As Uvalde questions mount, AG Ken Paxton's office weighs whether to keep records secret

Newsrooms across the country are waiting on the Texas attorney general’s office to decide if records that could reveal crucial information about law enforcement’s botched response to the Uvalde school shooting should be released.

But if the office's track record with such cases is any indication, there could be little chance that many of the records will be released any time soon.

Police accounts kept changing on Uvalde. A girl's rape story was called a lie. We reported truth.

An American-Statesman investigation into the agency's handling of more than 240,000 public records disputes over Attorney General Ken Paxton's nearly eight-year tenure reveals that his office has increasingly blocked the disclosure of public records.

The Open Records Division of the attorney general's office has ruled against disclosure of public records in half of the 18,000 cases this year, a 10% increase from 2015, Paxton's first year in office.

More:Exclusive video shows police responding to shooting inside Robb Elementary School

The difference is even starker for requests for opinions originating from the Texas Department of Public Safety. In 2015, 2016 and 2017, the attorney general's office ruled against disclosure in less than half of all cases in which the DPS sought to withhold information and requested an attorney general opinion. This year, the attorney general's office has sided with the DPS in 80% of the 388 cases in which agency officials have asked for an opinion because they did not want to release public records.

“It’s a mindset that’s being promoted,” said James Hemphill, a Freedom of Information Foundation of Texas board member who assists the Statesman with legal matters. While not legally binding, these attorney general opinions set dangerous precedents that are prompting “more governmental bodies to claim exemptions (from the disclosure of public information) and the attorney general’s office to withhold more records.”

The attorney general's office did not respond to repeated requests for comment.

In the aftermath of the Robb Elementary School shooting, the mounting number of inconsistencies in the official timeline of events and growing questions about who is to blame for the decision to wait more than an hour to stop the shooter prompted newsrooms to send hundreds of public records requests to state and local agencies in a search for answers. But government officials are working to block the release of information.

Many requests were met with outright denials or ignored, while some agencies — including the city of Uvalde, the DPS, the governor's office and the Uvalde school district — turned to the Texas attorney general’s office for opinions.

The hallway video that captured the long delay in confronting the gunman, disclosed to the Statesman and KVUE and published Tuesday, was one of several files the Statesman requested from the Uvalde school district in the immediate aftermath of the shooting. On Saturday, the district's lawyer notified the Statesman that it will request an opinion from the attorney general's office seeking to withhold some of the requested files.

Communications between law enforcement officers and 911 call transcripts — some of the records the Statesman requested — are all in theory public records unless officials can successfully argue that they fit into one of the categories of exempt information in the Texas Public Information Act.

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It’s up to the attorney general to decide whether their arguments are valid or not — a decision that is meant to balance the public’s right to know against officers', criminals' and victims’ other rights, such as the right to privacy and personal safety.

The Statesman review of the agency's handling of requests for opinions as the final arbiter of public records disputes found that the share of released records has declined across nearly every type of requested information, from school and college to public utility and transportation records, during Paxton's tenure.

In addition to the DPS, police and sheriff’s departments also tend to win more public records disputes now than they did in the past. The share of rulings keeping most or all records private grew by more than 10% between 2015 and 2022.

This trend coincides with an increase in the overall number of requests for opinions filed with the attorney general’s office. The office processed over 36,000 requests in 2021, almost 13,000 more than it did in 2015.

New categories of exemptions

But Hemphill said the rise in denials is not just a function of volume. It is partly the result of recent legislation exempting new categories of public information from disclosure.

“The Legislature has become more active in finding exemptions … (and) based on anecdotal knowledge, I would say (exemptions) are being cited more frequently,” he said. “These exemptions tend to have their genesis in some interest group who wishes to keep certain information secret. (The groups) work with legislators to draft bills and introduce them.”

When Paxton first took office, the Texas Government Code exempted from disclosure 60 different categories of information, including sensitive personal details such as Social Security numbers and such law enforcement records as documents that could interfere with prosecution.

This year, there are 72 categories of exemptions, and government agencies are taking note.

Families demanding answers

In its letter to the attorney general, the city of Uvalde cited 52 different exemptions. They include commonly cited reasons related to police investigations, open litigation, invasion of privacy and client-attorney privilege.

But they also include a legal loophole known as the dead suspect loophole barring the release of information about crimes in which no one is convicted. The exemption was originally designed to protect people who are wrongfully accused. Only recently has it been used to deny public records when a suspect dies on the scene or in custody.

Some of the requested exemptions are rarely granted, according to Hemphill, such as the city’s claim that the arrest records from that day — a category of information that is notoriously public — are “highly embarrassing.” Hemphill also said other requests are overly vague: The city's letter states that releasing information about the shooting would cause “emotional (or) mental distress” but doesn’t say to whom.

Photos:Hundreds march for transparency in Uvalde school shooting investigation, gun reform

Those most emotionally involved in the incident, the family members of the victims, are advocating for the release of information, according to state Sen. Roland Gutierrez, a Democrat who represents Uvalde and has been vocal about his frustration with officials’ reluctance to provide information.

“Every one of those family members that I have talked to … want to get the information as to what went wrong that day with their children,” he said.

Late last month, Gutierrez filed a lawsuit against the DPS after the department failed to respond to his requests for records within the 10 business days required by law.

Deflecting attention?

On June 9, the DPS requested an opinion from the attorney general addressing over 30 public records requests, including the Statesman’s inquiry about law enforcement’s radio transmissions from the day of the shooting.

The DPS letter cited the department’s active investigation into the shooting and claimed that the release of records would provide “criminals with invaluable information concerning Department techniques,” a narrative that the DPS and Uvalde District Attorney Christina Mitchell Busbee have been using to pressure local authorities to shield records from the public eye, according to email correspondence produced by Uvalde Mayor Don McLaughlin at a City Council meeting last month.

Gutierrez believes these are just excuses in a larger effort to deflect attention away from the facts and the structural failures that prevented police from responding promptly on the scene, such as Uvalde’s dysfunctional radio transmission network.

“It’s preposterous for these guys to spend $50 million in ballistic shields,” Gutierrez said, referencing the biggest ticket item in a $105.5 million initiative announced by the state's top leaders to fund school safety and mental health, “when they have been asked for the last seven years to fix the radios in rural Texas in this community … and they refuse to do so.”

The governor's office also requested exemption from the release of emails and other communications exchanged with the DPS in the shooting's aftermath on the grounds that they interfere with deliberative process privilege, a part of Texas public information law that exempts documents revealing the process by which a government entity arrives at a public statement, such as informal drafts.

The privilege is meant to allow government employees to freely communicate about what should or shouldn't be included in public communications. It is supposed to only cover advice, recommendations and opinions, while granting the release of factual information. But the governor's office claims that facts are too "inextricably intertwined" with opinions to be released — an excuse Hemphill said is misused far too often.

"I’ve never seen an example of that where the agency can't separate factual information from advice. I’m very skeptical about that principle applying to anything but the very rare case," he said. "But we are unable to evaluate whether that’s true or not because we can’t see the information. We have to rely on the attorney general’s office."

Bracing for a fight

The attorney general’s office has to decide if the exemptions cited by the city of Uvalde, the DPS and the governor's office justify withholding public information within 45 days from receiving their letters — by Aug. 15 for the DPS and Aug. 22 for the city.

The decisions could set a crucial precedent, according to Hemphill.

“If this information is successfully withheld and, God forbid, there’s a similar incident in a different location in Texas, the governmental bodies are going to look at what happened in Uvalde and say, ‘Well, if they could withhold it, so can we,’” he said.

In the meantime, newsrooms are bracing for a fight.

On June 21, the Statesman joined a coalition of more than 50 local and national media organizations working to ensure that the facts of May 24 come to light and government agencies are held accountable.

The coalition sent a letter to the attorney general's office responding to the exemptions cited by government agencies involved in the shooting.

In a recent letter to McLaughlin, the coalition also called on the mayor to demand “a full accounting of the tragic events at Robb Elementary. The victims and their families deserve an accurate and complete picture about what occurred that day.”

This article originally appeared on Austin American-Statesman: In Uvalde records fight, attorney general's office plays central role