Untitled Texas Attorney General Opinion ( 1974 )

THE ATIWRNEY GICSERAL
OF TESAS
Au-.TE%AIB 78711
February 26, 1974
The Honorable Walde.en D. WilEon, Opinion No. H- 242
Executive Secretary
Board of Vocational Nur6e Examiner6 Re: Applicability of Article 6252-174
406 Sam Hou6ton State Office Bldg. V. T. C. S., to the record6 of
Austin. Texas 78701 licemees maintained by the Board
of Vocational Nur6e Examiner6
Dear MB. Wilron:
You have requerted our opinion in answer to a 6erics of quertionr con-
cerning the applicability of the Open Record6 Act, Article 6252-17r,
Vernon’6 Texa6 civil statuter, to V6riOU6 liC6nBing record6 of your
Board:
(1) What item6 on the licen6ee ma6ter file are
con6idered confidential?
(2) Are namer, addreBre6, birthdates, licen6e
number6 and eocial recurity number6 of particular
licensees con6idered confidential?
(3) May the Board refuse to grant a request
becau6e of it6 magnitude?
(4) What are the obligation6 of the Board in
re6pondfng to requert6 from other 6tate and
federal agencie6 requesting major information
on the master file to be used for research and
6tUdy for MriOUs nUr6ing prOjeCtB? If the
information is di6clo6abie, how should costs
be determined for reproduction of this material?
(5) Doe6 Section 6(a)(9) make the contents of the
licensing examination public information, or are
the contents excepted from disclosure under
Section 3?
p. 1121
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The Honorable Waldeen D. Wilron, page 2 (H-242)
The Board of Vocational Nurre Exarntnerr i6 created and governed
by Article 4528~. V. T. C. S. We find nothing in that rtatute which would
make the information unavailable to a member ofe public.
Section 3(a) of the @en Record6 Act provide6:
“(a) All information collected, arsembled, or
maintained by governmental bodie6 purruant to law
or ordinance or in connection with the tranraction
of official businerr ir public information and avail-
able to the public during normal bUBine66 hour6 of
any governmental body, with the following excep-
tions only:” ,
Since “governmental body” is defined by Sec. 2(l)(A) of the Act to
include any board within the executive branch of the rtate government.
in our opinion the Board of Vocational Nurse Examiner6 ir 6ubject to
the mandate of Sec. 3(a) of the Act.
The maeter file, referred to in your firrt quertion.ir comprired
of the initial file and the annual renewal card. The former contains
the licensee’6 name, addre66, birth date, 6ocial recurity number,
age, 6ex. marital statur. license number, date of graduation from
nursing school, date of rtate board examination, examination grades,
date of license, whether license i66Ued by waiver or by examination,
the school code and whether the license is current or delinquent. The
renewal card seeks to bring much of thi6 information up to date and,
additionally, ask6 about employment status and area, general edu-
cation, attendance at and degrees from college, availability of in
service training, and a6k6 for a yes or no answer a6 to whether the
licensee ha6 been arrested for a felony or mfrdemeanor, other
than a minor traffic violation, since la6t September 1.
None of the information contained on these card6 appear6 to be
excepted from disclo6ure by any exception contained in Sec. 3(a)
of the Act. It is our opinion, therefore. that the information contained
in the licensee master file should be made public upon requert. Par-
ticularly, we do not believe that any of it, if di6closed, would violate
a constitutionally protected right of privacy. See Attorney General
Opinion H-90 (1973).
p. 1122
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The Honorable Waldeen D. Wilron. page 3 (H-242)
Your 6econd quertion refer6 to information in the ma6ter file
and, in our opinion, the 6ame answer rhould apply.
Your third quertion ark6 whether the magnitude of a requert affect6
the irrue of dirclo6ability under the Act.
Our answer i6 “No”. Generally rpeaking, neither the rize of the
reque6t nor the per6on mating it affect6 consideration of the ba6ic
issue of di6ClOtability a6 far a6 the Board of Vocational Nurse
Examiners ir concerned.
We appreciate the fact that practical problem6 of compliance
may from time to time confront governmental bodier ruch a6
yours. However, the Act doe6 not authorize thi6 office to con-
sider those difficultie6 in deciding the basic que6tion of whether
information ir public. A request mu6t include rufficient detail
to make identifiable the exact type of information reque6ted. The
governmental body may ask for clarification if it cannot rea6on-
ably understand a particular request. But when the particular
type of information reque6ted is identifiable, the only analysis
permi66ible under the Act is whether that type of information is
public.
Apprehension ha6 been expre66ed by Borne about relea6ing
information to persons with purely commercial motive6,or motive6
that are otherwise characterized a6 euspect. The Act doe6 not permit
analysis of the requestor’ motive in determining the hric question
of disclosability. Section 5(b) specifically provide6 that “Neither
the custodian nor hi6 agent who control6 the u6e of public record6
&all make any inquiry of any person who applies for fn6pection
or copying of public record6 beyond the purpose of e6tabliBhing
proper identification and the public record6 being requested.” See
Open Records Decision No. 8 (1973).
Question 4 raises separate consideration for state and federal
agencies. Our office ha6 previously recognized the need to maintain
an unrestricted flow of information between state agencies. See
Attorney General Opinion M-713 (1970). The Open Records Act does
p. 1123
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The Honorable Waldeen D. Wilson. page 4 (H-242)
not undercut that policy. Information which ir not required to be
di6ClOBed to the public under the Act can rtill be tranrferred bet-
ween ltate agencier without violating it6 confidentiality or der-
troying it6 confidential character.
hi regard t0 COBt6 Of providing information t0 Other lg e nCie6.
the open Record6 Act provide6 for a determination of COBt6 by con-
sultation between the agency from whom the information ir requerted
and the State Board of Control, aa provided by Section6 9(a) and 9(b)
of the Act. Such co6t6 might al60 be governed by the Interagency
Cooperation Act, Art. 4413(32). V. T. C. S. While cooperation with
federal agencier ir desirable even where information i6 being re-
que6ted that ir not required to be 6upplied by the State of Texae
under federal law, the policy 6upporting interchange of information
among rtate agencies i6 ab6ent when a federal agency reque6t6
information not required by law to be divulged to it. E6peCially
where information, non-di6closable to the public, i6 involved,
the 6tate cannot effectively a66ure that federal agencier, which
function under a different “Open Record6 Law”, (6ee 5 U.S. C., Sec. 552)
will maintain state record6 with the 6ame eye toward6 conffdentiality
that &ate agencies would be bound to do under the law6 of Texas. This
lack of control by the, 6tate doe6 not preclude the right of federal
agenciecl to have access to public information of the State. It doe6
preclude them from aCce66 to non-dirclorable information, unless
Some Other hW require6 it6 di6ClOBUre.
With regard to cost6 of reproducing information, in the absence
of a particular rtatute or federal requirement. a federal agency
6hould be treated, under the guideline6 of Section 9, a6 any “person”
requesting information.
Your fifth question aeks whether the content6 of the licensing
examination is public information.
Section 6(a)(9) of the Open Record6 Act specifically make6 public
information “instructions as to the scope and contents of all . . .
examination6. . . . ”
p. 1124
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L The Honorable Waldeen D. Wilson. page 5 (H-242)
We believe that Section 6(a)(9) contemplate6 publicity on what
the examination ir to be about when one i6 required by 6tate law to
pa66 ruch an examination a6 a condition to receiving rtate certifi-
cation in the area examined; it doe6 not contemplate publicizing
the quertionr on the examination itrelf. Obviourly, ruch a policy
wa6 not intended under the Act, otherwire prior acce66 to exam-
ination que6tionr would render all rtate examination6 uBele66.
We cannot arcribe to the Legirlature an intent to achieve an ab6urd
re6ult.
Your agency ir required to adminieter examination6 to qualified
applicant6 for licenrure by Section 4(d) of Article 4528~. V. T. C. S.
We believe that the rtatutory authority to conduct examinationr
nece66arily include6 the authority to maintain the confidentiality of
the 6pecific questions with which the applicant’6 knowledge i6 to be
tested. Thus, the examination u6ed by the Board ir excepted from
disclo6ure under the Open Record6 Act under Section 3(a)(l) a6
it i6 information autborired to be held confidential by rtatutory law.
SUMMARY
File6 of a ficenlriag agency containing routine
information concerning the 6tatu6 of a licenree,
including whether or not hi6 license is current,
are disclorable under the Open Record6 Act. The
identity of the requeetor and the magnitude of the
request do not affect disclosability of public inform-
ation.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1125