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December 22, 2000

Ms. Janice Mullenix
Associate General Counsel
Texas Department of Transportation
125 East 11th
Austin, Texas 78701-2483

OR2000-4833

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# 142568.

The Texas Department of Transportation (the "department") received a written request for certain records pertaining to "the Office Technician II position in Beeville." You state that some responsive information will be released to the requestor. You contend, however, that certain interview questions and "KSA" forms are excepted from required public disclosure under section 552.122(b) of the Government Code.

We note at the outset that although you state that the department has not officially released any of the documents at issue other than those released in response to the open records request, some of the requested documents were "inadvertently" faxed to a department employee not authorized to obtain the information. In Open Records Decision No. 376 (1973), this office addressed a governmental body's ability to raise exceptions to disclosure for information that had previously been released to the public in an unauthorized manner and concluded that:

[a]lthough this office has held that a governmental body that voluntarily furnishes information to a newspaper may not later claim that that information may be withheld from others, Open Records Decision No. 162 (1977), it has never held that information which is not voluntarily released by a governmental body, but which nevertheless finds its way into the hands of a member of the general public, is henceforth automatically available to everyone. In our opinion, the Open Records Act does not preclude a governmental body from invoking one or more of the act's exceptions to protect from further public disclosure information which has been released on a limited basis through no official action, and against the wishes and policy of, the governmental body.

Open Records Decision No. 376 at 2 (1983) (emphasis in original). You inform this office that the employee who received the documents in error returned them to the department. We therefore conclude that the prior unauthorized release of the documents you have designated as Exhibit C does not affect the department's ability to invoke the protection of section 552.122(b) for those documents now. We therefore will consider your section 552.122(b) claims for the documents in both Exhibits B and C.

Section 552.122(b) of the Government Code protects a "test item developed by a . . . governmental body." Section 552.122(b) is applicable only where the test item constitutes a "standard means by which an individual's or group's knowledge or ability in a particular area is evaluated." Additionally, when answers to test questions might reveal the questions themselves, the answers may be withheld under section 552.122(b). See Open Records Decision No. 626 at 8 (1994). This exception does not apply to evaluations of an employee's overall job performance or suitability. Open Records Decision No. 626 at 6 (1994). Whether information falls within the section 552.122(b) exception must be determined on a case-by-case basis. Id.

After reviewing the information at issue, we agree that most of the interview questions that you seek to withhold constitute a standard means by which an individual's or group's knowledge or ability in a particular area is evaluated and thus may be withheld pursuant to section 552.122(b). We have placed red flags on the documents the department may withhold. However, the department must release the remaining materials, including the KSA forms, to the requestor.

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 Hadassah Schloss at 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.

Sincerely,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/RWP/seg

Ref: ID# 142568

Encl. Submitted documents

cc: Ms. Rosalinda Orozco
HCR 8 Box 924
Beeville, Texas 78102-9625
(w/o enclosures)


 

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