By Paul Watler
FOI Foundation Board Member
April 3, 2018
As the investigation into the Austin bombings became increasingly urgent last month, police also worked to inform the public and enlist their vigilance. Interim Chief Brian Manley as well as state and federal law enforcement officials provided repeated news briefings on the hunt to identify and apprehend the serial bomber.
When officers closed in, the bomber detonated a final device, taking his own life and deepening the mystery of his motives. Soon it emerged that the perpetrator made a video confession recorded on his cell phone. But the public was left only with secondhand accounts of the recording as Austin police refused a number of requests for release of the video.
Once an investigation concludes with the death of the prime suspect, may law enforcement continue to withhold public information from the case? On the other hand, does the law permit police to continue to keep the public informed by release, in this case, of the declaration of the person who terrorized the capitol city?
Generally, our state public information law, formerly known as the Open Records Act, presumes that all information obtained or created in the course of official business should be disclosed upon request from a member of the public or the news media. This presumption of access to public information especially extends to law enforcement. After all, this is the department of government with the awesome responsibility for public safety and, in certain circumstances in order to prevent serious bodily harm or death, the more awesome authority to use deadly force in the people’s name. Just as the power of the state reaches its zenith in the law enforcement function, the need for transparency and maintaining public confidence is also at its highest.
The specific provisions of the Texas Public Information Act that deal with law enforcement reflect the dual requirements of public safety and public transparency.
First, the law permits police to withhold information relating to an ongoing criminal investigation, including one that does not conclude in a conviction or deferred adjudication. With the death of the culprit in the Austin bombing case, it obviously appears likely that the case will conclude without prosecution or conviction. In this circumstance, the exception from required public disclosure for law enforcement investigations could extend indefinitely. Short of litigation or legislation, the public has few options to curtail the effects of this open-ended statutory wording.
But police have an elegantly simple alternative readily at hand: voluntary release of public records. This outcome is consistent with the law’s purpose of transparency and accountability while not hindering a live case.
Under Texas law, the law enforcement exception is completely discretionary. Government may to invoke the exemption when necessary, but is not required to apply it in every conceivable instance. The law enforcement exception exists to protect the integrity of police investigations—not the privacy of a dead suspect or to avoid the reality of warped reasoning from the mind of a serial murderer.
With the death of the bomber, not only is there no prospect of his prosecution, but there is little reason now to leave to speculation essential facts gathered by investigators. Keeping the public fully informed stems the proliferation of misinformation that can so quickly take hold in our social media age.
The time has come for Austin police to exercise the discretion vested in them by state law to release the video in the bombing case.
Paul C. Watler is a Dallas lawyer and former president of the Freedom of the Information Foundation of Texas. The views expressed are his own.