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Records of Law Enforcement
Until 1996, the Attorney General narrowly interpreted the law enforcement exception (§552.108) to mean that investigative files could be kept secret only where disclosure would "unduly interfere with law enforcement." 104 In practice, this meant that documents related to ongoing investigations could be withheld from disclosure, but files were open to the public once an investigation was closed. But in Holmes v. Morales, the Texas Supreme Court overturned this long-standing AG position. The Court ruled that §552.108 protects all closed criminal case files, including cases that were formally concluded through a court proceeding resulting in a conviction or acquittal, and cases that were closed without ever having been prosecuted. 105
Intransigent Officials Know the AG's Bark
is Stronger than its Bite
In May 1997, three citizens filed separate requests for information regarding a former detective for the Harris County Sheriff's Department. The department released a small amount of information but told the requesters it was prohibited from releasing more by a section of the Local Government Code pertaining to personnel files (§157.904.) The department claimed it could not release the documents without permission of the former employee. Contrary to the Public Information Act, the department then failed to seek an Attorney General opinion on whether it could withhold the materials. When this became clear to the requesters, all three filed complaints with the AG's office in August 1997.
A subsequent investigation revealed the AG had addressed the personnel file issue two years earlier in Open Records Letter 95-1187 to the Harris County Sheriff's Department. In that ruling the AG concluded that §157.904 "does not make information confidential." Yet by 1997 the sheriff's department was flouting that opinion by refusing to release certain personnel information in accordance with the ruling or to seek the AG's opinion on the documents at issue. An AG investigator urged the sheriff's department in an Aug. 11, 1997, letter to "immediately release the requested information, as it is now presumed to be public information" (since the department failed to seek an AG opinion in the requisite time period). The sheriff's department did nothing.
By Sept. 16, the investigator concluded that the department was "willfully withholding the requested information" and suggested that the AG file suit for a writ of mandamus as authorized by §552.321 of the Act. A sheriff's department attorney told the investigator "he had no intention of releasing the requested information . . . and said that he [stood] firm in his position despite OR95-1187." The Attorney General has not filed a mandamus suit to enforce the Act in this case at the time of this reporting. |
After newspaper and public interest organizations objected to this broad interpretation of the law, the 1997 Legislature stepped in and redrafted §552.108 in H.B. 951. 106 However, the new language only opened to the public law enforcement files of cases that resulted in a conviction or deferred adjudication (probation). Even these files may only be made public once the defendant has exhausted all available appeals. In cases where investigations result in acquittal, or no case is ever prosecuted, the files are permanently sealed.
"If the O.J. Simpson case had taken place in Texas, we wouldn't be able to review the case file today," Paul Watler, president of the Freedom of Information Foundation of Texas, noted in an interview with CU. 107
Mike Ward, a reporter with the Austin American-Statesman, said the press and citizens will no longer be able to hold police and prosecutors accountable for shoddy investigations. "When four people were killed in a rural area outside of Austin, DPS investigated and couldn't come up with any suspects. They concluded it was a triple-homicide/suicide. Once the investigation was closed, reporters got the file and found lots of holes," Ward told CU. 108 "Surviving family members refused to believe the scenario, and hired private investigators, who got access to the file and criticized the investigation." Ward later was unable to get additional documents added later to the the case file due to the changes to §552.108.
Besides these changes, lawyers for governmental bodies defending civil suits now enjoy broad protection for any document that was created in anticipation of litigation and which tends to reveal an attorney's mental processes. In 1996, the Attorney General determined that this protection extends to closed case files, whether or not the case ever went to trial or resulted in a final verdict. 109 While attorney/client confidentiality is an important protection for any party to a suit, in this instance such protection should be balanced against the need for public accountability once the case file is closed.
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Faculty Association Struggles with Universities
The Texas Faculty Association (TFA) regularly uses the Public Information Act to compile important data about the state's colleges and universities for its members. Most institutions comply with the Act, according to TFA Executive Director Charles Zucker, but recently, three universities gave TFA the open records blues.
TFA filed an open records request with Texas Tech University (Tech) on June 5, 1998, to obtain Chancellor John Montford's employment contracts for 1996-97 and 1997-98 and related materials, including memos and e-mail messages. 1
Zucker called Tech July 9 after the university failed to promptly produce the documents or let TFA know in writing when the information would be available, as required by the Act. According to Zucker, a Tech lawyer told him Montford had not yet supplied one of the contracts and the supporting materials. "This should have been a simple matter, to send a couple of contracts," Zucker said in an interview with Consumers Union. "We weren't seeking hundreds of documents. How difficult could this be?" 2
Zucker filed a complaint with the Attorney General the same day. He wrote: "Texas Tech University has had more than a month to provide me with the information and has failed to do so. This is an obvious case of stonewalling on the part of the University." 3 The AG urged Tech to comply with the Act in a July 23 letter, 4 but Tech had already mailed some of the information the day he complained and the remainder on July 20. 5 "I have to say I was a little bit disappointed that it took a former state senator over five weeks to release obviously public information," Zucker said.
Instead of apologizing to Zucker for failing to comply with the Act, Texas Tech accused him of "harassing" the university. In a July 30 letter to the AG, Tech spokesman Pat Campbell argued that Zucker's request for "letters, memos and e-mail" was "quite broad," and noted it took 29 business days to collect the materials. "[Combine] this fact with summer vacations, a Board of Regents' [sic] meeting on June 19, 1998, other voluminous open records requests from El Paso, [and] the fact that business couldn't stop to attend solely to the TFA request, and surely you will see that the 'complaint' filed by Charles Zucker, Ph.D. appears to be a frivolous, contrived and calculated act to harass." 6
While Tech eventually sent the information, Texas Southern University in Houston consistently ignores TFA's open records requests, according to Zucker. "Texas Southern is the worst offender of all," he said. 7 For example, as part of a statewide survey, TFA asked Texas Southern on June 11, 1997, to provide information relating to faculty salary increases for the 1997-98 academic year. TFA filed a second request on Aug. 19 after the university failed to respond. 8 Having heard nothing, Zucker filed a complaint with the AG on Dec. 17. 9 Shortly afterward, Texas Southern contacted TFA and said they would provide the information but that it would cost 10 cents. 10 TFA sent a check for 10 cents, which Texas Southern cashed on Feb. 17, 1998. 11 As of Nov. 3, 1998, Texas Southern had not sent the information. 12
As part of the same TFA survey, University of Texas Southwestern Medical Branch at Dallas answered TFA's request for faculty salary information with a bill for $606. 13 Other universities provided similar information for free or for a nominal fee. "There's no consistency," Zucker said. "Some charge $15, others hundreds, and others never respond at all." 14 TFA couldn't afford to pay, so it never got the information, Zucker said.
It is not unusual for colleges to try to "beat" the Public Information Act by charging high labor fees to gather information, Zucker said. "We'll file an open records request and what we get back is an estimate of what it's going to cost to assemble the documents, photocopy them, and they give us ridiculous charges." 15 TFA files complaints with the state General Services Commission when charges seem to be unreasonable. (The GSC oversees the state law relating to charges for providing public documents.) "But the GSC can't do anything if they [universities] come up with a good reason" for the charges, according to Zucker. Zucker said he understands the AG and GSC are strapped for resources. The AG's hot line staff does "a marvelous job with obviously limited resources." A letter or phone call from the AG "very often does the trick," but "if it's an issue of excessive charges, the GSC does not have the teeth to do anything," Zucker said. 16
The Public Information Act is an important tool for TFA to find out what decisions are being made regarding faculty concerns, Zucker noted. But, "when someone stiffs you and nothing's done about it, you throw up your hands," he said, exasperated. The process can be so frustrating that "at some point you stop asking. And that defeats the purpose of the open records law." 17 |
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Faculty Association Endnotes
1 Letter from Zucker, Charles, Texas Faculty Association, to Chancellor John Montford, Texas Tech University, 6/5/98.
2 Interview with Charles Zucker, 10/20/98.
3 Letter from Zucker, Charles, Texas Faculty Association, to Texas Attorney General's Office, 7/9/98.
4 Letter from Leavers, Craig, Texas Attorney General's Office, to Chancellor John Montford, Texas Tech University 7/23/98.
5 Letters from Campbell, Pat, Texas Tech University, to Charles Zucker, Texas Faculty Association, 7/9/98 and 7/20/98.
6 Letter from Campbell, Pat, Texas Tech University to Craig Leavers, Texas Attorney General's Office, 7/30/98.
7Interview with Charles Zucker, 10/20/98.
8 Letter from Zucker, Charles, Texas Faculty Association, to President James Douglas, Texas Southern University, 8/19/97.
9 Letter from Zucker, Charles, Texas Faculty Association, to Craig Leavers, Texas Attorney General's Office, 12/17/97.
10 Interview with Charles Zucker, 11/3/98.
11 Photocopies of 10-cent check made out to Texas Southern University and bank statement showing 10-cent withdrawl from TFA's account on 2/17/97 provided by Charles Zucker, Texas Faculty Association, 11/3/98.
12 Interview with Charles Zucker, 11/3/98.
13 See "Salary Increases for Faculty and Administrators at Public Universities and Medical Schools-Fall 1997," TFA Bulletin, vol. 12, no. 1, Jan./Feb. 1998, pp. 6-7.
14 Interview with Charles Zucker, 10/20/98.
15 Ibid.
16 Ibid.
17 Ibid.
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