Office of the ATTORNEY GENERAL
December 5, 2002
Sylvia F Hardman
Dear Ms. Hardman:
You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 173184.
The Texas Rehabilitation Commission (the "commission") received a request for information relating to a specific job opening, including the interview questions and the requestor's answers. You claim that some of the requested information is excepted from disclosure under section 552.122 of the Government Code. We presume you have released any other responsive information to the requestor. 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). 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); Open Records Decision No. 626 at 8 (1994). Based on your arguments and our review of the submitted information, we agree that most of the interview questions qualify as test items for purposes of section 552.122. Furthermore, we find that the answers to these questions could reveal the questions themselves and may likewise be withheld under section 552.122. However, we conclude that questions 2, 4, 8, and 9 do not test an individual's or group's knowledge or ability in a particular area. Therefore, the commission may not withhold questions 2, 4, 8, and 9 and their corresponding answers under section 552.122(b).
You have asked that we issue to the commission a previous determination allowing the commission to withhold interview questions and answers without requesting a ruling. As noted above, 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). For this reason, we decline to issue a previous determination that would grant the commission the authority to withhold categorically all interview questions and answers.
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 Hadassah Schloss at the Texas Building and Procurement 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. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. 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.
Jennifer E. Berry
c: Ms. Ester Duffie