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This month, we once again take you behind the scenes of the Defenders Investigative team to reveal a near-daily problem we face in attempting to bring you the truth. We call it the “Stonewall Two-Step.”
Read on.
David Raziq, Executive Producer
Delaying the Inevitable
The Top 4 Ways Officials Try to Sabotage Defenders Investigations
It’s your money. It’s your votes. It’s your government.
So you’d think that viewing documents, video, and data collected by public employees paid with public tax dollars and using public equipment would, within reason, be a ‘snap,’ right?
Well, think again.
Despite being state law since the early 1970s, the Texas Public Information Act (TPIA) — a thing of beauty meant to restore transparency and access to the stubbornly opaque corners of government — some local and state administrators often do everything they can to NOT hand over the information you want in a reasonable time frame.
So what’s the Number 1 rationale to deny our records requests?
“It’s under investigation.”
This actually is an exemption written into the state open records law and it has a sensible rationale.
After all, if a public agency is conducting a criminal or civil investigation, you may not want copies of a case file in the public media or domain.
The problem starts when the exception is sometimes used by the San Antonio Police Department and other law enforcement organizations as a method to keep the information from the Defenders and out of the public eye. They do this by keeping the case designated as “under investigation” for months or years, even when it’s clear there is no active inquiry.
Then, at that point, some agencies will claim that any and all information on the case is NOT releasable because that inquiry did not result in a criminal conviction or deferred adjudication. This is particularly common when a police officer is the focus of the investigation (such as in a shooting).
The result: In effect, any findings, documents, body camera video, etc. becomes a virtual “state secret.” Forever.
The next technique used by officials to fight public release of information is probably THE MOST POPULAR used by agencies of all sorts in Texas:
“This looks like a job for….THE TEXAS ATTORNEY GENERAL!”
This method has become almost an instinctual reflex by many agencies in our area to stall the release of public information. The short of it is this: Say “City Hall” just doesn’t want to release public information that the Defenders have requested.
Instead of handing over the responsive records, they decide to instead file an appeal with the Attorney General. The result: Any answer on the records request is delayed by as much as 45 BUSINESS DAYS while the AG reviews and issues a ruling. So, at the very least, this method can drastically slow down getting information to the public, sometimes regarding a very timely news event.
But again, the worst aspect of all of this is that many Texas government groups, police departments, school districts, you name it, are asking for AG opinions no matter what information a journalist asks for, no matter how obvious and clear it is that it IS public information under the law.
The next way of confounding reporters seeking info from a Texas public institution is tried-and-true.
“That will be $500,000 please.”
Yep, it’s money. More specifically, LOTS of money: Overcharging, sometimes VASTLY overcharging, for PUBLIC information to create a barrier for the journalist’s reporting.
The state open records law allows for agencies to recover any costs of copying. Or as the Freedom of Information Foundation of Texas explains:
“A governmental body or agency can charge for copies of the information, but the fee must be reasonable and cannot be used to discourage someone from asking for information.”
Well, the Defenders have found that’s not always the case.
For example, when we wanted dash-cam video of two Bexar County deputies who had been pulled over for apparent drunk-driving, the County insisted that the UNUSUAL price of that video was $400 and no negotiating it. Other law enforcement organizations had never charged so much and the price was exorbitant to nearly prohibitive. By the way, the state law specifically says that any agency can waive such costs if it is public interest. If they want to do it.
And about that $500,000 invoice mentioned above: That was an actual bill a police department sent one of the Defenders after he requested copies of forensic testing documents used to convict defendants in questionable cases in the Houston-Harris County court system.
And, finally, there is this outrageous but often effective excuse to block a reporter’s investigation:
“It just doesn’t exist.”
So you send a well-written information request to (fill-in-the-blank) county/police department/park system/etc. Usually you’ll get an email receipt confirming your request, but sometimes not. After patiently waiting for the full, legally mandated, 10-day maximum window that the agency has to respond to you, you get: NOTHING.
Another day and another goes by - still nothing.
So you call and e-mail and finally you get an answer right out of The Twilight Zone, ‘We don’t have a request from you.’ Another variation is that they acknowledge receiving your request BUT the record/letter/email/etc. “just doesn’t exist.” That’s the answer our reporter Dillon Collier got from San Antonio Municipal Court when working on a story about their top judge wanting to step down.
The problem? Dillon already had an “informal” copy of the document but wanted a copy from their files to assure its veracity. Suddenly, the courts found what he had requested.
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