132 of the cases had closed. “We never said we were experts in this,” then-interim police chief Martha Montalvo told KHOU. “We knew this was a learning curve.”
Even if a body camera does capture key moments, there’s no guarantee the public will ever get to see the footage. In June, KHOU requested body camera footage from 75 incidents that most frequently yield allegations of police misconduct: resisting arrest, evading arrest, interfering with the duties of a public servant, and assault on a public servant. HPD only released footage from eight of those incidents, and, according to KHOU, none of those eight recordings followed HPD’s body camera policies. In one case, the recording starts after the suspect is already in custody, and in two cases the officers removed their body cameras and left them behind in the car.
HPD told KHOU it would release eight more of the requested videos, but said it would take “116 business days to retrieve the videos, redact private information and release them to the public.” Meanwhile, KHOU sent similar requests to the cities of San Francisco and Denver, which were fulfilled within a few weeks and five days, respectively. Yet Montalvo didn’t think HPD’s body camera is behind the curve—she told KHOU she’d give the program a B grade and maintained the department is being transparent.
When you combine these body camera problems with the fact that there is no official statewide tracking of officer-involved shootings (though the Texas Tribune is trying to create a database of its own), then it becomes clear Texans are left with a big blind spot when it comes to understanding the way our communities are policed.
Even when the state had an easy opportunity to fix an oft-criticized transparency issue, it failed to take advantage. In November the Sunset Advisory Commission had a chance to vote on a recommended proposal to rename the Texas Railroad Commission to something that would more accurately reflect the agency’s role as the state’s regulator of the oil and gas industry (the Railroad Commission hasn’t overseen railroads in ages). The Sunset Commission dropped the proposal without any public explanation. We reached out to Ken Levine, the director of the Sunset Advisory Commission, to ask why the proposal was not approved. Levine, who is listed on the commission’s website as its media relations person, said he could not act as a spokesperson for the twelve-member commission. “Only the members can tell you why they make the choices they do,” Levine said in an email. “I am sure they had valid reasons for their decisions.” None of the members of the commission responded directly to our question.
In its massive, ongoing investigation into the Texas Education Agency’s denial of special education services to students in need, the Houston Chronicle has encountered a state government body that has been less than helpful, to say the least. Most glaringly, the TEA has blocked the release of records that could prove (or disprove) the state’s claim that it didn’t enforce an arbitrary 8.5 percent special education enrollment benchmark. Chronicle reporter Brian Rosenthal also said in a recent tweet that the agency was stonewalling him:
We asked the TEA about this. “I read the tweet from the Houston Chronicle reporter and was taken aback,” spokesman Gene Acuna said in an email. “The Texas Education Agency continues to respond to questions submitted by the reporter and the Houston Chronicle. We have done so since the early stages of his research for his stories… In all instances where he has asked for some statement or comment on his stories, we have provided. We have also worked to provide some answers to his submitted questions.” Acuna also said that TEA Commissioner Mike Morath was made available for interviews immediately after he spoke at the Texas Tribune Festival in September. Here’s Acuna’s take on what happened: “[Rosenthal] introduced himself to me and I made it a point to then introduce him to the Commissioner. At that time…with no other individuals waiting to talk to the Commissioner and no time constraints on our end…I fully expected the reporter to ask his questions of the Commissioner regarding his stories. The Commissioner was also prepared to discuss. However given this one-on-one opportunity, he asked none.”
But that is not the access Rosenthal needed. “I find it pretty shocking that a Texas government agency is defending its decision to refuse more than a dozen interview requests about an important issue (affecting tens of thousands of children) by noting that a reporter was once in the presence of the education commissioner for three minutes at a crowded social function and did not ask questions there,” Rosenthal told us in an email. “The TEA may be used to the dealing with the public by giving them thirty-second sound bites instead of substantive answers, but I was unwilling to accept that. So I used that opportunity to repeat my request for a sit-down interview with the commissioner and, more importantly, the officials who actually designed the benchmark a decade ago. I was denied, again.”
Rosenthal said he first asked for an interview in May, but was repeatedly denied. “Finally, [former] TEA spokeswoman Debbie Ratcliffe called me to tell me—on the record—that there would be no in-person, on-the-record interview because TEA officials were worried that anything they said to me could be used against them in a lawsuit over the benchmark,” Rosenthal said. “I was stunned. I asked for a background conversation. Ratcliffe said she had to check. She called again and said that also would not happen due to the same concerns. I asked if the TEA would respond to written questions about the benchmark. Ratcliffe said she had to check. She called again and said that also would not happen due to the same concerns. I asked if I could submit written questions about the way in which special education is funded in Texas. Ratcliffe said she had to check. She called again and said that the agency could answer written questions about that topic. Eventually, the agency did answer written questions about that topic—although not all of the ones I submitted. Over the next four months, I repeatedly asked Ratcliffe and others for interviews. I was repeatedly denied.” If you want to read the responses to the Chronicle‘s written questions about the special education benchmark, you can do that here.
The Dallas Morning News had similar problems getting information on maternal mortality from the Department of State Health Services. In September, the Morning News reported that the reasons for the state’s disturbing uptick in pregnancy-related deaths are “cloaked in secrecy,” claiming DSHS “refused to disclose even an inventory of what data it keeps” on maternal mortality. DSHS refused to release records for maternity deaths requested by the Morning News, including a copy of the department’s data record layout, which the Morning News wrote is “essentially a table of contents that shows what data it collected and how it’s stored,” and doesn’t contain any sensitive information. When the Morning News asked agency spokesman Chris Van Deusen why the department would want to keep that information secret, he did not provide an answer.
We asked Van Deusen about all of that. He said the Morning News requested records that were confidential by law, and claimed DSHS did answer the Morning News‘s question about why the department wanted data record layout information withheld. He directed us to the letter DSHS sent to the attorney general’s office asking for a ruling on the Morning News‘s open records request. In the letter, DSHS argued that the data record layout isn’t subject to the Texas Public Information Act, and raised concerns that if the information was released, it would pose a safety threat to Texans because it could somehow “provide a roadmap for an attacker looking to extract confidential information.”
In an email on Thursday, Van Deusen told us DSHS would “follow the ruling once it arrives.” That same day, the attorney general’s office sided with DSHS. The information will not be released. “As a public health agency, DSHS is as open and transparent as possible with public health data and routinely provides aggregate statistical data about deaths like what’s found in the annual reports,” Van Deusen said in the email. “We use data to learn more about health in Texas and make recommendations to improve it, and we encourage researchers, journalists and the public to do the same. However, we also have an obligation to protect confidential information as required by law.”
But even when information isn’t determined by the attorney general’s office to be confidential by law, DSHS is still tight-lipped. When the Texas Tribune recently filed an open records request for information on the state’s failed grant proposal seeking federal funds toward an anti-overdose drug, DSHS punted the request to the AG’s office for a ruling. The AG said that the information the Tribune was in search of was able to be released, but instead of “following the ruling once it arrives,” as DSHS did in the case of the Morning News‘s rejected request regarding maternal mortality information, this time, DSHS filed a lawsuit seeking to overturn the AG’s ruling. Van Deusen told the Tribune that the legal challenge was merited in this case because, he argued, unfinished drafts are exempt from open records law.
Texas’s transparency situation is not notably worse than most other states. According to the Center for Public Integrity’s rankings, only five states received a passing grade in the “public access to information” category. Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, a non-profit open government watchdog group, says Texas has comparatively strong open records laws and employs quite a few officials who are committed to open government. But Shannon also said she is troubled by some recent rulings by the Texas Supreme Court that have weakened the state’s open records law.
“We are working to fix and clarify some of these areas in the upcoming legislative session,” Shannon wrote in an email. “Aside from what we are seeing in our courts, there are a couple of other worrisome trends with governmental entities. Some government officials try to block information or stall its release with unnecessary requests for attorney general rulings to try to keep information secret. Some try to overcharge for information.”
At least one thing is crystal clear: there’s a lot of work to do in 2017 if Texas hopes to reverse its troubling transparency trend.