Dexheimer offered this little-recalled history of how these records - which would have been open a quarter century ago in Texas - became closed:
At one time, most police records in Texas were considered open to public inspection. Between the writing of the state’s open records act, in 1973, and the mid-1990s, the attorney general issued a string of opinions concluding that, except for an ongoing prosecution in which releasing details might compromise a case, most law enforcement documents were considered public.
In 1994, however, the Harris County district attorney’s office sued the state to keep private its closed investigative files. In 1996 the Texas Supreme Court agreed with the prosecutors.
With the status of the law murky, in 1997 Texas lawmakers wrote a new statute. It specifically excluded from public view “information that deals with the detection, investigation, or prosecution of crime only in relation to an investigation that did not result in conviction or deferred adjudication.” One stated reason was citizen privacy.
“If there is an investigation about potential criminal wrong-doing and the decision is made that no charges will be filed, the person has some privacy right not to be characterized as a person under investigation,” explained James Hemphill, an Austin lawyer with the firm of Graves Dougherty who represents the American-Statesman on media law and open-records issues.
Another reason was simply “to try to withhold as many records as possible,” said Joe Larsen, a Houston open records attorney. Added Laura Prather, an Austin attorney who specializes in First Amendment protections: “Law enforcement has a very powerful lobby.”
Since then, the clause has been used to summarily deny police and prosecution closed-case records from reporters and attorneys. Yet it has also thwarted families such as the Dyers seeking information and, occasionally, legal recourse.
In March Rep. Joe Moody, D-El Paso, filed a bill to compel release of police records if, like Graham, the suspect had died; or, even if not, gave his consent to their release. “The intent of the law was to not interfere with a pending investigation,” said Prather, who promoted the measure for the Freedom of Information Foundation of Texas. “It doesn’t apply if the suspect is dead..
Moody, a former prosecutor, said he was persuaded to change the law simply because government records should be considered open to public scrutiny unless there is a compelling reason to withhold them. With police reports of deceased subjects, “I don’t see the interest it serves by withholding that,” he said.Grits has written about these issues many times. In 1996-97, Texas went from having one of the very best open records laws regarding law enforcement to one of the worst.
Moody's legislation is a good start, but at some point the Lege needs to revisit these broader open records issues surrounding law enforcement. Cases where there is no conviction are exactly the ones where you most need open records - cases may be dismissed or never filed because of misconduct or error, for example, that can never be discovered while the records are secret.
A big reason why the law passed in 1997 was so bad is that, at the time, there was quite literally no active criminal justice reform movement in Texas aimed at the state legislative process and there were no interests at the table to counter law enforcement's desire for maximal secrecy. Indeed, the reason Grits first began making the trek to the capitol was my horror that that bill had passed with no substantive opposition. That would not be the case today, so perhaps it'd be a good time to revisit these important questions now that the citizenry is more engaged on these topics.