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March 9, 2000

Mr. James L. Hall
Assistant General Counsel
Texas Department of Criminal Justice
P.O. Box 4004
Huntsville, Texas 77342

OR2000-0943

Dear Mr. Hall:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Texas Government Code. Your request was assigned ID# 133960.

The Texas Department of Criminal Justice ("TDCJ") received a request for all documents concerning the Diagnostic Intake Tester selection board that took place on September 16, 1999. You claim that the requested materials are excepted from disclosure under section 552.122 of the Government Code. This opinion only addresses "the questions and answers that were part of the documentation relating to that selection [board];" we assume that you have released the remainder of the requested information.(1) We have considered the exception you claim and reviewed the submitted information.

Section 552.122(b) excets from disclosure test items developed by a licensing agency or governmental body. In Open Records Decision No. 626 (1994), this office determined that the term "test item" in section 552.122 includes any standard means by which an individual's or group's knowledge or ability in a particular area is evaluated, but does not encompass evaluations of an employee's overall job performance or suitability. Whether information falls within the section 552.122 exception must be determined on a case-by-case basis. Open Records Decision No. 626 at 6 (1994). Traditionally, this office has applied section 552.122 where release of "test items" might compromise the effectiveness of future examinations. Id. at 4-5; see also Open Records Decision No. 118 (1976).

You indicate that the department will use the same questions and preferred answers to evaluate applicants in future interviews and state that the "oral examinations" are "devices by which the applicants' 'knowledge or ability in a particular area is evaluated,'" quoting Open Records Decision No. 626 at 6 (1994). After reviewing the submitted documents, we find that only one question, number 6, is not a protected "test item." Question 6 "does not involve an evaluation of an applicant's knowledge in a particular area," so it must be released. Id. at 8. The remaining questions "measure the skill, knowledge, intelligence, capacities, or aptitudes of an individual" and are a "standard means by which an individual's or group's knowledge or ability in a particular area is evaluated." Id .at 6. Consequently, questions 1 through 6 and their model answers and actual answers may be withheld under section 552.122(b). Id. at 8 (when answers to test questions might reveal the questions themselves, the information may be withheld under section 552.122); see Attorney General Opinion JM-640 at 3 (1987). TDCJ must release Question 6.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408, 411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

William Walker
Assistant Attorney General
Open Records Division

WMW/CHS/ljp

Ref: ID# 133960

Encl. Submitted documents

cc: Ms. Sophia Ann Isaac
P.O. Box 1152
New Caney, Texas 77357
(w/o enclosures)


 

Footnotes

1. Requestor indicates in her letter that you have not released information related to OR1999-131791. In that decision, as here, we interpreted the open records request narrowly to concern only test questions and answers. This is so because you couched your request to us in those terms. Clearly, the request encompassed a larger variety of documents which we presume you have released. By failing to challenge the release of those documents in that request, as here, you impliedly acknowledge their public nature and obligate yourself to their release. Failure to release public documents following a proper request can result in criminal penalties:

An officer for public information, or the officer's agent, commits an offense if, with criminal negligence, the officer or the officer's agent fails or refuses to give access to, or permit or provide copying of, public information to a requestor as provided by this chapter. Gov't Code 552.353(a).
 

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