                               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
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        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
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    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
    . .       _
-         .



                  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:                                                                         ‘.
                                                                                                         I
                                                                                                         I
                  DAVID M. KENDALL,              Fir8t   Assist&t

                                                                                                         I
                  C. ROBERT HEATH, Chairman                                                              I
                  Opinion CoxWnittee
                                                                                                         I
                                                                                                         I
                                                                                                         I
                                                                                                         I


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