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John Cornyn

June 9, 1999

Mr. Kevin McCalla
Director, General Law Division
Texas Natural Resource Conservation Commission
P.O. Box 13087
Austin, Texas 78711-3087


Dear Mr. McCalla:

You have asked whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 124986.

The Texas Natural Resource Conservation Commission (the "TNRCC") received a request for a copy of the questions given applicants for a specific position, the applicant responses to those questions, and the ratings assigned to each response. You assert that some of the interview questions and model answers, and actual applicant responses, to the questions are test items that are excepted from disclosure under section 552. 122 of the Government Code. You state that the questions at issue are recurring questions and that the questions and model answers will be used for future interviews. You cite to Open Records Decision No. 625 (1994) for your argument.

Section 552.122 excepts from disclosure "[a] test item developed by an educational institution that is funded wholly or in part by state revenue." In Open Records Decision No. 537 (1990), this office acknowledged that, prior to the enactment of section 552.122, test items were viewed as confidential under section 552.101 of the Government Code. Open Records Decision No. 626 at 5 (1994). We stated that a key factor in decisions made prior to the enactment of section 552.122 was whether or not the examination questions at issue were used again in future examinations. See, e.g. Open Records Decision No. 118 (1976). In fact, when a governmental body had a policy of reusing questions, we had previously determined that release of such questions could compromise the effectiveness of future interviews or examinations. Id.

However, when section 552.122 was enacted, this office had to determine what the term "test item" meant. In Open Records Decision No. 626 (1994), we 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 it does not encompass evaluations of an employee's overall job performance or suitability. Whether information falls within the section 552.122 test item exception must be determined on a case-by-case basis. Open Records Decision No. 626 at 6 (1994). We have reviewed the questions, model answers, and interviewer responses at issue, none of which appears to be a test item under section 552.122. Thus, TNRCC may not withhold the records at issue from disclosure.

We are resolving this matter with an informal letter ruling rather than with a published open records decision. This ruling is limited to the particular records at issue under the facts presented to us in this request and should not be relied upon as a previous determination regarding any other records. If you have questions about this ruling, please contact our office.


Ruth H. Soucy
Assistant Attorney General
Open Records Division


Ref: ID# 124986

Encl. Submitted documents

cc: Mr. Scott Lawless
5817 Highland Pass
Austin, Texas 78731
(w/o enclosures)


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