Attorney General Reverses, Says City Can Maintain Secret Police Files

The city of Austin will not have to release confidential police records requested by the Chronicle, according to a new opinion from the Texas Attorney General’s Office, which reversed the A.G.’s position last month ordering the city to release the records.

The new opinion delivered to the city Oct. 17 – one day before the city’s deadline to either release the records or file a lawsuit to suppress them – will allow the city to continue their broad refusal to implement an aspect of the Austin Police Oversight Act, which voters overwhelmingly approved in May and which City Council ordered staff to finally implement one month ago. The provision of the APOA in question is one that requires the city to provide confidential records relating to police misconduct investigations – held by the Austin Police Department in what is known as the “G file” – to other departments within the city and, in some cases, to the public.

Contents within the G file relate to internal misconduct investigations carried out by APD’s Internal Affairs Division that did not result in formal disciplinary action (e.g. suspension or written reprimand). Proponents of increased G file transparency – like Equity Action, the organization that wrote the APOA – argue that the G file could contain investigative materials substantiating misconduct allegations, even if the specific allegation in question did not result in discipline. The chief of police, for example, could agree that an allegation was true, but only mete out a level of discipline (like oral reprimand) that does not require public disclosure. Opponents of G file transparency – like the local officer’s union, the Austin Police Association (APA) – say those records should remain confidential because their release could cause reputational harm to officers over misconduct, alleged or proven, that did not result in disciplinary action.

The city has long maintained that Chapter 143 of the Local Government Code, which says a city “may” keep a secret misconduct file, prevents them from implementing this provision of the APOA. The only way to eliminate the secret file, they say, is by negotiating a labor contract with the APA, to grant some level of access to those records. It is unlikely the APA will ever sign a contract that contains such provisions, because they adamantly oppose anyone outside of the police department accessing these records – including civilian staff within the Office of Police Oversight who are tasked with investigating officers accused of misconduct.

But the initial A.G. opinion, delivered to the city on Sept. 17, differed from that legal reasoning. In June, shortly after the Chronicle filed a Public Information Request for an Austin police officer’s full personnel file (including G file materials), the city wrote to the A.G. asking for permission to keep the records confidential. These types of requests from local governments are routine, but their own letter spelled out the potential problems with keeping the records confidential.

“The [APOA] specifies … that the city shall not maintain a confidential internal personnel file under section 143.089(g) and shall release information regarding complaints made against officers in accordance with the Public Information Act,” the letter states.

The A.G.’s Sept. 17 response affirmed what appeared to be a statement made by the city, not a question it asked. The APOA says the city “shall not maintain” a G file, the APOA is now law, therefore the city does not have a G file anymore. “You inform us the city does not maintain confidential internal personnel files under section 143.089(g),” the A.G. wrote. “Accordingly, we find you have failed to demonstrate the information at issue is subject to section 143.089(g). Therefore, the department may not withhold any portion of the submitted information.”

The opinion immediately set off panic among the city’s lawyers, according to accounts from several City Hall sources. Though the opinion is dated Sept. 17, the city did not receive it until Sept. 21 – in the middle of that day’s Council meeting. After receiving the letter, an unnamed employee within the city’s law department made a Facebook call to an attorney in the A.G.’s office at 1:51pm that was not answered, according to records obtained by the Chronicle through a Public Information Request submitted to the A.G.’s office. “Hey can you call me please???” the city employee messaged next, adding their personal number (which was redacted) to the chat. Later that day, Mayor Kirk Watson convened an unplanned second closed-door executive session where the city’s attorneys informed them of the A.G.’s opinion.

Why would the city’s lawyers be sweating bullets over an A.G. opinion increasing transparency into the Austin Police Department by opening up some level of access into records maintained in APD’s G file? Many law enforcement agencies, like the Texas Department of Public Safety, the Travis County Sheriff’s Office, and hundreds of other agencies across the state, don’t maintain G files. Why would the city go to court, as they did in May, to successfully block the Travis County District Attorney’s Office from accessing the G file of Austin Police Officer Christopher Taylor, who the D.A. will prosecute for murder at a trial beginning Monday, Oct. 23?

Because, for perhaps different reasons, the city’s law department is as protective of records within APD’s G file as the police union is. And the people with the authority to reject the city’s position – Interim City Manager Jesús Garza, Watson, and the other 10 council members – have not moved to do so, as evidenced by the fact the APOA still has not been implemented with fidelity, and the OPO is still not thoroughly and independently investigating complaints made against officers accused of misconduct.

One city official – CM Mackenzie Kelly, the only Republican elected to Austin’s City Council – has acted to influence access to G file records. Her actions may have sparked the A.G.’s reversal opinion. The A.G.’s Oct. 17 opinion states that since the office delivered their initial opinion ordering the city to release G file records “we have received new information that affects the facts on which [that] ruling was based.” In light of that new information, the opinion continues, “this decision serves as the correct ruling and is a substitute” for the original decision.

The new facts referenced came from only two sources: Kelly and the Combined Law Enforcement Associations of Texas (CLEAT), the statewide police union. (State law allows any interested party to submit comments to the A.G. about a determination made by the A.G. regarding release of records relating to a Public Information Request.)

In their letters, both Kelly and CLEAT argue that APD does still maintain a G file – the statement in the city’s June letter to the A.G. stating that APD no longer maintained a G file was “factually incorrect.” “I believe that the aforementioned factual inaccuracy should be corrected,” Kelly continued, “as there are unintended consequences of the opinion in its current form.” The city also said their June letter was misunderstood. In an Oct. 9 statement to the Chronicle, a spokesperson said “the city has maintained G file material on police officers” since Austin voters opted into those protections and that the city’s June letter to the A.G. “did not indicate otherwise,” it just pointed out differences between the APOA and state law.

Kelly’s letter was sent Sept. 26, five days after the city received the initial A.G. opinion ordering the records be released to the Chronicle (and a second, unknown, requester). An email sent from Kelly’s chief of staff, Thomas McGregor, on Sept. 26, indicates that Kelly’s office discussed the opinion with the A.G.’s office that day. “Thank you for taking the time to speak with our office today regarding the possible reconsideration of the [opinion],” McGregor wrote to Austin Kinghorn, associate deputy attorney general for legal counsel at the A.G.’s office, in the email obtained by the Chronicle through PIR. Kelly’s letter objecting to the initial opinion was attached to the email.

Six days later, on Oct. 2, a call log we obtained through PIR shows that someone at the A.G.’s office called the city’s law department to inform them of the new facts they received (the city claims they were unaware Kelly had sent the letter) and to not release the G file records in question, because a reconsideration might be in the works. Two weeks later, that reconsideration arrived in the new Oct. 17 opinion.

Critically, though, the new A.G. opinion does not address the underlying legal questions surrounding this whole debacle – which is, does state law require APD to maintain a G file or does it simply allow them to maintain one? And if it is required, can other city departments (like human resources or OPO) maintain the same records, which APOA proponents argue would free them of G file protections and make them accessible by those internal departments, if not the wider public? That access is key, because it would allow OPO to truly investigate alleged officer misconduct independently of APD, which currently controls most of the process.

In an Oct. 18 statement, a city spokesperson reaffirmed that the city still maintains a G file. But, based on the A.G.’s initial Sept. 17 opinion – it appears that is the case only because the city is choosing to maintain one. If they wanted to stop – and, consequently, provide greater transparency into the G file – they could.

The ruling “simply reveals that the city continues to violate the APOA,” Equity Action’s Chris Harris said in a statement responding to the A.G.’s Oct. 17 opinion. “The key here is that this is the city's decision and the city has decided to violate the law.”