A court decision could change police transparency in Austin. Here's what we know.

The city of Austin's legal team and activists are expected to make arguments in court Tuesday concerning whether the Austin Police Department can continue to maintain a type of confidential police file.

A judge's decision could largely change the kind of information citizens can obtain about Austin police officers, especially relating to their disciplinary and complaint history.

These arguments are for a lawsuit filed in December by the advocacy group Equity Action against various city leaders, including interim City Manager Jesús Garza, interim Police Chief Robin Henderson and Office of Police Oversight Director Gail McCant.

Recap: What's in the Equity Action lawsuit?

The lawsuit states that the city has failed to implement the Austin Police Oversight Act, an initiative also known as Proposition A, which voters approved last May by nearly an 80% margin.

A major basis of this lawsuit, and one of the largest points of contention with the police union, has been the department maintaining "G-files."

What's a G-file?

Basically, a G-file is a confidential personnel file for each police officer. In that file are copies of all complaints or internal affairs investigations into that officer that were said to have no merit or did not result in any disciplinary action.

That type of file is allowed under Texas Local Government Code Chapter 143.089(g) — the "g" at the end is how the colloquial term "G-file" originated. Essentially, Texas law says that police departments (and fire departments) can have personnel files that are only for the department's use.

Here's part of that law: "A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use."

Generally, a personnel file for any type of public servant can be released under the Texas Public Information Act. Through this law, however, police can withhold the G-file from the public because it's "for the department's use."

What's important about the G-file?

The ordinance approved by Austin voters last year called for the Police Department not to use G-files anymore.

Advocates see the G-file as a barrier to transparency within a police department. Meanwhile, the police union holds steadfast that releasing this information could harm officers, Austin Police Association President Michael Bullock has told the American-Statesman, because any complaint lodged against an officer could become accessible to the public — including those that are said to have no merit.

But if voters said they don't want it, why does APD still have it?

The law says that a department "may maintain" this file. The keyword in this, according to previous arguments by the city's legal team, is "may." By telling the department it can't have a G-file, the city would be tramping on what it perceives as a police department's right awarded by state law.

Members of Equity Action, such as Rebecca Webber, said this argument is why the organization added Henderson, the interim chief, to the lawsuit. Essentially, if the city claims it can't tell the department to get rid of the G-file, then the police chief can make this decision.

However, Webber said Equity Action believes this responsibility does not fall on Henderson and that the city's interpretation of the law is incorrect.

Equity Action believes the city manager has authority over the Police Department and has the right to order the department to stop using this confidential file.

So who's right?

That's what a judge will decide.

Equity Action filed to have parts of the lawsuit decided in summary judgment, and so both sides will forgo a trial for those parts, with the lawyers arguing before the judge Tuesday.

The section of the lawsuit that will be decided by the judge is related to the G-files.

Do all law enforcement agencies have these confidential files?

No. Sheriff's offices don't have G-files, nor does the Dallas Police Department, according to a presentation by the city's legal team in August 2022.

In this PowerPoint, the city said that many of the union's concerns — that the personal information of an officer would be released or that it would "tarnish" an officer's reputation — would not be an issue if the G-file went away.

This argument about releasing sensitive information was used in part during the first day of bargaining by the police association's lead negotiator, Ron DeLord. But a week later, the association essentially admitted that provisions in the Texas Public Information Act would keep personal information from being released.

Why does all of this matter?

The lawsuit and concerns about the G-file were said to be keeping the city and the police union from agreeing on a new long-term contract. At a time when the department is facing a large number of vacancies, a new contract is seen as a surefire way to retain and recruit people.

Generally, provisions and aspects of the G-files are worked out in the contract between the city and the Austin Police Association.

However, the city and the union began negotiations March 13 and then paused them until April 18.

Whatever a judge decides, the Police Department appears poised to stop having G-files because the city has said it will not approve a contract that is not in compliance with the Austin Police Oversight Act.

For activists, who believe a judge will rule in their favor, getting this settled will allow a crucial aspect of the Austin Police Oversight Act to be implemented.

So where does the city of Austin stand on G-files?

The city's stance has appeared at times contradictory. On the one hand, city leaders have said they don't have the legal obligation to get rid of G-files, but on the other hand, they have said they cannot pass a long-term contract with the union unless it complies with the oversight act (meaning no more G-files).

Interim Assistant City Manager Bruce Mills clarified that stance, telling the Statesman that the city is arguing that it cannot just get rid of the G-files without bargaining over those provisions with the Austin Police Association.

What's happened with the lawsuit?

The Austin Police Association and Bullock filed a motion to intervene in the lawsuit last month. Equity Action fought this effort and asked to keep both the union and its president from being a part of the lawsuit.

Arguments were made before Judge Maria Cantú Hexsel in the 53rd Civil District Court, and Hexsel ruled that the Austin Police Association and Bullock would be barred from intervening. The union has challenged that decision in the 3rd Court of Appeals and is asking the Travis County district court to stop Tuesday's hearing while it awaits the appeal decision.

Will the public get access to these files?

It's uncertain what will happen. With Mills' comments, it appears there's a route forward in which some of the confidential materials previously held in the G-files could remain hidden from the public in some other capacity depending on what happens during bargaining sessions with the association.

Kathy Mitchell, senior adviser for Equity Action, previously told the Statesman there are concerns that both sides could agree to an essentially unchanged oversight system with a new name, noting that police oversight advocates are "not looking for a G-file under a different name."