When Kiheem Grant’s mother Loretta found out her son was in a prison hospital after he was assaulted by one — or possibly multiple — guards, she wanted to know what happened and how bad it was.
She as his power of attorney asked officials for his medical records. The request went nowhere.
“They won't give it to me. They told me to call the PIA; they told me to call the medical board over there in Galveston. They’re giving me the runaround,” she said.
The department has been equally opaque with public records requests from TPR dealing with the incident that left her son in a coma.
For more than two months, the Texas Department of Criminal Justice has fought to keep details of an assault inside one of its prisons out of the public domain.
The department employed arguments to the Texas attorney general’s office to keep records that are in some cases misapplied.
Loopholes
Experts who reviewed TPR’s open records requests said the department has used legal loopholes to block the public from understanding what happened.
The first commonly used exception is the so-called prisoner exception. In most cases, the Texas Public Information Act has a carve-out that doesn’t allow information about an inmate to be released except details like where they are located, why they are inside and when they could get out.
“There are certain things about incarcerated people that should remain private, said Michele Deitch, director of the Prison and Jail Innovation Lab at the University of Texas at Austin. “Their entire lives don't become subject to public scrutiny just because they're incarcerated.”
Deitch said while the exception is intended to grant dignity and privacy to incarcerated people, she has concerns.
“I think that it could also be a loophole that is much too large and can be used as a way to deny information that should absolutely be public,” she said.
In legal briefs, the state argued that it can’t release the disciplinary records of guards who were present when Kiheem Grant was beaten because those incidents “relate to a prisoner.” It argued the same thing for aggregate excessive force data.
“I mean, clearly, they're using it in ways that it wasn't intended to be used,” said Molly Petchenik, a staff attorney at the Texas Civil Rights Project.
'A war of attrition'
All TDCJ has said about the assault is that an unnamed inmate was hospitalized after an extraction team used excessive force. No use of force was report has been released nor any report listing the involved parties.
Keeping information private because it “relates to a prisoner” would basically be all information in a prison.
In some cases, Petchenik argued, the state kicks things up to the AG and hopes for a favorable outcome.
“I think they understand that very few, if any, people are in a position to challenge the rulings, whether that's lack of resources or being scared out of that,” she said. “I think a war of attrition Is a good metaphor.”
Bill Aleshire, an attorney who focuses on government accountability and transparency, agreed. “That’s not a good attitude about transparency, but they're not alone,” he said.
Aleshire said the documents TPR has requested are not only public, but several, like a use-of-force report, are mandatorily released. Former attorney general and now Gov. Greg Abbott agreed in a 2012 ruling.
“The submitted information consists of records involving a use of force, an alleged crime involving an inmate, and employees' conduct on the job. We find these records pertain to investigations of the named employee's conduct, and, therefore, are not 'about an inmate,' " he wrote in an opinion about a request to obtain records dealing with a former employee’s disciplinary records.
'Subject to required disclosure'
TDCJ has argued that releasing use of force reports or incident reports would hurt an ongoing investigation. But these documents are often available through other law enforcement agencies, including the state’s own inspector general, who released the incident report to TPR — contradicting TDCJ.
Aleshire argued even if it does impact the investigation, the law is that it was a crime against an inmate, so they must release these basic documents.
“That information is subject to required disclosure. And so that means they can't use the litigation exception,” he said, referring to another popular exception governments seek.
The litigation exception basically says that because there are indications the state could be sued, they aren’t required to release it. This is another of the exceptions TDCJ claimed for a number of TPR's requests.
It isn’t just TDCJ that uses it to get around open records requests. Aleshire said he finds it in every level of Texas government.
“I just don't think they have a good idea of what their job is in terms of being public servants,” he said “They can't be accountable to the public for everything they do — particularly if every mistake that might be made is concealed from the people who own their government.”
More importantly, the documents can always be redacted — which the state has not offered to do, and in some cases it has argued that would be impossible because essentially TPR knows too much already.
In an emailed response, a TDCJ spokeswoman said she disagrees with the opinion that it misapplies exceptions. She said the department follows the law, responds to 1,550 open records requests every month and is dedicated to providing the community with information.
TPR awaits a response from the attorney general on whether TDCJ must release the documents.
