|Office of the Attorney General - State of Texas
October 27, 2000
Ms. Janice Mullenix
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#140660.
The Texas Department of Transportation (the "department") received a request for information regarding job vacancy notice 0-52-M230-382. You state that a portion of the information will be released to the requestor. You assert, however, that a portion of the requested information, the KSA applicant criteria and two interview questions, with the actual and preferred answers, are excepted from disclosure under section 552.122 of the Government Code. We have considered the exception you claim and reviewed the submitted information.
Section 552.122(b) excepts from disclosure test items 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 (1994). 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).
You state that the interview questions involve standards by which an individual's stated knowledge or ability in a particular area is evaluated. You explain that the questions relate to the stated knowledge, skills, and abilities required for the position and do not focus on qualifications or experience unique to a particular applicant. You state that the department anticipates using these interview questions for future job vacancies of this kind and that the preferred answers are an integral part of the questions themselves and reveal the nature of the questions asked. Similarly, you argue that the actual answers reveal the nature of the questions posed. Based on your arguments and our review of the submitted test questions and answers, we agree that the questions and the preferred answers represent test items developed by a governmental body that are excepted from disclosure under section 552.122(b). Therefore, you may withhold the two questions submitted along with the preferred answers to those questions under section 552.122 as information which tests the applicant's knowledge or ability in a particular area. You have not submitted the actual answers, so we are unable to determine if they would reveal the questions themselves and have no basis to find them excepted from required disclosure; therefore, we have no choice but to find that the department may not withhold the actual answers.
You also seek to withhold the KSA scoring criteria. You make the following statements and arguments regarding this information:
Just as the questions and answers are used to "grade" the applicant's interview, the department uses the KSA criteria to grade each KSA. An applicant who does not met the KSA criteria is screened out before reaching the interview stage. We do not ask to withhold the KSAs that are listed on the Job Vacancy Notice, but rather we ask to withhold the relevant subdivisions of those KSAs and the numerical grading criteria for each KSA. To allow the KSA grading criteria to be released would give a knowledgeable applicant a road map to ensuring an interview, to the disadvantage of others who may be more qualified, but are submitting applications in good faith without advance knowledge of the scoring criteria. Allowing preferred access to state jobs would constitute a misuse of public money and would defeat the department's mandate to hire the best-qualified applicant. Therefore, the KSA scoring sheet should be withheld.
After reviewing the submitted information, we do not agree that the KSA scoring criteria qualify as "test items" for the purposes of section 552.122(b). Therefore, the KSA scoring criteria may not be withheld under section 552.122(b).
In summary, the submitted interview questions, along with the preferred answers, are excepted from disclosure under section 552.122(b) of the Government Code and may be withheld. The department may not withhold the actual answers. The department must release the KSA scoring sheets.
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).
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 the General Services 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. 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.
Patricia Michels Anderson
Encl. Submitted documents
cc: Ms. Kay Walden
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US