March 23, 2012

Ms. Charlotte A. Towe

Assistant General Counsel

Texas Department of Criminal Justice

Office of the General Counsel

P.O. Box 4004

Huntsville, Texas 77342-4004

OR2012-04294

Dear Ms. Towe:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 448511.

The Texas Department of Criminal Justice (the "department") received a request for the answers to questions asked in the requestor's interview for a specified job opening. You state some of the requested information has been or will be released to the requestor. You claim the submitted information is excepted from disclosure pursuant to section 552.122 of the Government Code. We have considered the exception you claim and reviewed the submitted information.

Initially, we note the submitted interview questions are not responsive to the instant request, as the requestor only asks for the answers. The department need not release non-responsive information in response to this request, and this ruling will not address that information.

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 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. Open Records Decision No. 626 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); ORD 626 at 8.

You state the submitted interview questions are "intended to display the technical expertise of the applicant" and the department prefers to use similar questions from one position selection to the next. Further, you argue release of the information at issue could compromise future interviews. Having considered your arguments and reviewed the submitted information, we find the release of the recommended responses to some of the submitted interview questions would tend to reveal the questions themselves, which we conclude are test items for purposes of section 552.122(b) of the Government Code. Therefore, the department may withhold the recommended responses we have marked under section 552.122(b) of the Government Code. We find, however, that the remaining answers correspond to questions which only evaluate an applicant's individual abilities, personal opinions, and subjective ability to respond to particular situations, and do not test any specific knowledge of an applicant. Accordingly, we determine the remaining answers do not consist of test items under section 552.122(b) and may not be withheld on that basis. As you have not claimed any other exceptions to disclosure, this information must be released.

This letter ruling is limited to the particular information 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 information or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For more information concerning those rights and responsibilities, please visit our website at http://www.oag.state.tx.us/open/index_orl.php, or call the Office of the Attorney General's Open Government Hotline, toll free, at (877) 673-6839. Questions concerning the allowable charges for providing public information under the Act must be directed to the Cost Rules Administrator of the Office of the Attorney General, toll free at (888) 672-6787.

Sincerely,

Cynthia G. Tynan

Assistant Attorney General

Open Records Division

CGT/em

Ref: ID# 448511

Enc. Submitted documents

c: Requestor

(w/o enclosures)

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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