By Paul C. Watler
Partner, Jackson Walker
Past president, FOI Foundation of Texas
Originally published Oct. 30, 2018
In Texas, our public information act is founded on the proposition that the people are sovereign and entitled to full disclosure of governmental affairs in order to retain control of public institutions.
Embedded in our state FOI law is the policy that the people “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.”
As a ringing enunciation of Jeffersonian democracy, the language is without equal at least among Texas statutes. But, nearly 50 years after it went on the books, I have to ask: Does the law really work that way?
Often, in the most serious times of public tragedy, we see that Texans have ceded to government officials total discretion to decide what is good and not good for the public – or their surrogates in the news media – to know.
A few recent examples come to mind.
- More than two years after five officers were fatally gunned down during a peaceful march in downtown Dallas, the police department continues to refuse media requests for release of video and audio from its investigation. Police denied the requests even though the suspect died at the scene and no prosecution will ever arise from the case.
- After a 17-year-old boy took the lives of nine students and a teacher at a high school near Houston this year, local school district officials declined a public information request for a safety audit conducted before the incident, even though there is no apparent prospect of any prosecution related to the safety audit.
- In Austin, police refused the calls of the news media for the release of a cell-phone video confession recorded by a deranged bomber who killed and maimed while terrorizing the city for weeks. Austin police withheld the confession video despite the fact that the bomber blew himself up and obviously will not be subject to prosecution.
Notwithstanding our stated policy to keep Texans informed – a commitment that should peak when it comes to investigating the latest mass tragedy and choosing measures to stop the next one – state law leaves it to law enforcement officials, who are most often unelected, to decide if it is good for Texans to know all the facts. With the Legislature scheduled to convene early in 2019, it seems a good time to debate whether the lofty policy of the Public Information Act should extend to the operative provisions related to law enforcement. In order to keep the people informed and to make wise policy choices, shouldn’t the law presume that when a law enforcement investigation closes, the details will be publicly disclosed?
Indeed, this was the law in Texas after the passage of our original open records law in 1973. At that time, the rhetoric matched the reality of how the law worked. Police could withhold information from a closed investigation only if it would unduly interfere with legitimate law enforcement objectives or a pending prosecution.
But the Legislature went a different direction in 1999. It amended the law enforcement exception to vest virtually total discretion in law enforcement upon closing an investigation to decide to grant or deny public disclosure. Not even the courts have the authority to review or overturn the decision of law enforcement officers to withhold almost any and all information gathered in an investigation of a mass tragedy or other crime.
Now, with two decades experience under the amended statute where we repeatedly see the denial of public information requests from the public and the news media in the wake of mass shootings and similar events, a strong case may be made that the law should tilt back in favor of public disclosure.
To keep the law aligned with our stated philosophy of open government, the act should be amended to provide public disclosure of law enforcement records when an investigation concludes or when prosecution is not reasonably anticipated. And the role of the courts in reviewing the discretionary choices of law enforcement in responding to public information requests should be restored.