As City Starts Opening Secret Police Misconduct File, New Contract Could Seal It Back Up

A new five-year contract would seemingly close the G file back up – at least partially (image by Zeke Barbaro / Getty Images)

Just as city and Austin Police Department officials move to slowly open up the police misconduct black box known as the “G file,” labor negotiations between the city and police association could get us back to square one.

The G file has been the topic of much legal debate in recent years. State law allows police departments to keep certain officer misconduct records secret. For example, when an officer is suspended or fired, internal records about that misconduct become public, but if a police chief chooses not to discipline the officer, records of the internal investigation may be hidden from the public. In 2023, Austin voters chose to do away with APD’s G file, as part of a suite of police transparency measures laid out in the Austin Police Oversight Act. More than a year later, the city still had not moved to eliminate the G file.

Just two weeks ago, it seemed that the city was finally caving. After a judge ruled that the city’s decision to maintain a G file is unlawful due to the passage of the Oversight Act, City Manager T.C. Broadnax began taking steps to unseal those records.

But a tentative labor agreement between the city and Austin Police Association throws a wrench in that process. Not only would this five-year contract be the most expensive contract in APD history and severely constrain the city budget, it seems it would also close the G file back up – at least partially. A copy of the contract obtained by the Chronicle includes a grandfather clause that would keep existing records in the G file secret, while preventing future records from being shielded in the same way.

Advocates for police transparency have targeted the G file for a long time. But in recent weeks, an ongoing civil trial over a police shooting has shed light on how the city has interpreted the G file’s power and scope to seal even more information, beyond just records inside the file.

G File’s Scope

When advocates talk about the value in opening up the G file, they’re usually talking about making records available to the Office of Police Oversight and, to a certain degree, the broader public. But the G file has also allowed the city to keep information out of the courtroom in cases of police violence.

One such case is ongoing. Up until last week, the city had been using the G file to keep court filings in a civil lawsuit over a fatal police shooting confidential. The lawsuit is over the killing of Alex Gonzales, who Austin police officers Gabriel Gutierrez and Luis Serrato fatally shot in 2021 as Gonzales opened the back seat of his car where his infant child sat. The officers claim they thought he could be reaching for a gun.

Last year, a Travis County grand jury declined to bring criminal charges against either officer. Then-Chief Joseph Chacon also declined to discipline them. With a criminal trial off the table, the family of Gonzales sued in civil court. As they prepared for trial, attorneys representing the plaintiffs probed APD’s internal affairs investigative process, including through deposing a former internal affairs lead investigator and three former APD chiefs.

The city fought to keep those sworn testimonies of police chiefs from public view. In May, the city successfully argued that this testimony should be confidential because it contains references to G file material. City attorneys argued that the confidentiality granted by the G file extended to testimony that discussed the internal affairs investigative process generally, separated from the facts of the specific investigation into Gutierrez and Serrato. In effect, the city argued that merely discussing the G file, as policy, rendered those portions of testimony as G file material and, thus, protected from public view.

They argued that statements from former chiefs Robin Henderson, Joseph Chacon, and Brian Manley – the three police chiefs who preceded APD’s current leader, Lisa Davis – should all be confidential. Then, last week, the city abruptly changed course. In a Sept. 19 filing, they agreed to withdraw their confidentiality designations.

Austin’s Office of Police Oversight, formerly known as the Office of the Police Monitor (photo by John Anderson)

Partial transcripts of the depositions shared with us by Donald Puckett, one of the plaintiff attorneys, reveal how the city and APD have used the G file to minimize transparency into department accountability practices.

All three chiefs testified that before making a disciplinary decision, they would meet with assistant chiefs to establish justification for their decision, but if they decided against discipline, they never documented their reasoning. State law permits this practice.

The underlying facts and evidence supporting a chief’s decision are locked away in the G file, inaccessible to anyone outside of the department. Chiefs could explain – but don’t have to – how they arrived at a no-discipline decision (meanwhile, if an officer is suspended or fired, they do have to write a memo justifying it).

The status quo, where chiefs never explain their decisions not to discipline an officer, creates barriers to effective oversight, as noted in 2011, 2016, and 2022 by the U.S. Department of Justice, the Office of the City Auditor, and consultant firm Kroll & Associates, respectively.

A DOJ investigation into APD that concluded in 2011 resulted in four recommendations for reform. One was that APD should work with the city’s civilian oversight agency (currently known as the Office of Police Oversight, but then it was the Office of the Police Monitor) to provide a “qualitative analysis” of the department’s internal affairs process to help improve it.

Five years later, after the city auditor uncovered a raft of issues relating to how APD handles complaints against officers, the audit recommended the chief “implement a process to document justifications for discipline, including how disagreements with the Police Monitor are addressed.” The department disagreed, saying that doing so would serve no purpose since the document could not be shared with anyone outside of the department.

In 2022, Kroll & Associates offered similar recommendations. Chiefs should author “a brief memorandum ... explaining the factors that were considered in determining discipline, and how the evidence was weighed in making the findings.” Doing so, Kroll’s consultants wrote, “would promote consistency and provide greater transparency and accountability.”

Particularly, Kroll noted, this could be useful in cases where the same officer faces multiple allegations of a similar nature over the course of their career. “An allegation that may appear to be invalid or unfounded in one instance may take on added merit when similar allegations are repeatedly made against the same officer,” the consultants wrote.

The benefit of implementing these recommendations would be two-fold. One, it would require the police chief to create a paper trail that future chiefs could take into account when making future disciplinary decisions. Two, outside entities auditing the department’s internal affairs process would have more information to draw on.

In the depositions, the three chiefs acknowledged that they were aware of at least one of these recommendations, but admitted that none were ever fully implemented.

Without a G file, the recommendations would take on new value – in theory, the memos written by chiefs could be available to the public as well as oversight entities, providing a new level of transparency into APD’s accountability practices.

But, as beneficial as it may be for chiefs to document their reasoning for no-discipline decisions, if council approves a police contract that preserves secret files, the public might not get to see those explanations anyway.