December 20, 1974

The Honorable Betty J. Anderson Executive Secretary Texas State Board ofExaminers in the Basic Sciences 1012Sam Houston State Office Bldg. Austin, Texas 78701 Opinion No. H- 483 Re: Applicability of Open Records Act toinformation and files of Board ofExaminers in the Basic Sciences. V.T;C. S. art; 6252-17a Dear Mrs. Anderson: Your Board has requested our opinion on a number ofquestions concerning the applicability ofthe 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 ofthe healing arts public information? (4) Ifthe information in an applicant’s file is public, may the Board decline to disclose it until after completion of its investigation and evaluation? (5) Ifthe Board has reason tobelieve 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) ofthe Open Records **Act** and is generally subject to the mandote of section 3(a) ofthe **Act,** which provides:

All information collected, assembled, **or** maintained 

### bygovernmental 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 ofthe Board is to examine applicants to determine their knowledge, ability, and skill inthe basic sciences, and to issue certificates ofproficiency 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. 6and 7. Itis awell established principle that a statutory grant ofan express Tawer carries with it by necessary implication every other 

### power necessary for the execution ofthat power. Brow> v. Clark, 116S.W. 360 (Tex. 1309); Terre11 Y. Sparks, 135S.W. 519(Tex. 1911);Imperial Irr. 

### CO. v. Jayne, 138S.W. 575 (Tex. 1911); 53 Tex. Jur.Zd. Statutes $141 (1964); 2A Sutherland, Statutory Construction, $55.04 (4th Ed. 1973). Section 3(a)(l) ofthe Open Records Act exempts from disclosure as public information “information deemed confidential by law, either constitutional, statutory, or byjudicial 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 ofthe specific questions with which the applicant’s knowledge ofa subject is tobe 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.** 2189The 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 totime within an agency, and thus it is not possible toanswer 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 LOselect 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 ofa past examination’s questions would compromise the effectiveness of future examinations, the Board may, within reason, maintain the confidentiality ofpast 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 nolonger be considered confidential. Section 14(a) ofthe Open Records Act provides:

This Act does not prohibit any governmental body from voluntarily making part or all ofits records available tothe public, unless expressly prohibited by law; provided that such records shall then be available toany person. We do not believe administration ofthe examination to applicants for a license would involve that section. Normally, examinations are not administered tothe “public” To qualify totake the examination in the Basic Sciences one has tomeet other rigorous requirements. IU~statute requires that “[t]he examinations shall be conducted in writing, and in such manner as tobe entirely fair and impartial to all individuals and to every school or system or practice,” and further provides that “it is the intent ofthis Act that the examinations given shall be similar tothe 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 ofexaminations which have been administered for one year, after which time they may be released toprofessional schools, certain hospitals, and certain other institutions, but not toindividuals. Insofar as the Board adopts a policy of iimited dts:ribution Of its examinations in furtherance ofthese 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:’rheAct, that aparticular document is or is not pubiic information. ii we are asked todetermine that past exezmination questions sh.>uldbe held confidential, of necessity, we will require proof that such confidentiality is essential to the effective administration ofthe 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 notto disclose such information. based on consideration for the individual’s right of privacy. The purpose ofthe 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 ofthe Basic Sciences Act is toprotect the public health by insuring that persons who wish to practice the healing arts are quaMied todo so. V. T.C.S. art. 4590~. sacs. 1and 6. The problem is whether their combined effect is to make it acondition ofpracticing the healing arts that the applicant reveal personal information not only to members ofaqualified board for their professional evaiuation of his qualifications, butalso toany member of the public who chooses to seek it for any reason. There is nodoubt that a state in the exercise ofits police power **may** protect the public health by licensing and regulating the health pr0fessions. , 116S.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 toprotect the public, the State murt adopt those means which encroach least on fundamental rights, including the right topractice one’s profession. England V. Louisiana State Board ofMedi.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). Intwo cases involving aState’s right to obtain information from anindividual, the United States Supreme Court has regarded as rignificant whether 

### or not the information was treated as confidential. InShelton 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. Inupholding a state bar licensing statute, the court considered it significant that answers provided by an applicant’ on aquestionnaire were treated as confidential. Law Students Civil Rights Research Council, Inc. v, Wadmond, 401 U.S. 154, 157n. 4 (1971). The Legislature’s recognition ofthe privacy interest in the type ofinformation about which’you inquire is found in sections 3(a)(2) and 3(a)(14) ofthe Open Records Act. The first protects information inpersonnel files from disclosure “which would constitute a clearly unwarranted invasion ofpersonal 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. Inthe absence of statutory or case law, we cannot say that all the information in question is made confidential by law, soas to bringit within the exception of section 3(a)(l) ofthe Act. Thus, it is notposaibln to resolve the issue in response toyour general question. A factual determination as to whether particular information is private is necessary. In our opinion, the Board may properly make afactual determination as towhether certain information itholds is private, based 

### onwhether it is information the disclosure ofwhich would 

### outrage, or cause mental suffering, shame or humiliation to aperron of ordinary sensibilities. BilMnns v. Atkinson7 489 S.W. 2d 858 (Tax. 1973).

p. 2192c

The Honorable Betty J. Anderson, page 6 (H-483)

.
Ifin 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 

### ofthat case under section 7of the Open Records Act. 

### Your third question is whether the grades made by students 

### of a specific r&o01 

### ofthe healing arts is public information. We do not believe that any ofthe exceptions tothe Open Records Act would .restrcit disclosure 

### ofthe grades made by students ofa specific school ofthe healing arts. This **is** not to say that the Board is obligated tomake 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 ofthe issue 

### ofwhether it is public information. An applicant’s “file” may contain both disclosable and non-dieclosable information. The **Act** does recognize 

### in section 4that 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”adate 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 

### ofacrtminal or civil nature and settlement negotiations, towhich the state
. . . is, or may be, 

### a party, or ‘towhich an officer or employee ofthe state
. . . is, 

### or may be, aparty, 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 amatter in litigation, it is our opinion that aState 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 

### oflitigation must be 

### a reasonable one related toa 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 tomaintain the confidentiality ofthe examination questions. An applicant for certification may have a privacy interest in personal information inhis 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 anapplicant’s file trunder evaluation or investigation does not 

### except all 

### icformation in

### the file from 

### dirclorure. Iflitigation 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 ofTexas APPROVED: ‘
.

DAVID M. KENDALL, Fir8t **Assist&t**



### C. ROBERT 

### HEATH, **Chairman** 

### Opinion CoxWnittee

p. 2195
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