How We Fight Back When Officials Resist Releasing Information You Have a Right to Know

by Charles Ornstein

This column was originally published in Not Shutting Up, a newsletter about the issues facing journalism and democracy. Sign up for it here.

The city of Uvalde, Texas, the scene of the horrific shooting in an elementary school last month, has been forceful in its unwillingness to release public records related to the tragedy that took the lives of 19 children and two adults.

The city’s blanket denial took me back 25 years to my own battle for records with another Texas town coping with a tragedy.

In May 1997, two hours into Splash Day, the opening day for pools in the city of Garland, Texas, a 15-year-old boy drowned. A group of teens told me that they had sought help from lifeguards when they saw the boy wasn’t moving at the bottom of the pool. According to the teens, the staff said the boy was probably swimming, I reported in The Dallas Morning News.

A few days later, I interviewed a 16-year-old who said the lifeguards entered the pool only after a girl cried that she had swum above the boy’s limp body. “At least two people went up to the lifeguards and told them that someone was drowning,” she told me. “But they thought they were lying. They told the two girls, ‘Don’t play like that.’”

The boy’s death was the second in three years at a public pool in Garland. City officials defended the actions of the lifeguards.

Though I had less than a year’s experience as a full-time reporter, I wanted to know more about what happened. Public records are one of the basic ways journalists can try to reconstruct events when people give conflicting or unclear accounts of what happened. Within days, I had filed requests under the Texas Public Information Act for any 911 calls related to the boy’s drowning, any incident reports prepared, copies of the CPR certificates for the lifeguards at the town’s pools and any guidelines that had been established for lifeguards.

Texas has pretty strong public records laws — they may not be as good as Florida’s, which are seen by some as a gold standard, but they’re far better than those in, for example, New York.

Garland, a large Dallas suburb, said it wanted to reject my requests because it anticipated that the boy’s mother would sue the city. (She had said on TV that she wanted the pool closed and that she wanted “to take them for everything they’ve got.”) Lawyers also cited other lawsuits the city faced related to incidents at its pools.

The resulting fight showed me how guarded city officials can be and how sometimes when a reporter is fighting for information in the public interest, there’s more at stake than what’s in any given document.

In Texas, unlike in many other states, when a jurisdiction wants to withhold records, it has to explain its rationale to the state attorney general’s office, which can agree or disagree with the reasoning. In my case, the attorney general’s office determined that Garland did not have sufficient grounds to withhold the 911 recording or the incident report. But instead of providing the documents, the city sued the attorney general’s office, seeking to block their release. (By law, the suit would stop the release of the records until a district court judge made a decision.) The Dallas Morning News intervened in the case.

While our case was pending, the teen’s mother and another relative filed a formal claim with the city seeking damages. A judge ruled against us, accepting the city’s reasoning.

We appealed the judge’s ruling and lost. The purpose of the litigation exception, the appeals court explained, “is to enable governmental bodies to protect their position in litigation by requiring parties seeking relevant information to obtain it, if at all, through ‘discovery’ processes,” which are governed by rules and overseen by the court.

We never did receive the records we sought.

But that wasn’t the end of the story. Our attorneys and other First Amendment advocates in the state successfully pressed the Legislature to change the law, saying that government agencies should only be entitled to claim a litigation exemption from public records requests if they have a valid reason at the time of the request. They shouldn’t be able to cite a lawsuit or claim filed much later as proof that their denial was proper.

One of the News’ lawyers in the case, Paul Watler, told me in an email recently that he could not find any examples in which the change in the law caused records to be released that otherwise would not have been. But, he wrote, “it is certainly my belief that the amendment put a stop to the practice of governmental bodies using the exception to withhold public information when the body lacked a reasonable anticipation of litigation, which is what had occurred in the Garland case.”

That brings me back to the Uvalde records being withheld. All told, as of June 15, we and our partners at the Texas Tribune had filed about 70 records requests related to the shooting and hadn’t gotten any records back; we’ve gotten a few things since then. We weren’t just denied by the city, but also by Gov. Greg Abbott’s office, the Texas Department of Public Safety and the U.S. Marshals Service. My colleague Lexi Churchill has written about our fight to obtain the records, which is ongoing.

Media lawyers are worried the city might try to cite what has been referred to as the “dead suspect loophole,” which prevents the release of public records related to crimes in which no one was convicted or given deferred adjudication. The gunman in Uvalde died and so will never face a court ruling, which gives officials a reason to withhold records forever.

While the media may not win this records fight either, the attention could ultimately change the law.

A range of figures in Texas, from media advocates to the speaker of the House, have called for the loophole to be closed. “The ‘dead suspect loophole’ allows law enforcement agencies to withhold details about cases that end w/o a conviction, including when a suspect dies in custody. The statute was originally intended to protect the wrongfully accused, but it hasn’t really worked that way in practice,” House Speaker Dade Phelan tweeted. “It’s time we pass legislation to end the dead suspect loophole for good in 2023.”

A Texas state senator who represents Uvalde has gone so far as to sue the state Department of Public Safety for its failure to release public records.

Watler, one of the lawyers in my Dallas Morning News case, said the dead suspect loophole has inhibited the release of information following other mass shootings, including the 2016 killing of five Dallas police officers. Police killed the suspect the following day.

Out of the profound grief of Uvalde, the Texas Legislature might improve transparency and close the dead suspect loophole. Though it may not bring clarity to what happened to the children in Robb Elementary School, it could make records more accessible in the future.

This content originally appeared on Articles and Investigations - ProPublica and was authored by by Charles Ornstein.