              TEBEA~TORNEYGENEICAL
                      OF TEXAS
                        AUSTIN.     -rsxAa      78711




                             December     20.   1974


The Honorable Betty J. Anderson                   Opinion No.   H-   484
Executive    Secretary
Texas State Board of Examiners    in              Re: Applicability of Open
   the, Basic Sciences                            Meetings Act to certain
1012 Sam Houston Bldg.,  201 East                 meetings held by the Texas
  14th St.                                        Board of Examiners    in the
Austin,   Texas    78701                          Basic Sciences.



Dear Mrs.   Anderson:

        Your opinion request requires us to consider the applicability
of the Open Meetings Act, article 6252-17,  V. T. C. S., to certain
portions of the meetings held by the Texas State Board of Examiners
in the Basic Sciences.  Your questions can be stated as follows:

                    (1) Must the Board hold open to the public
               the portion of a meeting during which it considers
               applications    for certification   and discusses the
               academic     records of individual applicants and
               other pertinent information       about them?

                    (2) Must the Board hold open to the public
               the portion of a meeting during which examination
               questions are proposed,   examined,   discussed, and
               approved for usage by the Board in an examination
               session?

                   (3) Must the Board hold open to the public
               the portion of a meeting during which examinations
               are graded and the results recorded?




                                  p.    2196
The Honorable    Betty J. Anderson        page 2   (H-484)




                      (4) May the Board hold a closed meeting when
                 it believes the information to be discussed  concerns
                 a situation which may result in litigation to which
                 the Board may be a party?

         The Open Meetings Act was enacted in order to assure the public
an opportunity to be informed concerning      the transaction  of public business.
Its provisions   are mandatory and are to be construed liberally       in order
to effect its purposes.     Toyah Ind. Sch. Dist. v. Pecos-Barstow        Ind. Sch.
gi.&. ,   466 S. W. 2d 377 (Tex. Civ. App. --San Antonio 1971, no writ).
By definition,   it would embrace the Texas State Board of Examiners          in
the Basic Sciences      and would require its meetings to be open to the
public. “Meeting”    is defined in section l(a) of the Act-as follows:

                     ‘Meeting’ means 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 super-
                vision or control is discussed   or considered,
                or at which any formal action is taken. (Emphasis
                added).

         We do not think it was the intent of the Legislature      to include
discussions    of information   deemed confidential     by constitutional,   or
other law, within the prohibition against privately discussing         or
considering    “public business or public policy. ” imputing the converse
as the legislative    intent would bring the constitutionality   of the statute
into question.     In order to give effect to those consitutional    and statutory
provisions   making certain information     confidential,   we think the Open
Meetings Act must be construed in harmony with them.

         We now turn to your first question in which you ask whether the
Board must hold open to the public the portion of its meetings during
which it considers    applications for certification and discusses    the
academic    records of the individual applicants and other pertinent
information    submitted in connection with their application.     Section 2




                                     p.   2197
The Honorable     Betty .J. Anderson     page 3     (H-484)




of the Open Meetings Act illustrates         certain topics which governmental
bodies are permitted to discuss in closed session,           but deliberations     about an
 applicant’s   qtialifi~cations for certification   or for a license ‘are not included in
the list.    We are aware of no statute or other source         of law that generally
makes confidential academic          records or other information      submitted to
the Board in connection with an application for certification.             If the Board
determines,     however,      that, as a matter of fact, the information       with
which it is dealing is such as to give rise to a protectable          private interest,
the Open Meetings Act would not require the Board to hold open to the
public the portion of a meeting during which it considers            the information.

     In your second question you ask whether the Board must hold open
to the public the portion of a meeting during which examination questions
are prepared,     discussed,    and approved for usage by the Board in an
examination    session.     The Board is required to examine applicants in
order to determine their knowledge,        ability,  and skill in the basic sciences
and to conduct the examinations       in an entirely fair and impartial manner.
V. T. C.S. art. 459Oc, sec. 6. Since an examination would be rendered
unfair and ineffective    if the questions to be asked were made known in
advance,    we determined in Attorney General Opinion H-483             (1974) that the
statutory directive to conduct examinations         necessariIy  carries with it the
authority to maintain the confidentiality      of the questions to be asked.      See
                                                                                  -
also
-     Attorney   General   Opinion  H-242   (1974).

     Obviously,   the Board’s authority to maintain such confidentiality
would be seriously     undermined if the portion of its deliberations      at which
future examination questions were discussed         and approved were open to
the public.     We cannot ascribe to the Legislature     such an intent.    It is our
opinion, therefore,     that discussions   by the Board of matters made con-
fidential by implication    from the Board’s powers may be discussed at a
meeting not open to the public.       But the fact that legally protected con-
fidential information    need.mt be discussed    in public does not mean that the
entire subject can be dealt with privately.       Only the discussion    of the con-
fidential information    is outside the Open Meetings Act; the topic itself,       and
the remainder     of the Board’s discussion    or consideration   of it, are within
the Act and “public business. ”




                                       p. 2198
The Honorable     Betty J. Anderson,     page 4      -(H-484)




     In your third question you ask whether the Board must hold open to the
public the portion of a meeting during which examinations            are graded and
the re.sults recorded.      Unless some other law makes them confidential,
deliberations    of this kind are not expressly      excepted from the Act’s coverage
by any of the provisions      of section 2.   We are unaware of any statute or
other source of law that makes examination           results confidential.   It is our
opinion that, under the Open Meetings Act,. the Board is required to hold
open to the public that portion of a meeting during which it grades examina-
tions and records the results unlessthe         process would compromise        the
effectiveness   .of future  examinations    by revealing examination questions,        some
or all of which .will be used again.      -See Attorney General Opinion H-483         (1974).
                                        >
     Finally,  you~ask whether the Board may hold a closed meeting when it
believes the information      to be discussed   conce.rns a:.situation which may
result in litigation to which the Board.may         be a.party. ..Section 2(e) of the
Open Meetings Act reads.:as follows:             L.

                  ii, Private consultations    between a,.gove,r,n-    ‘.
                 mental body and its attorney are not permitted
                 except (in those instances in which the body seeks
                 the attorney’s   advice with respect to:pending or
                 conternp$ated litigation,.   settlement offers,, and
                 matters. where the duty of a public body’s counsel
                 to his client,: pursuant to the Code of Prof.kssional
              a ,+esponsibility    of the State Bar of Texas,iiclearly
                 conflicts with this Act.

Thus, by affirmative     provision,    the Act authorizes ,thaBoard      to close to
the public any portion of its meetings during which.it consults with its
attorney about certain matters,       including contemplated    litigation.     Butt
if its attorney is snot present,    the Board is..not expressly    permitted to
conduct a closed session even though~pending or prospective            litigation
might be the subJect of discussion.        Unless such a discussion      additionally
involves matters made confidential by law,         the Act permits    the   discussion
of litigation or its prospects    at closed meetings only when the Board is
consulting its atto,rney,.




                                         up. .2199
The Honorable Betty J. Anderson,     page 5   (J-J-4&4)




                          SUMMARY

             The Texas Open Meetings Law does not require
        the revelation of information made confidential by
        law. If the Board of Examiners in the Basic Sciences
        determines, as a matter of fact, that information in
        an applicant’s file is private and protected from dis-
        closure by constitutional, statutory, or court made
        law, the Board may close that portion of the meeting
        during which it discussess and consjdere the inform-
        ation. The Board of Examiners in the Basic Sciences
        also may close portions of meetings at which it dis-
        cusses examination questions if to reveal such ques-
                                                   ‘.
        tions would compromise future examinakons.       However,
        unless legally confidential material w,ould be thereby
        revealed, discussions undertaken about prospective
        litigation when its attorney is not present cannot be
        closed to the public by the Board.

                                               Very truly yours,




APPROVED:




DAVID   M. KENDALL,     ,First Assistant




C. ROBERT HEATH,       Chairman
Opinion Committee




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