Houston officials often choose what to release to public

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Public officials often get to search their own records and choose what to turn over. (KTRK)

Houston Mayor Sylvester Turner's former press secretary Darian Ward is now in the rare position of facing criminal charges for failing to turn over documents under the Texas Public Information Act after an ABC13 investigation.

The indictment highlights a problem journalists have long lamented around city hall: when asked, public officials many times search their own records for information requested and get to choose whether to follow the law and turn over everything they find or to keep aside records that might be damaging.

In Ward's case, she was asked to search her own emails and hand over anything non-work related.

She told her boss she only had 30 pages of documents.

INTERACTIVE: From investigation to resignation - the fall of Darian Ward

When the city's investigative body took a second look, they determined she had more than 5,000 that met the threshold. In a discipline letter written by her manager, Ward was chastised for running an "intense and sustained promotional and development campaign" for a non-city related entity.

Turner told reporters after Ward was back on the job that he would look into the practice, but further questions by ABC13 found no official changes have been made.

When ABC13 sent requests for emails directly to the Information Technology department, which maintains and controls the city email servers, a representative rejected the requests and instructed us to instead send them to the mayor.

State law requires the requests to go to whomever hold the records. Despite that, all requests were rejected and we were referred to the mayor's office.

When we asked for the policy or communication related to how these situations are supposed to be handled, that request was rejected under the guise of "attorney-client privilege."

Worse, many public officials, including Turner, maintain separate email addresses, sometimes on city servers, sometimes not. Emails that are sent or received from that private email address aren't archived through the city system and are only turned over when a public official chooses to follow the law.

While text messages, direct messages on Twitter or Facebook or any other communication through an official means are also public record, it is up to that official many times whether or not to admit they have those communications to requestors.

While all of this is against the law, it is rarely prosecuted and punishments are rarely harsh.

Ward faces a fine of up to $1,000 and six months in jail. Experts suggest she will never serve any jail time.

But while those experts suggest prosecution is rare, they also suggest any case like this serves as a loud reminder that public officials can be held criminally liable for violations of the Texas Public Information Act, a key tool for reporters and citizens alike trying to figure out what their government is up to.

If Trent Seibert, a journalist at the Texas Monitor, had never asked about the records, Ward's "intense and sustained" work on city time for non city related issues may have never been uncovered. If Ward's original response of just 30 records had gone unchallenged, the same is likely true.

Ward's attorney argues that personal emails are not subject to the open records act, but there is no language in the law that exempts personal work or discussion while using taxpayer-owned equipment.

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