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Attorney General orders Bosque County to release information

Oct 14th, 2013 | Category: Bosque County

September 30, 2013

by Jim Parks, Watchdogwire

BULLETIN: A spokesman at the Sheriff’s Office said at 10 a.m. on Monday, Sept. 30, they have no record of a public information act request. “I can’t find find the request,” she said, after going through several files.

“You can file an information request. We will have ten days to seek an AG’s opinion,” said Kelly Olson, who was taking over for the day for Sharon Wilson, whom, she said, is the custodian of record for the Bosque County Sheriff’s Office.

MERIDIAN, Texas – A blanket denial of information regarding a matter under investigation by law enforcement is not legal, according to an Attorney General’s Opinion released late last week.

When a Clifton woman named April Troyn died in custody nearly five months ago, certain basic public information about her death was requested. Bosque County Sheriff Anthony Mallot rejected the request. His staff responded that the matter is under investigation.

County Attorney Natalie Koehler sought the advice of the Texas Association of Counties, who referred her to a Tyler attorney named Robert S. Davis.

Davis requested an opinion from the AG’s office, a near-standard practice by Texas public officials who do not wish to release information. They say – routinely – that they have 10 days to respond.

Not true, according to Kenneth Leland Conyer, an Assistant Attorney General with the office’s Open Records Division. The truth is, the government agency has 10 business days in which to seek an opinion. Officials must also submit within 15 business days written comments stating why they feel the information may be excepted; a copy of the written request for information; a copy of the specific information requested; and an affidavit stating when the request was received.

Conyer began by informing the attorney retained by Bosque County that “…you acknowledge, the sheriff’s office did not comply with its ten-business-day deadline under Texas Government Code Section 552.301(b) of the Government Code,” and that “the sheriff’s office did not comply with its fifteen-business-day deadline under Section 552.301(e)…”

He added, “When a governmental body fails to comply with the procedural requirements of (the law), the information at issue is presumed public and must be released unless there is a compelling reason to withhold it.” He listed numerous cases as an authority.

The sheriff’s office previously released news of Troyn’s death to news media at Waco, including a daily print outlet and a television broadcaster. According to Conyer, “…if a governmental body voluntarily releases information to any member of the public, the governmental body may not withhold such information from further disclosure unless its public release is expressly prohibited by law or the information is confidential under law.”

The sheriff’s office refused to release certain information regarding Troyn’s demise because officials believe it describes her medical condition, which, they held, is a subject of federally protected privacy. Conyer disagreed, saying that only applies as to that privileged information which consists of “an individual’s protected health information…(which) includes any information that reflects that an individual received health care from the covered entity.” She received no health care while in custodial detention.

“You do not inform us the sheriff’s office is a covered entity…”

Information at issue “includes a custodial death report” that is required to be sent to the Texas Commission on Jail Standards. A standard form of the Office of the Attorney General, it is a four-page questionnaire consisting of extremely detailed inquiries, such as the date and time of arrest; the date and time the person was placed in custody or incarceration; the date and time of death; where the event that caused the death occurred; the manner of death; what type of treatment the deceased had received; if there were injuries, how the deceased received them – from officers, other inmates, people with whom they had a dispute; had the deceased been receiving treatment for the medical condition after admission to the jail’s jurisdiction; did the deceased at any time threaten the officers, fight or attempt to flee from custody; what type of custody/facility was the offender in/at prior to the time of death; the specific type of custody/facility; and an additional, optional space in which to attach remarks.

“The Office of the Attorney General has determined the four-page report and summary must be released to the public…” Conyer wrote.

Although the matter is under investigation by both the department and by Texas Ranger Jim Hatfield, the law “does not except from disclosure ‘basic information about an arrested person, an arrest, or a crime…’” He added that the law refers to “the basic front-page offense and arrest information held to be public in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W. 2d 186-88.

An experienced criminal investigator named R.S. Gates, who retains his Texas Peace Officer’s Certification, helped prepare the Public Information Request. At the time, he said he thought public officials’ withholding the information could be prosecuted as a crime, under the provisions of the statute.

He is now convinced the opinion he formed at the time is correct.

“I want it all,” he said. “I submitted a written request for it almost four months ago. I plan to continue my request for the information that the statute says I can have. The statute says that this information will be made promptly, and they dragged this out for almost four months.

“It’s not that the public is entitled to the information. The point is, the information belongs to the public. They (public officials) are merely the custodians. The only burden I have is, I have to want it. It already belongs to me.”

 

 

Jim Parks is a former journeyman print reporter with experience on dailies from California to southern Florida, and throughout Texas.

 

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diane

Had a similar problem in Virginia sheriff’s office about obtaining a report of an investigation of a Texas citizen, even after the investigation was completely closed! It took repeated calls to investigators and their supervisors and THEN a freedom of information request to get the information. But we got it. Good story and good suggestions!