Open Records Decision No. 326
December 21, 1982

	Re:  Whether unsuccessful applicant may view application file

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas  77002

Dear Mr. Driscoll:

	You have asked for a decision under the Open Records Act, article 6252-17a, 
V.T.C.S.  In your letter to this office, you state the following facts.

	In December 1981 an individual applied to the Harris County Sheriff's 
Department for employment as a deputy sheriff.  Prior to the completion of the 
application process, she began “visiting in one of the District Courts,” during which time 
she “may have acted as the bailiff for that court, apparently at the direction of the District 
Court Judge.”  She later signed an employment contract “in anticipation of working for 
the Sheriff's Department.”

	During the application process, the sheriff's department decided that this applicant 
did not meet its requirements for employment.  You state that the sheriff never signed the 
employment contract, the applicant was never deputized, and she never took the oath of 
office.  You further state that the department never instructed her to work as a bailiff in 
the district court.

	This applicant recently asked the sheriff to pay her for the time she spent in the 
district court.  She also requested access to her pre-employment file and copies of certain 
documents contained therein.  We understand from the copy of her request letter that you 
sent to this office that the documents in question include her application for employment, 
the employment contract that she signed, and two psychological examinations and their 
results.  You contend that sections 3(a)(1), 3(a)(3), and 3(a)(8) of the Open Records Act 
authorize you to deny this request.

	Section 3(a)(3) excepts from required public disclosure:

information relating to litigation of a criminal or civil nature and 
settlement negotiations, to which the state or political subdivision is, 
or may be, a party, or to which an officer or employee of the state or 
political subdivision, as a consequence of his office or employment, 
is or may be a party, that the attorney general or the respective 
attorneys of the various political subdivisions has determined should 
be withheld from public inspection.

	Section 3(a)(3) is applicable where “litigation is pending or reasonably 
anticipated in regard to a specific matter as opposed to a remote possibility among a 
group or classification.”  Open Records Decision Nos. 311 (1982); 130 (1976).  In 
support of your claim that section 3(a)(3) is applicable in this instance, you have 
forwarded to us a copy of a complaint that was filed with the Equal Employment 
Opportunity Commission (EEOC) by the individual whose pre-employment file is at 
issue here.  This complaint finds fault with a number of things that occurred during the 
application process.

	In Open Records Decision No. 266 (1981), we held that a political subdivision 
may successfully invoke section 3(a)(3) where a complaint against it is pending before 
the EEOC.  See also Open Records Decision No. 270 (1981).  The information that you 
have provided indicates, moreover, that the complaint is sufficiently broad as to enable 
us to conclude that all of the materials requested by this individual are related to it.  And 
we finally observe that even if it may be said that this individual's pre-employment file 
constitutes a “personnel file” within the meaning of the Open Records Act, she has no 
“special right of access” to it.  Where section 3(a)(3) is applicable, the governmental 
entity claiming it may withhold the information even from the subject of the personnel 
file.  Open Records Decision No. 288 (1981).

	We therefore conclude that section 3(a)(3) authorizes you to withhold all of the 
information at issue here.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
Bruce Youngblood