When Govt Seeks To Keep Public Actions Hidden- Transparency Issues with the Texas Public Information Act


When Govt Seeks To Keep Public Actions Hidden- Transparency Issues with the Texas Public Information Act

21 January 2019 at 4:34:07 PM

I saw an article last week regarding the Travis County Sherrif's Depart who are suing the Texas Attorney General's office to keep certain records secret. What records? A death at the Travis County Correctional Complex.

In 2017, Herman Titus, 21, suffered a seizure in his cell at the Travis County Correctional Complex and died shortly after. Titus had been involved in a major car wreck just weeks earlier, landing him in jail for intoxication assault since his passenger was injured.

Titus’ autopsy stated he had an enlarged heart and suffered from heart disease, but his mother tells KXAN he had no history of heart issues.

“I just want to know what really killed him, because it's kind of hard to accept that my son just died from natural causes,” Demeisha Burns said.

What caught my attention was that Burns and her attorney were denied information.

...the county cited an obscure loophole to the Texas Public Information Act giving police discretion to withhold information if a suspect has not gone through the court process — even if that person dies in custody. KXAN’s research into the issue is currently being utilized as a state lawmaker works to push a bill through the legislature to close that loophole and require law enforcement agencies to hand over information in such cases.

When I read this it reminded me of when Ron Hankins, former Somervell County attorney, went to the Somervell County Sheriff's Department, and with the apparent consent of current Somervell County attorney Andy Lucas, filed a complaint against someone who wrote a letter to the editor of the local newspaper, the Glen Rose Reporter.  The writer apparently got under Hankins's thin skin for something he said at a public government meeting. The local police went to the writer's home and told her that Hankins had put in a complaint that required them to investigate her. I'm a friend of hers and was wanting to know on what basis what appeared to be a bully with no concept of freedom of speech and of the press decided to go *investigate* someone who criticized him. I did an open records request, the sheriff's department did not want to give me the records regarding this and wrote to the AG's office. The AG's office, on the basis of 552.108(a)(2) allowed them to withhold the information. But surely, I thought, after the *investigation* was closed, the information about why the fool Hankins and Lucas accused this woman of *computer fraud* for writing a letter to the paper would be available. Nope, Andy closed the investigation and because no charges had been filed (of course), the information was again not available. 

So I was interested to see if this bill referenced the same thing. Yes. It appeared so. From an investigation from KXAN regarding the kin of the man who died in jail being denied evidence. 

State Rep. Joe Moody, D-El Paso, wondered the same in the 2017 legislative session. The former prosecutor and current chair of the House Committee on Criminal Jurisprudence pushed a measure to close the loophole Travis County cited to keep some information back. His bill failed to pass, but he said our KXAN investigation is now giving it a second chance in the upcoming legislative session.

"We do a lot of things in [the Capitol] with the best intentions," Moody said. "But how that works in the real world isn't known until that law gets on the books and starts getting utilized. Are there unintended consequences?"

That loophole is actually an exception to the state's Public Information Act put in place in 1997 generally to protect privacy. It only involves closed cases, not active investigations. It gives law enforcement agencies the discretion to withhold information in closed criminal cases that did not result in a conviction of deferred adjudication. For example, if someone is arrested and evidence is gathered, but the charges are eventually dropped, it might be in that person's best interest to keep that evidence out of public view.

Moody said lawmakers never meant the law to apply to cases when suspects die in police custody. Someone who dies can never be convicted or cleared of a crime. After KXAN showed him our findings, he said it's clear some agencies might be taking advantage of the loophole to avoid transparency.

The bill in the 2017 session was here  HB3234

I don't know what the bill number might be if Joe Moody is also presenting it again for the next session. Update: The bill for this session is HB147

A BILL TO BE ENTITLED AN ACT relating to access to certain law enforcement, corrections, and prosecutorial records under the public information law. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTIONA1.AASection 552.108, Government Code, is amended by adding Subsection (d) to read as follows: (d)AAInformation described by Subsection (a)(2) or an internal record or notation described by Subsection (b)(2) is not excepted from the requirements of Section 552.021 if: (1)AAeach person who is the subject of the information, record, or notation: (A)AAis deceased; or (B)AAconsents to the release of the information, record, or notation; or (2)AAthe information, record, or notation relates to a peace officer who is the subject of a criminal or internal investigation arising out of the peace officer ’s involvement in the detection, investigation, or prosecution of a crime. SECTIONA2.AASection 552.108(d), Government Code, as added by this Act, applies to information, records, and notations collected, made, assembled, or maintained on, before, or after the effective date of this Act. SECTIONA3.AAThis Act takes effect September 1, 2019. 

Now, I'm not trying to equate government trying to hide information about an inmate's death to be the same thing as govt using a loophole to harrass a citizen and then keep the citizen from knowing why. But it seems to me that the *obscure* part of the Texas Public Information Act that allows injustice needs to be reworked. When, as in the case of the citizen above, law enforcement over-reaches and uses its power to go after someone for exercising a constitutional right., that person should be able to find out why this happened, as a way to hold an out of control official accountable.  As Moody said "it's clear some agencies might be taking advantage of the loophole to avoid transparency"; it seems clear that this could apply to the local Somervell county former and current attorneys. 


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