"DENIED"

KXAN-TV
04/22/2018

A teenager’s violent death in Austin Police custody sparked this KXAN investigative series. What began with questions about how Zachary Anam obtained a gun and shot himself in the back of a police cruiser eventually grew into a long fight for records about officers’ actions that day and the discovery of a loophole in the Texas Public Information Act that allows police to withhold crucial evidence in cases like this for decades. Legislative efforts to close that loophole have failed, but it has not stopped the families who have been denied video and other records detailing their loved ones' final moments from speaking out. Now, our ongoing coverage reveals that loophole being broadly used, thwarting accountability and preventing the closure of at least dozens of cases across the state — a discovery that's also fueled renewed efforts at the State Capitol to change the law.

That law was intended to protect the privacy of people wrongfully accused of crimes. It gives police discretion to withhold information in closed cases if a suspect did not go through the court process. But it can also result in confusion and mistrust of those meant to serve and protect. A survey of other states reveals Texas’ law may be unique in giving police the choice to deny closed case files. This is especially concerning when suspects die in their custody. Because that person never enters the court system, police can permanently withhold their case records.

KXAN focused its research on the state's 21 largest law enforcement agencies, which account for more than a quarter of the 4,200 in-custody deaths since the loophole was created two decades ago. Our analysis revealed at least 154 public information requests related to 52 in-custody deaths denied under that loophole. The results are likely far greater, as these are just 21 out of 2,696 law enforcement agencies across the state, and Texas has a two-year retention schedule when it comes to such open record requests made to those agencies.

We identified custodial death cases by using data and reports found on the Texas Attorney General's website. When trying to cross-reference those deaths with attorney general rulings upholding specific law enforcement agencies' denials, we faced challenges, as most agencies — including the attorney general's office — do not track the types of requests they receive or the legal citations they use to withhold information from requestors.

So we submitted more than 100 public information requests to local, state and federal law enforcement agencies for this investigation. Most of our requests were for other individuals' past open records requests related to deaths within those Texas-based agencies. We wanted to find out how often the loophole is being used, along with the associated denial letters and attorney general rulings. It was necessary to search through each request individually to determine if it met the criteria, then build our own Excel spreadsheets and database of findings. There was no uniform format or search term for the records or data, so we had to customize requests and death lists for each agency, build the database from the ground up, then analyze it ourselves.

While our initial requests for records spanned 20 years, we later learned Texas agencies can legally destroy the specific public information requests we sought after just two years. It forced us to refine some of our searches and explain to readers and viewers that the results are likely far greater but impossible to know for this reason.

Several of the agencies also denied KXAN video, audio and other records. However, we worked to identify and obtain many of those elements from outside agencies that might have independently investigated certain cases but had no reason to withhold the evidence. Still, other agencies sent several of our requests to the attorney general for review, which we indicated in our stories to highlight the difficulty behind this issue.

Crafting this story was a true challenge, as many of the elements that might have normally been used for storytelling were withheld by police. KXAN used those denials and the limited information released to explain the importance of this issue and the frustration behind it. We filed dozens of additional open records requests with key law enforcement agencies and received thousands of documents and audio/video files – 911 calls, police dispatch audio, dash and body camera video and internal investigation recordings in cases throughout Texas. They provided further proof that law enforcement often uses this measure to keep details from reporters, lawyers and even families looking for answers and sometimes even evidence for legal action. One high-profile example is the shooting of five Dallas police officers in the summer of 2016, where the shooter was killed before he could be brought to justice. It is among many cases featured in our investigation.

In the most recent legislative session, state lawmakers considered amending the Texas Public Information Act and requiring police to release closed case records if suspects die in their custody. The bill failed, but KXAN’s project has refueled the efforts of a key state lawmaker known for his work to increase public access to government information. He has since filed a new bill for the 2019 session, using our data and case examples to push it forward. His legislation not only focuses on eliminating the loophole, but also requires better retention and tracking policies for open records requests to easily allow greater scrutiny of the process when problems arise.

Following our reports, the parents of Zachary Anam filed a wrongful death lawsuit against the City of Austin, citing the police department’s history of missing weapons during suspect searches. The parents of another suspect we featured decided to proceed with an excessive force lawsuit against the Mesquite police officer who shocked their son more than 50 times before his death. And, our coverage of a Travis County inmate who died in custody has prompted emergency officials to launch a clinical investigation into the case. It could result in discipline, increased training and updated technology for paramedics to better gauge cardiac events. Our report uncovered video and other records of the painful days leading up to the man’s death and his interactions with jail staff in those final hours. Our research provided his family with enough evidence to explore legal options against the county. KXAN also filed an official complaint with the attorney general regarding suspected stalling tactics related to several records withheld by the county, lack of transparency and over-extended timeframes responding to requests. The county is currently seeking an attorney general ruling to continue withholding other crucial details in the case and has also filed a lawsuit against the agency to keep other documents KXAN requested secret.

KXAN took a unique approach to this project, launching the initial episodes first on social media – one episode of the series per day on Facebook, linking to a custom URL – DeniedProof.com – so interested viewers could watch all episodes at one time and our ownership company's other 12 Texas stations could promote and air the investigation, expanding its reach across the state. The specialized page also had several interactive features, including: case profiles, infographics, a story map and a quiz to give viewers details of actual cases and let them make their own decisions about whether police should have released video related to suspect deaths.

In addition to heavy social promotion and a video trailer for the digital project and on-air series, KXAN investigators also plastered bulletin boards throughout the market with card stock featuring the URL and logo to drum up grassroots interest. We sent personalized, showcased emails to key lawmakers and leaders in this field throughout the state and nation. Investigators also appeared on several radio stations for longform interviews, in addition to open records panels, Facebook Live and television previews – ahead of the on-air launch of the series at the end of the week. To follow-up, KXAN released a specialized Instagram story and also published a longform article on the site of its media partner – the Texas Tribune. We also aired a half-hour special on the topic, including a political roundtable to take a deeper dive. A second chapter of the project included an extended web article with an interactive map allowing users across the state to explore agencies and casefiles in their regions with an immersive jail death timeline.

The response was overwhelming, even beyond record on-air ratings and digital/mobile user metrics for such a project at our station. Open records groups throughout the country shared the project on their platforms, several media trade publications highlighted our innovative rollout and content, and Investigative Reporters & Editors featured the project on its IRE Radio Podcast and "Extra! Extra!" blog. State lawmakers on the House Government Transparency & Operation Committee also took to social media to highlight the investigation. Additionally, the families of the deceased suspects in our reports reached out to express their appreciation and support for KXAN’s efforts to shed light on their cases and the greater need for action.

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Submitted Josh Hinkle.