Austin Orgs Disagree on Legality of Secret Police Records in New Court Filings

A hearing has been set for April 9

Austin police are still maintaining a confidential “G file” (art by Zeke Barbaro / Getty Images)

The lawsuit that could settle a longstanding dispute over police accountability continues to move forward, with the first hearing in the case set for April 9.

The suit, filed by justice advocacy organization Equity Action, seeks to force the city of Austin to enact several aspects of the Austin Police Oversight Act (APOA), which the city has not implemented. One of the most controversial provisions in the act is elimination of the “G file” – where the Austin Police Department keeps confidential records related to investigations into alleged officer misconduct.

In a Jan. 8 response to Equity Action’s initial complaint, the city maintained the same position they have held for years: maintaining a G file is a mandatory provision of state law and the city is prohibited from eliminating it. (Last year, a city attorney argued something a little different: The G file is optional but only APD can decide to eliminate it, not the city. This argument was not put forth in the city’s lawsuit filing.)

Equity Action argues simply that the APOA bans the confidential G file, and the city is illegally maintaining it anyway. A Feb. 6 Equity Action filing also contains a new, previously unreported citation to a 3rd Court of Appeals opinion from 2017 that twice describes the G file as “optional.” Equity Action also points out that Austin voters opted into Chapter 143 of the Texas Local Government Code (the state law allowing cities to maintain a G file) in 1948 – 2,756 people voted in that election, amounting to more than 10% turnout – but the Texas Legislature did not add the G file provision of the law until 1989. The Equity Action filing concludes that “neither Austin voters nor the Austin City Council ever” opted into the G file, “but Austin voters took clear action ... to 'opt out’ of G file usage.”

“Austin voters took clear action … to ‘opt out’ of G file usage.”   – Equity Action court filing

The Austin Police Association has also entered the fray. It is not a formal party in the suit, but, as the labor association representing most of APD’s rank-and-file officers, it does have an interest in the case. In a Feb. 12 filing, the association argues that the city should not be able to release G file materials to the public or the Office of Police Oversight (the APOA does not, and cannot, require the city to release these materials to the public in ways not already allowed under the Texas Public Information Act). In a sworn affidavit, APA President Michael Bullock said release of such materials could pose a threat to police officers.

APA also says the quiet part out loud by arguing that eliminating the G file would harm the association’s ability to bargain for better officer pay and benefits in meet-and-confer negotiations with the city. Elimination of the G file is a “key point of contention” in contract negotiations, the plea reads. “If [Equity Action] succeed in this case, [the APA’s] negotiating rights over this key issue will be negated.”

As for the status of that contract, the city and APA are approaching one full year out of contract (the 2018 contract expired March 31, 2023), but negotiations on a new agreement are expected to begin soon. At its Feb. 15 meeting, City Council authorized staff to negotiate a contract (not to exceed $250,000) with Rampage Law, the legal firm that has helped the city negotiate prior police contracts.

The city anticipates bargaining to begin soon, a spokesperson told the Chronicle, but no formal dates have been set yet.

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