                        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?




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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).




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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




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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 US 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.     . . . ”




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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
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