                                   February    27.   1987




Mr. Bryan M. Perot                        Opinion    No.     JM-640
Executive   Officer
Polygraph   Examiners Board               Re:      Whether the Open Meetings Act, art-
P. 0. Box 4087                            icle      6252-17,      V.T.C.S..      permits     the
Austin,   Texas     70773                 Polygraph        Examiners     Board     to   conduct
                                          licensing       examination     in closed   session:
                                          whether the board’s         questions    and answers
                                          are     subject     to the     Open Records      Act,
                                          article      6252-17a.     V.T.C.S.,    and whether
                                          the board can bar examinees            from hearing
                                          other exsminees’        questions    and answers

Dear Mr. Perot:

          You   have   requested     an   opinion     from    this    office.        Your   letter
states:

                    The Polygraph       Examiners Board currently         utilizes
                a three-phase       licensing     examination.       Phase III is
                an oral        examination      administered      by    the    board
                members.       This phase of the examination           has tradi-
                tionally      been    incorporated      into    a board     meeting
                day to allow       the board       to conduct     as much other
                business     as possible,       and thereby      maintaining      the
                most     efficient        use    of    the     board’s      limited
                appropriation.

                    1.   Under the Texas Open Meetings        Act,    is it
                proper    for    the   board   to   excuse those    in   the
                audience,    close   the meeting and proceed    with Phase
                III of the Licensing       Examination?

                   2.  Are the board’s questions and the examinee’s
                answers subject to the Texas Open Records Act?

                    3.    Can other    examlnees  be barred           from      hearing
                another’s    questions    and answers?

       The board is subject        to the Open Meetings         Act.   article   6252-17,
V.T.C.S.     V.T.C.S.   art.    4413(29cc),     95(j).      Except in those instances
enumerated in section        2 of the act. any “meeting”          of an entity    subject
to the act must be open to the public.                 V.T.C.S.   art.  6252-17,   52(a).
Section   l(a)   of the act, however,       defines     a “meeting”    as
Mr. Bryan M. Perot        - Page      2     (JM-640)




              any deliberation      between a‘quorum    of members of a
              governmental     body at which any public      business    or
              public   policy   over which the governmental      body has
              supervision     or control   is discussed   or considered,
            ” or at which any formal action        is taken.    (Emphasis
              added).

“Deliberation”      is   defined      in section       l(b)    of   the act   as

             a verbal   exchange  between a quorum                      of members of
             a governmental    body   attempting  to                     arrive at  a
             decision  on any public    business.

In our opinion,      a board       session      held    solely    for the     purpose   which   you
have    described     would         involve       no     “deliberation.”         and    hence    no
“meeting,”    within   these       definitions.

       As we envision       such a session,          board members would simply             put
questions    to prospective      licensees      and listen     to their answers.          Given
the presence      of the examine=.         it would seem inconceivable               that the
board    members would,        at this      session,      discuss     the merits       of   the
responses.      In view of this.         we do not believe           that such a session
would involve     any “exchange”       among the board members; on the contrary,
any exchange       would    be between         individual       board    members and the
examinea.     Even if such a question-and-answer               session    did-involve      some
“exchange ,” moreover,       no “[attempt]        to arrive      at any decision        on any
public   business”     would be involved.            That attempt       would come later,
when, out of the earshot            of the examinee.         the board members discuss
the examinee’s      responses.

       We therefore     conclude     that   a board      session    at which   board
members merely ask questions        and listen     to the answers of prospective
licensees    would not be a “meeting”           within    the Open Meetings     Act.
Accordingly,    the Open Meetings      Act does not require       the board to open
this   meeting   to the public.        We do not consider        the effect  of any
other statute.      Sea. e.g.,   V.T.C.S.   art.    6252-13a.

       Regarding     your second question,       the          Open Records Act applies         only
to tangible      items such as documents         and           other   “developed    materials.”
V.T.C.S.    art.    6252-17a,    §2(2)  (definition               of “public    records”).      The
act would embrace the board’s             questions              and an examinee’s         answers,
therefore,     only to the extent       that they             are in some such item.           Even
to this extent,       the questions    and answers              could generally     be withheld.
In Open Records Decision         No. 353 (1982).              we said that

             the authority       to conduct      an examination     ‘neces-
             sarily     Includes     the    authority    to maintain     the
             confidentiality       of the questions      used to test    the
             knowledge      of the person      examined. ’ Open Records
             Decision     No. 118 (1976) ; Attorney        General Opinion
             B-242 (1974).       In addition,      it has been held that,
             where an examiner’s        policy   is to reuse examination



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Mr. Bryan M. Perot       - Page    3     (JIG640)




             questions      and knowledge       of a past      examination's
             questions      would   compromise       the effectiveness         of
             future    examinations,      the agency may maintain            the
             confidentiality       of past       examination     questions.'
             Open Records       Decision     No. 118; Attorney         General
             Opinion    R-483 (1974).        Thus, if the questions            on
             the [city       of College     Station's]      examination      for
             master electrician        are reused,       the city may with-
             hold   them from public          disclosure.       By the same
             reasoning,       If the grader's           work papers      would
             reveal    the contents      of the examination,          and the
             questions      are reused,     the city      may also withhold
             those work papers.

The board,  therefore,     clearly   may withhold      examination   questions    which
have not yet been given.           To the extent        that   it reuses    questions,
moreover , the board may deny requests          for those questions,        as well as
for   the answers    thereto.      Typically,     disclosure     of the answers        to
questions  would be tantamount          to disclosure       of the questions       them-
selves.

        In answer to your final          question,     you have suggested        no reason
why the board         could    not prevent      an examinee     from hearing        another
examinee's     questions      and answers.      The right   to keep examinees apart,
moreover.    would seem to be inherent           in the board's    right,    conferred     by
article     4413(29cc),        V.T.C.S..     the    Polygraph     Examiners       Act,     to
administer      a licensing       examination.       In addition.      section     6(a)    of
article    4413(29cc)     directs    the board to "issue       regulations      consistent
with the provisions         of this Act for the administration           and enforcement
of this Act.     . . ."      Thus, the board could deal with this matter in an
administrative      regulation.

                                       SUMMARY

                    The Open Meetings      Act would not apply          to a
             session      of   the Polygraph    Examiners      Board     held
             solely     for   the purpose    of examining      prospective
             licensees.        The Open Records     Act authorizes        the
             board to deny requests         for examination      questions
             and auswers         which appear    in    "public     records"
             subject     to the act.    when the questions        have not
             yet been given or have been administered               but may
             be reused.       The board may prevent     an examinee from
             hearing     another examinee's    questions    and answers.

                                                     Very       truly     your$   A
                                                            I



                                                     JIM           MATTOX
                                                     Attorney           General   of Texas




                                         p.   2898
Mr. Bryan M. Perot     - Page 4        (JM-640)




JACK EIGETOWER
First Assistant Attorney         General

MARY KELLER
Executive Assistant     Attorney     General

RICK GILPIN
Chairman, Opinion     Committee

Prepared    by Jon Bible
Assistant    Attorney  General




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