November 29, 2012

Mr. Warren M. S. Ernst

Chief of the General Counsel Division

City of Dallas

1500 Marilla Street, Room 7BN

Dallas, Texas 75201

OR2012-19213

Dear Mr. Ernst:

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# 472235.

The City of Dallas (the "city") received two requests for the training material used for the assessors during the 2007 Fire Prevention Captain and Lieutenant Assessment and the job description/specification for Fire Prevention Captain and Lieutenant. You state you will release some information to the requestors. You claim the submitted information is excepted from disclosure under section 552.122 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information. ⁽¹⁾

Section 552.122(b) 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. Whether information falls within the scope of section 552.122 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 inform us the submitted information consists of test exercises that the city utilizes to evaluate the qualifications of candidates for promotion in the Dallas Fire Department. You explain the test exercises "are re-used verbatim, or with only minor changes, on an on-going basis to provide for consistent evaluations of candidates[.]" You argue release of the written responses to the test exercises will "reveal the subject matter of the test questions[,]" thereby undermining the city's ability to assess candidates in a consistent manner, and compromising the effectiveness of future candidate assessments. You explain some of the information at issue consists of the Behaviorally Anchored Rating Scales ("BARS") for these test exercises, and are analogous to a teacher's manual for the assessors because they "reveal unique information about the test questions, suggested answers, and criteria for grading the test questions." You further inform us "BARS identify specific behaviors and answers to test questions that would be rated high or low" by the assessors of the candidate interviews, and the BARS function "like a descriptive answer key" to the test exercises. Having reviewed the submitted information and your arguments, we find the test exercises given for the assessment are "test items" for purposes of section 552.122(b), and the corresponding written responses and BARS reveal the test exercises themselves. Therefore, we conclude the city may withhold the submitted information under section 552.122(b) of the Government Code.

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,

Nneka Kanu

Assistant Attorney General

Open Records Division

NK/bhf

Ref: ID# 472235

Enc. Submitted documents

c: 2 Requestors

(w/o enclosures)

Footnotes

1. We assume 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 those records contain substantially different types of information than that submitted to this office.

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