|Office of the Attorney General - State of Texas
December 6, 1999
Mr. Leonard W. Peck, Jr.
Dear Mr. Peck:
You ask whether certain information is subject to required public disclosure under the Texas Public Information Act, chapter 552 of the Government Code. Your request was assigned ID# 129909.
The Texas Department of Criminal Justice (the "department") received a request for the "interview documentation form and the other selected applicant interview documentation form" concerning a particular specific department job posting.(1) You assert that the requested information is excepted from disclosure based on section 552.122(b) of the Government Code.
Section 552.122(b) excepts from disclosure "[a] test item developed by a licensing agency or governmental body." 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. Open Records Decision No. 626 at 6. Section 552.122 may apply where release of "test items" might compromise the effectiveness of future examinations. Id. at 4-5; see also Open Records Decision No. 118 (1976).
We have reviewed the interview documentation form at issue. We conclude that the department may withhold from disclosure the question and recommended response for questions 1 through 4. The remaining information on the form does not evaluate the applicant's knowledge or ability in a particular area and must be released.
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).
If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. 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.
Kay H. Hastings
Ref.: ID# 129909
encl. Submitted documents
cc: Mr. Reginald Gilbert
1. We note that the copy of the request for information submitted to this office has two facsimile dates, September 10,1999, and September 22, 1999. A governmental body must seek an open records ruling within ten business days of receiving a request for information. Gov't Code § 552.301. Failure to comply with this deadline results in a presumption that the information is public. Our conclusion here is based on the assumption that the department received the request on September 22, 1999.
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