By Lexi Churchill, The Texas Tribune and ProPublica, June 15, 2022
In the past week, Texas Gov. Greg Abbott has joined the growing list of state and local officials fighting the release of records that could help bring clarity to how the emergency response unfolded during last month’s deadly shooting in Uvalde.
The governor’s office strayed from that broader opposition Monday, granting a request under the Texas Public Information Act from a Houston television station that sought the handwritten notes he used when he first spoke publicly about the shooting. The notes appear to support Abbott’s claim that he was misled when he initially praised law enforcement efforts during the mass shooting that resulted in the deaths of 19 children and two educators and left many more injured.
The recent release by Abbott underscores both the tremendous power government officials have to decide what is in the public interest and the unwillingness to release records that could call their agencies’ actions into question.
ProPublica and The Texas Tribune have submitted about 70 public information requests that could help answer larger questions as state and local leaders continue to offer conflicting accounts about why law enforcement did not confront the gunman sooner during the May 24 massacre. Those requests include 911 audio recordings, body and police car camera footage, and communications among local, state and federal agencies. The newsrooms also requested use-of-force documents, death records and ballistic reports.
Three weeks after the shooting, government officials have not provided the news organizations a single record related to the emergency response.
“The public wants immediate transparency,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas. “The most enlightened law enforcement agencies understand the importance of being transparent, being open and doing it right away.”
Since the shooting, state police have said Pete Arredondo, the chief of police for the school district, erred in judgment by keeping law enforcement officers from immediately confronting the barricaded gunman despite 911 calls from inside classrooms indicating that children and educators remained in danger.
Arredondo, who leads the district’s six-person police force, defended his actions in an interview last week with the Tribune. He said he never considered himself in charge of directing the law enforcement response and didn’t issue any orders. He also said he didn’t know about the 911 calls because he left his radios behind. He thought they would slow him down and wanted both hands free in the event that he had to use his gun.
Abbott’s office, the Texas Department of Public Safety, the U.S. Marshals Service and the city of Uvalde are asking the state’s attorney general for permission to withhold records that may offer tangible answers to the contradictory accounts. (Under Texas law, agencies seeking to avoid disclosure of public records typically must make their case to the attorney general.) Other government entities have asked the state for extensions as they decide whether to fight such disclosures. News organizations across the country are reporting similar responses.
Among the arguments provided by government entities for withholding such documents is one from DPS stating that releasing records like footage from body cameras would provide criminals with “invaluable information” about its investigative techniques, information sharing and criminal analysis.
In most cases, however, the agencies argue that releasing such information could interfere with ongoing law enforcement investigations by the federal government and the Texas Rangers, an arm of DPS now tasked with investigating its own department. In a statement, Abbott’s office said that, upon completion of the investigations, “we look forward to the full results being shared with the victims’ families and the public, who deserve the full truth of what happened that tragic day.”
But timely disclosure of the records is paramount given the lack of transparency and contradictory accounts from state and local officials, three Texas Public Information Act experts told ProPublica and the Tribune.
Laura Prather, a First Amendment attorney in Texas, said the reason the state allows agencies to withhold information when it is part of an ongoing investigation is to protect someone who was accused of a crime but didn’t ultimately get convicted, “not to protect law enforcement for their actions in circumstances like this, where the shooter is dead.”
“The public has the right to know what happened that day, and right now they can only act on rumors and conflicting information,” said Prather, who is representing ProPublica in an unrelated defamation lawsuit. She said law enforcement must be transparent in order to earn the public’s trust, but agencies are instead using their discretionary powers “to thwart the public from getting information that they are rightly entitled to.”
Because state law allows government officials to withhold information in cases that don’t result in a conviction, it creates a loophole that lets governments deny records in cases where the offender was killed and will not be tried.
That results in a challenge for members of the public seeking records related to Uvalde because “either way, there is a statutory basis for these governmental bodies to seek to withhold information,” said Jim Hemphill, an attorney who serves on the board of the Texas Freedom of Information Foundation.
Texas House Speaker Dade Phelan, a Republican from Beaumont, raised concerns about the “dead suspect loophole” in a tweet this month. He said it would be “unconscionable” for agencies to use the loophole to withhold “information that is so badly needed and deserved right now.”
“This is an area in dire need of reform,” Phelan wrote.
The state’s attorney general has 45 days to consider requests from government and law enforcement officials to withhold records from the public.
In 2019, after a gunman killed 23 people at a Walmart in El Paso, the attorney general issued a ruling that pointed to an ongoing investigation and required the Police Department to release records but allowed it to heavily redact the information.
Families of the 2018 Santa Fe High School shooting victims are still seeking information after the attorney general sided with the district attorney who said he could not release records because of a pending prosecution, according to the Houston Chronicle. The shooter was later declared mentally incompetent to stand trial.
Shaheera Jalil Albasit, whose cousin, Sabika Sheikh, was killed during the Santa Fe shooting, feels an overwhelming sense of helplessness four years later. She and Sheikh’s sister still have biweekly conversations in which they discuss how they could shake loose more details about that horrific day.
Albasit has been following the unfolding of information in Uvalde over the past few weeks and says she imagines the frustrations families must be feeling at not knowing more about whether law enforcement could have saved lives by acting sooner.
“All of these questions, they can whack your mind, especially if you’re a family member,” she said in an interview. “You can’t help thinking about the what ifs.”
State Sen. Roland Gutierrez, a Democrat who represents Uvalde, said families should not have to wait for answers.
“Parents are grieving their children, let’s be clear, but undoubtedly the community is questioning the credibility of law enforcement,” he said. “Can you blame them? People are upset and rightly so.”
Carla Astudillo contributed reporting.
Editor’s note: This article was republished from the The Texas Tribune under a Creative Commons license.