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Office of the Attorney General - State of Texas John Cornyn |
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May 17, 2002 Mr. Jesús Toscano, Jr.
OR2002-2642 Dear Mr. Toscano: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 163098. The City of Dallas (the "city") received fifty written requests for various categories of information concerning the position of Lieutenant of Police. You state that the city has requested clarification on twenty of those requests and that the city does not possess any records responsive to eight of the requests.(1) You further inform us that the city will release all of the remaining requested information except for documents responsive to five of the requests. You contend that information responsive to one of those requests is excepted from required public disclosure pursuant to section 552.122 of the Government Code.(2) With regard to the information responsive to the four remaining requests, you have requested a decision from this office pursuant to section 552.305 of the Government Code, which allows governmental bodies to rely on third parties having a privacy or property interest in the information to submit their own arguments as to why the requested information should be withheld from the public. This office also received comments from the requestor. See Gov't Code § 552.304. In accordance with section 552.305(d), the city was required to notify the interested third party, Booth Research Group, Inc. ("Booth") of the records request and of their right to submit arguments to this office as to why their "Job Analysis Results" should not be released to the public. See Gov't Code § 552.305(d); Open Records Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits governmental body to rely on interested third party to raise and explain applicability of exception to disclosure under Public Information Act in certain circumstances). An interested third party is allowed ten business days after the date of its receipt of the governmental body's notice under section 552.305(d) to submit its reasons, if any, as to why information relating to that party should be withheld from public disclosure. See Gov't Code § 552.305(d)(2)(B). This office did not receive a response from Booth indicating that it wished to have its records withheld from the public. This office therefore has no basis for concluding that the "Job Analysis Results" is excepted from disclosure. Consequently, these materials must be released in their entirety, with the following caveat. We note that the "Job Analysis Results" is copyright protected. The copyright law gives the copyright holder the exclusive right to reproduce his work, subject to another person's right to make fair use of it. 17 U.S.C. §§ 106, 107. A governmental body must allow inspection of copyrighted materials where no exception to required public disclosure otherwise applies. Attorney General Opinion JM-672 at 2-3 (1987). Also, the requestor may make copies of copyrighted materials unassisted by the city. Attorney General Opinion MW-307 (1981). "Of course, one so doing assumes the risk of a copyright infringement suit." Id. at 2. Consequently, the city must allow the requestor to view the copyrighted information and also allow him to reproduce the material without the city's assistance. It will be the requestor's responsibility to adhere to the federal copyright law. The city seeks to withhold the materials you submitted to this office as Exhibit D pursuant to section 552.122 of the Government Code, which protects a "test item developed by a . . . governmental body." Section 552.122(b) is applicable only where the test item constitutes a "standard means by which an individual's or group's knowledge or ability in a particular area is evaluated." This exception does not apply to evaluations of an employee's overall job performance or suitability. See id. at 6. Whether information falls within the section 552.122(b) exception must be determined on a case-by-case basis. See id. After reviewing the contents of Exhibit D, we agree that the multiple choice questions you submitted to this office constitute "test items" for purposes of section 552.122(b) and thus may be withheld from the public. The remaining portions of Exhibit D are not test items, but rather constitute a means by which the city may evaluate applicants' suitability. Consequently, the remaining portions of Exhibit D must be released to the requestor. 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 Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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, V.G. Schimmel
c: Mr. Jay Cooper
Footnotes 1. The Public Information Act does not require a governmental body to obtain information not in its possession or to prepare new information in response to a requestor. Open Records Decision No. 445 (1986). 2. In reaching our conclusion here, we assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision No. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |