How many died from COVID in Dallas jail? Sheriff’s Department won’t say, citing records law

Public also unable to learn how many were tested for the virus and received a positive result, frustrating activists.

By Brett Jaspers, KERANovember 21, 2022 9:45 am, , , ,

From KERA:

An exception to Texas’ public information law is helping the Dallas County Jail keep COVID-19 information shielded from public view. It’s frustrating activists who still want to know what policies Sheriff Marian Brown used to prevent infections during the pandemic.

The public also can’t learn how many people were tested at the jail, how many tested positive, and how many died.

“It really raises further questions … what is it exactly that they need to hide from the public about how people are being treated while incarcerated in Dallas County Jail?” said Jonathan Guadian, a community organizer in North Texas.

Bret Jaspers / KERA

Community organizer Jonathan Guadian is trying to find out how the Dallas County Jail responded – and continues to respond – to COVID-19.

Brown’s office has not provided data sought by Guadian and KERA in open records requests, arguing the information is related to a court case. The Texas’s public information law says there is an exception to releasing information if it’s “relating to litigation of a civil or criminal nature to which the state or a political subdivision is or may be a party.”

Until recently, there was a case pending against the sheriff related to COVID, Sanchez v. Dallas County. But that case was dismissed in September.

Here’s some background: in 2020, Oscar Sanchez and other inmates sued the Dallas County Sheriff’s Department, which operates the jail. They said jail officials did not enact a social distancing policy or comply with most of the Centers for Disease Control and Prevention’s COVID guidelines for jails. The sheriff’s office disputed that accusation and said detention officers enforced social distancing and that inmates had plenty of soap and other supplies.

The case ground to a halt in mid-2021 when the original judge issued a stay. That stopped the release of data to the inmates and their attorneys. But by the summer of 2022, Sanchez and the other plaintiffs were no longer in jail custody. A new federal judge called the case “moot” and dismissed it with the agreement of all sides.

The dismissal would seem to trigger the release of the COVID data. A February letter from the Texas attorney general’s office stated that the exception “ends once the litigation has been concluded.”

But an attorney for the sheriff’s department, Elizabeth Lutton, continues to say the information can be withheld under the same exception because another lawsuit may be coming. And her argument could imply the scope of what’s shielded goes beyond COVID.

“The information requested clearly relates to any COVID-19 response or jail health related future litigation,” Lutton said in a recent letter requesting another ruling from the state AG.

The Texas Public Information Act says there is an exception to the release of information if a case is “reasonably anticipated.” As evidence of an anticipated lawsuit, Lutton points to statements from a lawyer on the Sanchez case in The Dallas Morning News soon after it was dismissed.

According to The News, the attorney indicated it was possible attorneys could bring a new lawsuit with other inmates currently in the jail. But the statements are far from definitive.

Savannah Kumar with the ACLU of Texas, which also represented the inmates in Sanchez, told KERA her organization has not said “anything concrete” about future litigation against the county jail.

“We know that jails are places where immense harm happens and that this harm might trigger, in any case, a lawsuit against a jail, generally speaking,” Kumar said. “But the fact that unconstitutional things might be happening in jails that might provoke or invite a lawsuit simply cannot be a reason to withhold important public information from the community.”

Bret Jaspers / KERA

Dallas County Sheriff Marian Brown has pushed back on releasing information about COVID deaths in the Dallas County Jail.

An email and phone call to a Sheriff’s Department spokesperson were not returned on Friday.

Austin attorney Bill Aleshire, an expert on the state’s public records law, said he has seen the litigation exception abused by government agencies. And that it has a damaging effect on the public’s ability to “see inside its government.”

“The most controversial issues about how a government acts or doesn’t act are exactly the kinds of things that end up in litigation,” Aleshire said. “So what this exception to disclosure is doing is hiding from the public some of the most important things that the public needs to know about.”

Aleshire said he thinks the Texas Legislature should get rid of the litigation exception entirely. One reason is that government agencies can have it both ways.

“I’ve seen this abused where the governmental body will waive that exception and disclose the information they think will exonerate the government or its officials,” Aleshire said. “But withhold the information that might show they did something really bad.”

It’s unclear what the records division of the attorney general’s office will decide, although Aleshire thinks it will side with the Dallas sheriff.

Guadian said the COVID-19 data is vital even if that particular pandemic has diminished.

“It can give us direction on what policy changes need to be implemented to prevent another pandemic from happening inside the jails and then affecting the community around it,” he said.

The jail population on Friday was 6,078, which is over 85% capacity.

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