December 20, 1974 

The Honorable Betty J. Anderson 

Executive Secretary 

Texas State Board of Examiners 

in the Basic Sciences 

1012 Sam Houston State Office Bldg. 

Austin, Texas 78701 

Opinion No. H- 483 

Re: Applicability of Open 

Records Act to information 

and files of Board of Examiners 

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 information 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 provides 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 disclosure 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 longstanding 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, including 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 rignificant 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 subsection 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 
. . _ 

- . 

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, 

Attorney General of Texas 

APPROVED: ‘. 

DAVID M. KENDALL, Fir8t Assist&t 

C. ROBERT HEATH, Chairman 

Opinion CoxWnittee 

p. 2195 . 

I