The city of Austin must turn over internal police records that they intended to keep secret, according to an opinion letter the Texas Attorney General’s Office sent to the city in response to a public information request filed by the Chronicle. City Hall sources shared the A.G. letter with us.
In June, we requested the full personnel file for Austin Police Officer Christopher Taylor, who goes on trial next month for the on-duty killing of Mike Ramos in 2020. The city responded three days later, notifying us that they’d asked the A.G. for permission to withhold some of Taylor’s records. In the past, this has been standard practice – state law requires some misconduct records be made public by request, but it allows law enforcement agencies to maintain secret records in what is known as a “G file,” which is reserved for documentation of officer misconduct investigations that do not result in disciplinary action.
“The department may not withhold any portion” of the requested records. – Texas Attorney General’s Office
But the A.G.’s response makes clear that the city no longer has a G file, and so, “the department may not withhold any portion” of the requested records.
The previous labor contract between the city and the Austin Police Association outlined the Austin Police Department’s ability to keep those records secret, as state law allows. But because the city-APA labor agreement lapsed in March, and because of the passage of the Austin Police Oversight Act in May – which prohibits the city from maintaining a G file – the city no longer has a G file. Before delivery of the A.G.’s opinion, the city’s Law Department argued that the city could not simply do away with the G file – the only way to get around those protections would be to negotiate exemptions in a labor contract. They described as much in their own letter to the A.G.: “The APOA specifies in section 2-15-6 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 city letter states.
The city then asked whether investigation of complaints made before passage of the APOA, when the city still had a G file, could still be kept secret under state law. In the response letter, dated Sept. 18, the A.G. denied that request, writing, “You inform us the city does not maintain confidential internal personnel files under section 143.089(g). … Accordingly, we find you have failed to demonstrate the information at issue is subject to [G file protection].”
In a statement responding to the A.G.’s opinion, Equity Action was careful to point out that eliminating APD’s G file does not expose Austin police officers to heightened levels of transparency, it merely brings APD up to the level of transparency commonly found in law enforcement agencies throughout the state that have not adopted civil service protections. “Equity Action has long argued that Texas cities can and should use their discretion to close their G files because they impede police oversight and transparency,” said EA Board Treasurer Rebecca Webber, who is also representing Ramos’ mother, Brenda, in a suit against the city over Ramos’ killing. “Closing the G file just applies the same standards for the public release of records that already exist at [the Texas Department of Public Safety], at the Travis County Sheriff’s Office, and at hundreds of other Texas law enforcement agencies.”
City Council Gets in the Act
We reached out to Austin Police Association President Thomas Villarreal to talk about the A.G. opinion, but he has not responded. Thursday was not a great day for the union, however. In addition to delivery of the A.G. opinion, City Council also passed a resolution instructing Interim City Manager Jesús Garza to finally, without excuse, implement elements of the APOA that have not yet been enacted – even though the ordinance became law more than five months ago.
The resolution, authored by Council Member Zo Qadri, instructs staff to take steps to ensure staff at the Office of Police Oversight can conduct basic fact-finding investigations into all complaints submitted to the office, without requiring that complainants first provide a sworn affidavit. It also instructs Garza to ensure all OPO staff receive the certification required for them to have “direct and unfettered access” to materials relevant to APD’s internal misconduct investigations, such as body-worn camera footage. The resolution includes other measures intended to make sure the APOA is fully implemented (in accordance with state law), and it calls for monthly check-in meetings for the city to provide progress updates on implementation.
Before Council voted on the item, they convened for an unplanned and somewhat urgent executive session to discuss the A.G. opinion, which the city’s attorneys had just received. The attorneys asked that Council postpone a vote on the resolution so they could have time to sort through the implications of the opinion and how it might impact the APOA; Council did not heed that advice. They returned to the open meeting and approved the resolution 10-1 (CM Mackenzie Kelly against).
But, before that vote, Mayor Kirk Watson offered a muddled explanation for the impromptu executive session. “It’s important for everybody to know that between the time we had an executive session earlier today and before we got to [the APOA] item … we had a new opinion that came out from the attorney general based upon a public information request.” The city needs clarity on the opinion, Watson continued, but once their questions are answered, “we’ll bring back another resolution very soon … that would allow the city to do more [on APOA implementation] than was anticipated when we started today.”
The city has not yet released the records to us as of press time, and they would not say when the records would be released. “The City is seeking clarification from the A.G. regarding the scope of its ruling,” a city spokesperson said. “Once the City receives that clarification, we can provide a timeline with respect to the PIR.”
After we asked for more specifics on what clarity the city was seeking, the spokesperson replied: “Although the A.G. addressed the City’s assertion of 143.089(g), there are other types of information that could be implicated if they are not protected under 143.089(g). The City needs to review the records and determine if it might be required to seek a ruling under other provisions of law.”
This means the city is looking for other law they can cite to withhold records, something that Equity Action made reference to in their statement. “Exceptions preventing release of these types of records exist, and the City even has boilerplate language it routinely uses,” EA Senior Advisor Kathy Mitchell wrote, “but the City failed to cite them in the case in question, and that’s entirely on them.” Now, it seems, the city is exploring ways to correct that failure.
We don’t yet know what Taylor’s G file contains, but we do know that the city argued in a motion at his trial that the records should be kept from the Travis County District Attorney’s Office, which subpoenaed them. District Judge Dayna Blazey ultimately decided that the records would be delivered to Taylor’s defense attorneys, but not to state prosecutors. The state asked the 3rd Court of Appeals to force Blazey to reconsider her decision, but the 3CA denied the state’s motion.
According to the A.G. opinion, the records prosecutors sought are considered public information and should be obtainable by the state. The question now is whether prosecutors will seek them. The Travis County D.A.’s Office declined to comment.
This article appears in September 29 • 2023.