Untitled Texas Attorney General Opinion ( 1987 )

February 27. 1987
Mr. Bryan M. Perot Opinion No. JM-640
Executive Officer
Polygraph Examiners Board Re: Whether the Open Meetings Act, art-
P. 0. Box 4087 icle 6252-17, V.T.C.S.. permits the
Austin, Texas 70773 Polygraph Examiners Board to conduct
licensing examination in closed session:
whether the board’s questions and answers
are subject to the Open Records Act,
article 6252-17a. V.T.C.S., and whether
the board can bar examinees from hearing
other exsminees’ questions and answers
Dear Mr. Perot:
You have requested an opinion from this office. Your letter
states:
The Polygraph Examiners Board currently utilizes
a three-phase licensing examination. Phase III is
an oral examination administered by the board
members. This phase of the examination has tradi-
tionally been incorporated into a board meeting
day to allow the board to conduct as much other
business as possible, and thereby maintaining the
most efficient use of the board’s limited
appropriation.
1. Under the Texas Open Meetings Act, is it
proper for the board to excuse those in the
audience, close the meeting and proceed with Phase
III of the Licensing Examination?
2. Are the board’s questions and the examinee’s
answers subject to the Texas Open Records Act?
3. Can other examlnees be barred from hearing
another’s questions and answers?
The board is subject to the Open Meetings Act. article 6252-17,
V.T.C.S. V.T.C.S. art. 4413(29cc), 95(j). Except in those instances
enumerated in section 2 of the act. any “meeting” of an entity subject
to the act must be open to the public. V.T.C.S. art. 6252-17, 52(a).
Section l(a) of the act, however, defines a “meeting” as
Mr. Bryan M. Perot - Page 2 (JM-640)
any deliberation between a‘quorum of members of a
governmental body at which any public business or
public policy over which the governmental body has
supervision or control is discussed or considered,
” or at which any formal action is taken. (Emphasis
added).
“Deliberation” is defined in section l(b) of the act as
a verbal exchange between a quorum of members of
a governmental body attempting to arrive at a
decision on any public business.
In our opinion, a board session held solely for the purpose which you
have described would involve no “deliberation.” and hence no
“meeting,” within these definitions.
As we envision such a session, board members would simply put
questions to prospective licensees and listen to their answers. Given
the presence of the examine=. it would seem inconceivable that the
board members would, at this session, discuss the merits of the
responses. In view of this. we do not believe that such a session
would involve any “exchange” among the board members; on the contrary,
any exchange would be between individual board members and the
examinea. Even if such a question-and-answer session did-involve some
“exchange ,” moreover, no “[attempt] to arrive at any decision on any
public business” would be involved. That attempt would come later,
when, out of the earshot of the examinee. the board members discuss
the examinee’s responses.
We therefore conclude that a board session at which board
members merely ask questions and listen to the answers of prospective
licensees would not be a “meeting” within the Open Meetings Act.
Accordingly, the Open Meetings Act does not require the board to open
this meeting to the public. We do not consider the effect of any
other statute. Sea. e.g., V.T.C.S. art. 6252-13a.
Regarding your second question, the Open Records Act applies only
to tangible items such as documents and other “developed materials.”
V.T.C.S. art. 6252-17a, §2(2) (definition of “public records”). The
act would embrace the board’s questions and an examinee’s answers,
therefore, only to the extent that they are in some such item. Even
to this extent, the questions and answers could generally be withheld.
In Open Records Decision No. 353 (1982). we said that
the authority to conduct an examination ‘neces-
sarily Includes the authority to maintain the
confidentiality of the questions used to test the
knowledge of the person examined. ’ Open Records
Decision No. 118 (1976) ; Attorney General Opinion
B-242 (1974). In addition, it has been held that,
where an examiner’s policy is to reuse examination
p. 2097 .
Mr. Bryan M. Perot - Page 3 (JIG640)
questions and knowledge of a past examination's
questions would compromise the effectiveness of
future examinations, the agency may maintain the
confidentiality of past examination questions.'
Open Records Decision No. 118; Attorney General
Opinion R-483 (1974). Thus, if the questions on
the [city of College Station's] examination for
master electrician are reused, the city may with-
hold them from public disclosure. By the same
reasoning, If the grader's work papers would
reveal the contents of the examination, and the
questions are reused, the city may also withhold
those work papers.
The board, therefore, clearly may withhold examination questions which
have not yet been given. To the extent that it reuses questions,
moreover , the board may deny requests for those questions, as well as
for the answers thereto. Typically, disclosure of the answers to
questions would be tantamount to disclosure of the questions them-
selves.
In answer to your final question, you have suggested no reason
why the board could not prevent an examinee from hearing another
examinee's questions and answers. The right to keep examinees apart,
moreover. would seem to be inherent in the board's right, conferred by
article 4413(29cc), V.T.C.S.. the Polygraph Examiners Act, to
administer a licensing examination. In addition. section 6(a) of
article 4413(29cc) directs the board to "issue regulations consistent
with the provisions of this Act for the administration and enforcement
of this Act. . . ." Thus, the board could deal with this matter in an
administrative regulation.
SUMMARY
The Open Meetings Act would not apply to a
session of the Polygraph Examiners Board held
solely for the purpose of examining prospective
licensees. The Open Records Act authorizes the
board to deny requests for examination questions
and auswers which appear in "public records"
subject to the act. when the questions have not
yet been given or have been administered but may
be reused. The board may prevent an examinee from
hearing another examinee's questions and answers.
Very truly your$ A
I
JIM MATTOX
Attorney General of Texas
p. 2898
Mr. Bryan M. Perot - Page 4 (JM-640)
JACK EIGETOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jon Bible
Assistant Attorney General
p. 2899