Untitled Texas Attorney General Opinion

December 20, 1974
The Honorable Betty J. Anderson Opinion No. H- 483
Executive Secretary
Texas State Board of Examiners Re: Applicability of Open
in the Basic Sciences Records Act to information
1012 Sam Houston State Office Bldg. and files of Board of Examiners
Austin, Texas 78701 in the Basic Sciences. V. T;C. S.
art; 6252-17a
Dear Mrs. Anderson:
Your Board has requested our opinion on a number of questions concerning
the applicability of the Open Records, articie 6252-17a, Vernon’s Texas Civil
Statutes, to various records and information held by your Board. Your
questions can be stated as follows:
(1) Are examination questions prepared by
the Board public information, either before or
after the examination is administered?
(2) Are the examination grades, examination
papers, and personal information submitted by
applicants, such as transciprte and similar
information, public information?
(3) Are the grades made by the students of
a specific school of the healing arts public
information?
(4) If the information in an applicant’s file
is public, may the Board decline to disclose it
until after completion of its investigation and
evaluation?
(5) If the Board has reason to believe that
ita action may result in litigation, may it decline
to diacloae information concerning tbat case?
p: 2188
. .
The Honorable Betty J. Anderson, page 2 (H-483)
The Board is a “governmental body” as defined by section 2(1)(A)
of the Open Records Act and is generally subject to the mandote of
section 3(a) of the Act, which provides:
All information collected, assembled, or
maintained by governmental bodies pursuant
to law or ordinance or in connection with the
transaction of official business is public in-
formation and available to the public during
normal business hours of any governmental
body, with the following exceptions only. . .
Your first question concerns the examination questions prepared
by the Board. The purpose of the Board is to examine applicants to
determine their knowledge, ability, and skill in the basic sciences,
and to issue certificates of proficiency in the basic sciences to those
persons who meet the statutory standards and requirements as to
citizenship, age, character and academic achievement. V. T. C. S.
art. 4590~. sets. 6 and 7.
It is a well established principle that a statutory grant of an express
Tawer carries with it by necessary implication every other power
necessary for the execution of that power. Brow> v. Clark, 116 S. W. 360(Tex. 1309); Terre11 Y. Sparks, 135 S. W. 519 (Tex. 1911); Imperial Irr.
CO. v. Jayne, 138 S.W. 575 (Tex. 1911); 53 Tex. Jur.Zd. Statutes $ 141
(1964); 2A Sutherland, Statutory Construction, $55.04 (4th Ed. 1973).
Section 3(a)(l) of the Open Records Act exempts from disclosure
as public information “information deemed confidential by law, either
constitutional, statutory, or by judicial decision. I’ Although there is
no express provision in article 4590~ making the Board’s examination
questions conftdential either before or after they have been administered,
we believe that the statutory authority to conduct examinations necessarily
implies the authority to maintain the confidentiality of the specific questions
with which the applicant’s knowledge of a subject is to be tested.
Section b(a)(9) of the Open Records Act makes public “instruction as
to the scope and contents of all . . . examinations.” We do not believe
that it contemplates publicizing the question in the examination itself.
Otherwise the examination would be rendered useless. We cannot ascribe
to the Legtskture an intent to achieve an absurd result. Attorney General
Opinion H-242 (1974).
p. 2189
The Honorable Betty J. Anderson, page 3 (H-4831
Your first question also asks whether the Open Records Act makes
your examination questions public information after they have been used.
The examination process may vary considerably from agency to
agency and from time to time within an agency, and thus it is not possible
to answer this question definitively.
The Board’s statutory duty and a~urscrity is to conduct an examination
at least every six months. We believe that authority includes the power
not cnly LO select or develop questions, but also to decide whether the
questions used on one examination will be csed on another. Where the
Board’s policy is to reuse examination questions to such an extent that
knowledge of a past examination’s questions would compromise the
effectiveness of future examinations, the Board may, within reason,
maintain the confidentiality of past examinations. We do not believe that
the Open Records Act was intended to require an examining agency to
destroy its testing devices simply because they have been used once.
However, once the possibility of compromising future examinations no
longer exists, past examinations can no longer be considered confidential.
Section 14(a) of the Open Records Act provides:
This Act does not prohibit any governmental
body from voluntarily making part or all of its
records available to the public, unless expressly
prohibited by law; provided that such records
shall then be available to any person.
We do not believe administration of the examination to applicants
for a license would involve that section. Normally, examinations are
not administered to the “public” To qualify to take the examination
in the Basic Sciences one has to meet other rigorous requirements.
IU~ statute requires that “[t]he examinations shall be conducted in
writing, and in such manner as to be entirely fair and impartial to all
individuals and to every school or system or practice,” and further pro-
vides that “it is the intent of this Act that the examinations given shall
be similar to the examinations given in the subjects named in this Act
at the colleges or universities named above. I’ V.T.C.S. art. 4590, sec. 6.
p. 2190
.
The Honorable Betty J. Anderson, page 4 (H-432:
You state that Board policy is to hold copies of examinations
which have been administered for one year, after which time they
may be released to professional schools, certain hospitals, and
certain other institutions, but not to individuals.
Insofar as the Board adopts a policy of iimited dts:ribution Of its
examinations in furtherance of these statutory objectives, we do not
believe that such distribution would nec*rsearily require pubiic dis-
closure under section 14(a) of the Open Records Act.
We have not been requested to dzclds, ur.der sec5un ‘; c:’ rhe Act,
that a particular document is or is not pubiic information. ii we
are asked to determine that past exezmination questions sh.>uld be
held confidential, of necessity, we will require proof that such
confidentiality is essential to the effective administration of the Board’s
powers and duties.
Your second question asks whether examination grades, examination
papers and personal information submitted by applicants are public
information under the Open Records Act. You advise us :hat it is a long-
standing policy of the Board not to disclose such information. based on
consideration for the individual’s right of privacy.
The purpose of the Open Records Act is to provide people with
“information regarding the affairs of government. “ V. T. C.S. art 62!2-17a,
3ec. 1. The purpose of the Basic Sciences Act is to protect the public
health by insuring that persons who wish to practice the healing arts are
quaMied to do so. V. T.C.S. art. 4590~. sacs. 1 and 6. The problem is
whether their combined effect is to make it a condition of practicing the
healing arts that the applicant reveal personal information not only to
members of a qualified board for their professional evaiuation of his
qualifications, but also to any member of the public who chooses to
seek it for any reason.
There is no doubt that a state in the exercise of its police power
may protect the public health by licensing and regulating the health
pr0fessions. , 116 S. W. 2d
843 (Tex. Civ. App., --San Antonio 1938, writ ref’d. ): Fraorisco v.,
Board of Dental Examiners, 149 5. W. 2d 619 (Tex. Civ.App. --Austin
l94L writ ref’d. ).
p. 2191
,.. .
The Honorable Betty J. Anderson, page 5 (H-483)
In undertaking its obltgation to protect the public, the State murt
adopt those means which encroach least on fundamental rights, in-
cluding the right to practice one’s profession. England V. Louisiana
State Board of Medi.cal Examiners, 246 I?. Supp. 993, 997 (E. D. La.
1965) aff’d. 384 U.S. 885 (1966). Shelton v. Tucker, 364 U.S. 479,
488 (1960).
In two cases involving a State’s right to obtain information from
an individual, the United States Supreme Court has regarded as rig-
nificant whether or not the information was treated as confidential.
In Shelton v. Tucker, suprz, a statute requiring teachers to disclose
organizational associations was held unconstitutional, the Court
specifically noting that the statute did not require the information to
be kept confidential. In upholding a state bar licensing statute, the
court considered it significant that answers provided by an applicant’
on a questionnaire were treated as confidential. Law Students Civil
Rights Research Council, Inc. v, Wadmond, 401 U.S. 154, 157 n. 4
(1971).
The Legislature’s recognition of the privacy interest in the type
of information about which’you inquire is found in sections 3(a)(2)
and 3(a)(14) of the Open Records Act. The first protects information
in personnel files from disclosure “which would constitute a clearly
unwarranted invasion of personal privacy” and the second protects
student records at educational institutions.
While neither exception precisely fits the situation you pose, the
intent to protect this type of information from disclosure is clear.
In the absence of statutory or case law, we cannot say that all
the information in question is made confidential by law, s o as to
bringit within the exception of section 3(a)(l) of the Act. Thus, it is
not posaibln to resolve the issue in response to your general question.
A factual determination as to whether particular information is private
is necessary.
In our opinion, the Board may properly make a factual determination
as to whether certain information it holds is private, based on whether
it is information the disclosure of which would outrage, or cause mental
suffering, shame or humiliation to a perron of ordinary sensibilities.
BilMnns v. Atkinson7 489 S. W. 2d 858 (Tax. 1973).
p. 2192
c
The Honorable Betty J. Anderson, page 6 (H-483)
.
If in rerponse to a particular request the Board determines that
the specific information sought is private and thus excepted from
disclosure, and that~ determination is disputed by the requesting party,
the question should be presented for our de&ion on the facto of that
case under section 7 of the Open Records Act.
Your third question is whether the grades made by students of
a specific r&o01 of the healing arts is public information. We do not
believe that any of the exceptions to the Open Records Act would .restrcit
disclosure of the grades made by students of a specific school of the
healing arts. This is not to say that the Board is obligated to make
such compilations and comparisions, but the information is public and
must be made available for public inspection.
Your fourth question asks whether an applicant’s file is public
information while the application is under evaluation or investigation.
Section 6(a)(l) of the Open Records Act specifically makes public
information of evaluations and investigations made by governmental
bodies upon completion.
In Attorney General Opinion H-90 (1973). we stated that this sub-
section does not apply to records, as such. The Act does not require
the “evaluation or investigation” to be disclosed in partially completed
form, but the records upon which the “evaluation or investigation” is
based may be “public information” at all times.
The physical form or location of information is not determinative
of the issue of whether it is public information. An applicant’s “file”
may contain both disclosable and non-dieclosable information.
The Act does recognize in section 4 that information might be in
active use and therefore not immediately available, in which case the
custodian is to advise the person requesting the information of ” a date
and hour within a reasonable time when the record will be available
. . . . II
Our answer to the question is that the fact that an applicant’s
file is under evaluation or investigation does not thereby except all
information in the file from dirclosure until after completion.
p. 2193
*’ .
The Honorable Betty J. Anderson, page 7 (H-483)
Your fifth question asks whether information in an applicant’s
Ale is public information if the Board has reason to believe that
litigation may occur concerning the application.
Section 3(a)(3) of the Open Records Act excepts from disclosure
%formation relating to littpatlon of a crtminal or civil nature and
settlement negotiations, to which the state . . . is, or may be, a
party, or ‘to which an officer or employee of the state . . . is, or
may be, a party, that the attorney general. . . has determined
should be withheld from public inspection . . . ”
In Attorney General Opinion H-90 (1973) we stated: “Where the
records concern a matter in litigation, it is our opinion that a State
agency. . . must withhold such information related to the litigation
as the attorneys representing the State or its agencies . . , may
require, but the remainder should be released. ”
We believe that this exception is applicable prior to, as well as
during, litigation, but the anticipation of litigation must be a reasonable
one related to a specific matter as opposed to a remote possibility
among a group or classification, such as all persons who fail to pass
the examinatioa
SUMMARY
Authority to conduct an examination includes
authority to maintain the confidentiality of the
examination questions.
An applicant for certification may have a
privacy interest in personal information in his
file.
The grades made by students of the healing
arts are public information.
p. 2194
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The Honorable Betty J. Anderson, page 8 (H-483)
The fat that an applicant’s file tr under
evaluation or investigation does not except all
icformation in the file from dirclorure.
If litigation is reasonably anticipated in
regard to a rpectftc Board action, the mxtion
3(a)(3) exceptioh of the Open Records Act
-Y am%
Very truly yours,
I
Attorney General of Texas I
APPROVED: ‘.
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DAVID M. KENDALL, Fir8t Assist&t
I
C. ROBERT HEATH, Chairman I
Opinion CoxWnittee
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p. 2195 .