 Office of the ATTORNEY GENERAL GREG ABBOTT | |
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March 17, 2003 Ms. Janice Mullenix
OR2003-1801 Dear Ms. Mullenix: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 177947. The Texas Department of Transportation (the "department") received two requests for the questions, preferred answers to those questions, and the requestors' answers to the questions pertaining to a specified job posting. One of the requestors also seeks copies of the answers given for the top three applicants interviewed, as well as the score sheets for all interviewees. You claim that portions of the requested information are excepted from disclosure pursuant to section 552.122 of the Government Code.(1) We have considered the exception you claim and have reviewed the submitted representative sample documents.(2) We note at the outset that the department did not submit any responsive information to us pertaining to the requested score sheets for all interviewees. We, therefore, presume that the department has already provided the requestor with this information to the extent that it exists. If not, the department must do so at this time. See Gov't Code §§ 552.006, .301, .302; see also Open Records Decision No. 664 (2000) (noting that if governmental body concludes that no exceptions apply to requested information, it must release information as soon as possible under circumstances). Section 552.122(b) excepts from disclosure test items developed by a licensing agency or governmental body. See 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. Whether information falls within the section 552.122 exception must be determined on a case-by-case basis. See 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. See id. at 4-5; see also Open Records Decision No. 118 (1976). Additionally, when answers to test questions might reveal the substance of the questions themselves, the answers may be withheld from disclosure under section 552.122(b). See Open Records Decision No. 626 at 8 (1994). Based on our review of your arguments and the information at issue, we agree that questions two, seven, and parts B and C of ten constitute "test items" as contemplated by section 552.122(b). Accordingly, we conclude that the department may withhold these questions pursuant to section 552.122(b). We also agree that the department may withhold the preferred and actual responses associated with these questions pursuant to section 552.122(b), as they tend to reveal the substance of each of these test questions. However, since questions five and part A of ten do not constitute "test items" under section 552.122(b), the department may not withhold those questions or their respective preferred and actual answers under section 552.122(b) of the Government Code. Consequently, we conclude that the department must release this particular information to both requestors. In summary, we presume that the department has already provided one of the requestors with the requested score sheets for all interviewees to the extent that they exist. If not, the department must do so at this time. The department may withhold questions two, seven, and parts B and C of ten, as well as the preferred and actual answers associated with those questions, pursuant to section 552.122(b) of the Government Code. The department must release the remaining submitted information to both requestors. 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 Dep't of Pub. 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, Ronald J. Bounds
c: Mr. David Bennett
Mr. William Mulhollan
Footnotes 1. You also request a ruling from us on "redacting confidential information from job applications." However, we note that neither of the requestors seeks information concerning job applications and such information has not been submitted to us for our review. Accordingly, we do not address this particular request of the department in this ruling. 2. 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 Nos. 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 |