Austin Police Oversight Act Enforcement

[Jose Chito Vela]

Colleagues,

Over a year after its victory at the polls, key provisions of the Austin Police Oversight Act (APOA) remain unimplemented. The city is currently defending itself against a lawsuit from criminal justice reform advocates who demand the city open up the secret “(g) file” disciplinary records. Our City Attorney believes the “(g) file” disciplinary records remain confidential despite the voters’ passage of the APOA. I disagree and wanted to publicly explain my reasoning.

Section 143.089(g) of the Local Government Code states the city “may” withhold police records when an investigation does not result in disciplinary action. The use of the word “may” traditionally indicates a permissive action, one that the person granted the power can choose to exercise…or not. Virtually all legal analysis of this provision indicates the same. Both the Texas Attorney General’s Office and a Texas Court of Appeals have looked at the law and concluded that “the terms…are permissive” and that the law “authorizes but does not require” withholding the police disciplinary records. Citation: City of San Antonio v. Texas Attorney General, 851 S.W.2d 946, 949 (Tex. App.—Austin 1993, writ denied); Tex. Att’y Gen. ORD JC-0283 (2000) at 2.

In addition, the City of Houston has civil service rules for their police officers governed by a similar local government ordinance passed by the Texas Legislature. However, their ordinance states Houston “shall” withhold police records under similar circumstances. Citation: Tex. Loc. Gov’t Code § 143.1214 (b). When one law says “shall” and the other law says “may,” there is a clear difference between the two.

Given the Texas Attorney General’s Opinion, the Texas Court of Appeals decision, and the similar provision for Houston that explicitly uses the word “shall,” I believe the City of Austin’s legal position should be that all police disciplinary records are public since the passage of the APOA. Of course, there is plenty of private information within police records which is still protected by numerous other confidentiality provisions, such as health records, social security/drivers license numbers, etc.

I hope for a quick resolution of the pending lawsuit that confirms the city’s authority to allow public access to previously confidential police records. The public already has full access to the disciplinary records of all other city employees and law enforcement agencies such as the Travis County Sheriff and the Texas Department of Public Safety. Granting the public full access to Austin Police Department disciplinary records is an important step towards the transparency and accountability our voters have demanded.

Saludos,

Chito