Untitled Texas Attorney General Opinion ( 1974 )

TEBEA~TORNEYGENEICAL
OF TEXAS
AUSTIN. -rsxAa 78711
December 20. 1974
The Honorable Betty J. Anderson Opinion No. H- 484
Executive Secretary
Texas State Board of Examiners in Re: Applicability of Open
the, Basic Sciences Meetings Act to certain
1012 Sam Houston Bldg., 201 East meetings held by the Texas
14th St. Board of Examiners in the
Austin, Texas 78701 Basic Sciences.
Dear Mrs. Anderson:
Your opinion request requires us to consider the applicability
of the Open Meetings Act, article 6252-17, V. T. C. S., to certain
portions of the meetings held by the Texas State Board of Examiners
in the Basic Sciences. Your questions can be stated as follows:
(1) Must the Board hold open to the public
the portion of a meeting during which it considers
applications for certification and discusses the
academic records of individual applicants and
other pertinent information about them?
(2) Must the Board hold open to the public
the portion of a meeting during which examination
questions are proposed, examined, discussed, and
approved for usage by the Board in an examination
session?
(3) Must the Board hold open to the public
the portion of a meeting during which examinations
are graded and the results recorded?
p. 2196
The Honorable Betty J. Anderson page 2 (H-484)
(4) May the Board hold a closed meeting when
it believes the information to be discussed concerns
a situation which may result in litigation to which
the Board may be a party?
The Open Meetings Act was enacted in order to assure the public
an opportunity to be informed concerning the transaction of public business.
Its provisions are mandatory and are to be construed liberally in order
to effect its purposes. Toyah Ind. Sch. Dist. v. Pecos-Barstow Ind. Sch.
gi.&. , 466 S. W. 2d 377 (Tex. Civ. App. --San Antonio 1971, no writ).
By definition, it would embrace the Texas State Board of Examiners in
the Basic Sciences and would require its meetings to be open to the
public. “Meeting” is defined in section l(a) of the Act-as follows:
‘Meeting’ means 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 super-
vision or control is discussed or considered,
or at which any formal action is taken. (Emphasis
added).
We do not think it was the intent of the Legislature to include
discussions of information deemed confidential by constitutional, or
other law, within the prohibition against privately discussing or
considering “public business or public policy. ” imputing the converse
as the legislative intent would bring the constitutionality of the statute
into question. In order to give effect to those consitutional and statutory
provisions making certain information confidential, we think the Open
Meetings Act must be construed in harmony with them.
We now turn to your first question in which you ask whether the
Board must hold open to the public the portion of its meetings during
which it considers applications for certification and discusses the
academic records of the individual applicants and other pertinent
information submitted in connection with their application. Section 2
p. 2197
The Honorable Betty .J. Anderson page 3 (H-484)
of the Open Meetings Act illustrates certain topics which governmental
bodies are permitted to discuss in closed session, but deliberations about an
applicant’s qtialifi~cations for certification or for a license ‘are not included in
the list. We are aware of no statute or other source of law that generally
makes confidential academic records or other information submitted to
the Board in connection with an application for certification. If the Board
determines, however, that, as a matter of fact, the information with
which it is dealing is such as to give rise to a protectable private interest,
the Open Meetings Act would not require the Board to hold open to the
public the portion of a meeting during which it considers the information.
In your second question you ask whether the Board must hold open
to the public the portion of a meeting during which examination questions
are prepared, discussed, and approved for usage by the Board in an
examination session. The Board is required to examine applicants in
order to determine their knowledge, ability, and skill in the basic sciences
and to conduct the examinations in an entirely fair and impartial manner.
V. T. C.S. art. 459Oc, sec. 6. Since an examination would be rendered
unfair and ineffective if the questions to be asked were made known in
advance, we determined in Attorney General Opinion H-483 (1974) that the
statutory directive to conduct examinations necessariIy carries with it the
authority to maintain the confidentiality of the questions to be asked. See
-
also
- Attorney General Opinion H-242 (1974).
Obviously, the Board’s authority to maintain such confidentiality
would be seriously undermined if the portion of its deliberations at which
future examination questions were discussed and approved were open to
the public. We cannot ascribe to the Legislature such an intent. It is our
opinion, therefore, that discussions by the Board of matters made con-
fidential by implication from the Board’s powers may be discussed at a
meeting not open to the public. But the fact that legally protected con-
fidential information need.mt be discussed in public does not mean that the
entire subject can be dealt with privately. Only the discussion of the con-
fidential information is outside the Open Meetings Act; the topic itself, and
the remainder of the Board’s discussion or consideration of it, are within
the Act and “public business. ”
p. 2198
The Honorable Betty J. Anderson, page 4 -(H-484)
In your third question you ask whether the Board must hold open to the
public the portion of a meeting during which examinations are graded and
the re.sults recorded. Unless some other law makes them confidential,
deliberations of this kind are not expressly excepted from the Act’s coverage
by any of the provisions of section 2. We are unaware of any statute or
other source of law that makes examination results confidential. It is our
opinion that, under the Open Meetings Act,. the Board is required to hold
open to the public that portion of a meeting during which it grades examina-
tions and records the results unlessthe process would compromise the
effectiveness .of future examinations by revealing examination questions, some
or all of which .will be used again. -See Attorney General Opinion H-483 (1974).
>
Finally, you~ask whether the Board may hold a closed meeting when it
believes the information to be discussed conce.rns a:.situation which may
result in litigation to which the Board.may be a.party. ..Section 2(e) of the
Open Meetings Act reads.:as follows: L.
ii, Private consultations between a,.gove,r,n- ‘.
mental body and its attorney are not permitted
except (in those instances in which the body seeks
the attorney’s advice with respect to:pending or
conternp$ated litigation,. settlement offers,, and
matters. where the duty of a public body’s counsel
to his client,: pursuant to the Code of Prof.kssional
a ,+esponsibility of the State Bar of Texas,iiclearly
conflicts with this Act.
Thus, by affirmative provision, the Act authorizes ,thaBoard to close to
the public any portion of its meetings during which.it consults with its
attorney about certain matters, including contemplated litigation. Butt
if its attorney is snot present, the Board is..not expressly permitted to
conduct a closed session even though~pending or prospective litigation
might be the subJect of discussion. Unless such a discussion additionally
involves matters made confidential by law, the Act permits the discussion
of litigation or its prospects at closed meetings only when the Board is
consulting its atto,rney,.
up. .2199
The Honorable Betty J. Anderson, page 5 (J-J-4&4)
SUMMARY
The Texas Open Meetings Law does not require
the revelation of information made confidential by
law. If the Board of Examiners in the Basic Sciences
determines, as a matter of fact, that information in
an applicant’s file is private and protected from dis-
closure by constitutional, statutory, or court made
law, the Board may close that portion of the meeting
during which it discussess and consjdere the inform-
ation. The Board of Examiners in the Basic Sciences
also may close portions of meetings at which it dis-
cusses examination questions if to reveal such ques-
‘.
tions would compromise future examinakons. However,
unless legally confidential material w,ould be thereby
revealed, discussions undertaken about prospective
litigation when its attorney is not present cannot be
closed to the public by the Board.
Very truly yours,
APPROVED:
DAVID M. KENDALL, ,First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2200