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Office of the Attorney General - State of Texas John Cornyn |
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April 17, 2001 Mr. James L. Hall
OR2001-1513 Dear Mr. Hall: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 146160. The Texas Department of Criminal Justice (the "department") received a request for the documentation relating to employment interviews for two positions on specified dates. You claim that seven of the responsive interview questions and the corresponding answers are excepted from disclosure under section 552.122 of the Government Code. You also assert that the interview documentation contains social security numbers of employees of the department that are excepted from disclosure under section 552.117. We have considered the exceptions you raise and have reviewed the information you submitted. Section 552.122 of the Government Code excepts from required public disclosure "a test item developed by a . . . governmental body[.]" Gov't Code § 552.122(b). 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. Id. at 6. The question of whether specific information falls within the scope of section 552.122(b) must be determined on a case-by-case basis. Id. 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). Section 552.122 also protects the answers to test questions when the answers might reveal the questions themselves. See Attorney General Opinion JM-640 at 3 (1987); Open Records Decision No. 626 at 8 (1994). The department seeks to withhold, as "test items," three questions and answers pertaining to one position and four questions and answers concerning the other. You inform us that at the department, "most vacant employee positions are filled through a selection process that includes structured interviews in which the same specific questions are asked of all the applicants who get to the interview stage." You state that "the questions are intended to display the technical expertise of the applicant." You explain that the same questions and answers are used repeatedly. You assert that public disclosure of these questions and answers would increase the cost and undermine the fairness and effectiveness of the selection process. Based on these representations and our review of the interview questions and answers that the department seeks to withhold, we conclude that they all qualify as test items under section 552.122 of the Government Code. Therefore, the department may withhold all seven questions and the corresponding answers under section 552.122. You also raise section 552.117 of the Government Code, which excepts from disclosure the home address, home telephone number, or social security number of an employee of the department, as well as any information that reveals whether an employee of the department has family members, regardless of whether the employee complies with section 552.024. See Gov't Code § 552.117(3). In releasing responsive information, the department must withhold any information relating to an employee of the department that is excepted from disclosure under section 552.117(3). We note, however, that the only social security number contained in the submitted documents is that of the requestor, who has a special right of access to her own social security number under section 552.023 of the Government Code. See Gov't Code § 552.023(a) (providing that person or person's authorized representative has special right of access, beyond that of general public, to information held by governmental body that relates to that person and is protected from disclosure by laws intended to protect that person's privacy interests). The department may not withhold the requestor's social security number under section 552.117(3). 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). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. 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, James W. Morris, III
JWM/rr Ref: ID# 146160 Encl: Submitted documents cc: Ms. Faith Stookesberry
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |