The Texas Public Information Act, which generally requires public disclosure of government records, includes an exception for information that “would interfere with the detection, investigation, or prosecution of crime.” That loophole, described in Section 552.108(a)(1) of the Texas Government Code, is very wide in practice, since law enforcement agencies typically get to decide when it applies. It allows them to cloak public relations concerns in the noble garb of justice seeking, as illustrated by the Houston Police Department’s handling of the fallout from the disastrous January 28 drug raid, authorized by a no-knock warrant based on a fraudulent affidavit, that killed Dennis Tuttle and Rhogena Nicholas without discovering any evidence to support allegations that they were selling heroin.
On May 3, the Harris County Institute of Forensic Sciences sent me the autopsy reports for Tuttle and Nicholas. That was a month after I had requested the reports, and I was a bit surprised, since the Harris County Attorney’s Office had claimed the documents were exempt from disclosure under Section 552.108(a)(1). I assumed that the Texas Attorney General’s Office, which the Texas Public Information Act authorizes to decide when an exception applies, had come to a different conclusion.
Apparently I was wrong, because yesterday I received an email from the county attorney’s office about the attorney general’s “ruling on your Public Information request.” The attached letter from the office of Attorney General Ken Paxton agrees that the county has the authority to withhold the autopsy reports under Section 552.108(a)(1). The letter is dated May 8, five days after I received the autopsy reports and two days after I uploaded them and wrote a post about them.
“Your request does not present a novel or complex issue,” the letter informs Assistant County Attorney Deanne Lin. “You claim the submitted information may be withheld from public disclosure pursuant to section 552.108(a)(1) of the Government Code on behalf of a law enforcement agency with a law enforcement interest. Further, you inform this office the law enforcement agency objects to the disclosure of the information because it relates to an ongoing criminal case and release would interfere with the case. Thus, we conclude you may withhold the submitted information pursuant to section 552.108(a)(1).”
In other words, police or prosecutors need only assert that the disclosure of information would “interfere” with a case, and they can count on the attorney general to agree. And that’s true even when the supposedly sensitive information has already been released by the agency that generated it, which apparently had no concerns about undermining an investigation.
Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, says “law enforcement has wide discretion” to invoke Section 552.108(a)(1), which is a “really broad” exception. The attorney general’s office is “supposed to look at what’s being argued,” she says, but “they don’t do any fact finding” and typically side with police. “They pretty much rubber-stamp it,” she says. “Usually they just trust law enforcement.”
While concerns about compromising an investigation “may well be valid” in some cases, Shannon notes, “many times it’s just, ‘We don’t want the information out.'” Houston Police Chief Art Acevedo has complained about leaks related to the deadly drug raid, including the revelation that it was based on a “controlled buy” that never happened. After a series of press conferences in January and February, the HPD has declined to answer questions about the operation, citing its ongoing criminal and internal affairs investigations. Acevedo clearly wants to control the narrative about this fiasco, which he praises himself for investigating, and it’s in his interest to prevent further revelations until he is ready to frame the story in a way that minimizes embarrassment for him and the department. Whether it’s in the interest of justice or police accountability is another matter.
While the Texas Public Information Act authorizes lawsuits to compel disclosure of records covered by the law, the attorney general has an obligation to apply the statute in good faith and in light of its goals. Here is how the law describes those:
Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees. The people, in delegating authority, 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. The people insist on remaining informed so that they may retain control over the instruments they have created. The provisions of this chapter shall be liberally construed to implement this policy.
A policy of automatically deferring to the preferences of law enforcement agencies falls a bit short of that lofty language.
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