On the Records: Case Open, File Closed

In the course of working on my Hank Skinner stories, I wanted to find out more about the documents that Gov. Rick Perry and the Texas Board of Pardons and Paroles had on file about the death row inmate, who was convicted of killing his girlfriend and her two sons but has always maintained his innocence. Since those stories were published, I'd also seen a number of blog posts discussing efforts to urge state officials to allow DNA testing of evidence that Skinner, who's set to be executed on February 24, claims could prove he didn't commit those crimes. I wanted to see what letters, if any, might be pouring in.

So last week I filed open records requests with Perry's office and the Board of Pardons and Paroles, asking for correspondence, documents and reports related to the Skinner case. I haven't gotten a response from the governor's office yet, other than a notification that they received my request. But yesterday I got a letter from the Board of Pardons and Paroles, informing me that nearly all of the information I asked to see is considered confidential under an open records ruling that then-Attorney General John Cornyn issued in 2001.

According to the ruling, six categories of information are considered confidential if an inmate might seek executive clemency. The categories are: Department of Public Safety criminal history information; execution summaries and prison records; recommendations from trial officials; letters from victims and supporters; letters from inmate and supporters; and general correspondence from the public. Cornyn's ruling states that the confidentiality protects not only the prisoner's privacy but also "the deliberations of the board by encouraging frank and open discussion in its decision-making process." What's more, the confidentiality exemption from open records laws continues even after the inmate has been executed, according to the ruling.

The ruling brought up a lot of questions in my mind about transparency in the decision-making process at the Board of Pardons and Paroles, so I posed those questions to Cornyn. I asked how the public would be able to discern whether the board is giving adequate attention to reports such as the one in the Cameron Todd Willingham case that questioned the legitimacy of evidence indicating he started the fire that killed his children. Since DPS criminal records are mostly already public information, I asked why those would be considered confidential when in the hands of the parole board. I asked Cornyn what "frank and open discussion" would be left to be had by the board if the state had already executed the inmate. And, finally, I asked in light of recent questions about the possibility that Texas executed an innocent man in Willingham's case, would Cornyn still contend that all this information should remain confidential.

Initially, Cornyn spokesman Kevin McLaughlin said via e-mail that he'd try to get a response to me today. But instead, I received a second e-mail from him that said, "After further review ... it would be more appropriate for you to talk to the Texas AG's office regarding this matter."

I sent my questions to a spokesman for Attorney General Greg Abbott this evening. I'll let you know when I hear back.

UPDATE: Here is the response I received from Abbott spokeswoman Lauri Saathoff. The gist is that the AG's office just tells agencies what the open records laws require or allow; the Legislature makes it, so she recommended I talk to them:

"As is the case with all legal rulings by the OAG -- whether they are open records rulings or Attorney General Opinions -- the open records ruling you inquire about speaks for itself. Thus, we cannot elaborate on the meaning of the decision.
 
However, we draw your attention to the language of Section 508.313(a) of the Government Code:
 
'(a) All information obtained and maintained, including a victim protest letter or other correspondence, a victim impact statement, a list of inmates eligible for release on parole, and an arrest record of an inmate, is confidential and privileged if the information relates to: (1) an inmate of the institutional division subject to release on parole, release to mandatory supervision, or executive clemency;'.
 
Here is the link to the Section 508.313(a):
http://www.statutes.legis.state.tx.us/Docs/GV/htm/GV.508.htm#508.313
 
In your underlying email to Sen. Cornyn's office, you wrote:
 
'The Board responded and said that basically most, if not all, of the information I asked for was confidential based on a 2001 open records ruling that Sen. Cornyn wrote when he was Texas AG.'
 
Please note that the Attorney General's Office is not authorized to -- nor does it -- make law. Rather, that authority lies exclusively within the Legislature's purview. Thus, although the board cites a 2001 open records decision for the ability to withhold information, it is the Legislature that decides what information should -- and should not -- be available to the public. This office merely informs governmental bodies whether or not the Legislature has authorized them to withhold information.
 
To the extent you have policy questions about what the law should be -- or the law's implications on the public's access to information -- those questions should be directed to the Legislature."