Case Information
*1 February 27. 1987 JM-640 Opinion No. Executive Officer
Polygraph Examiners Board Re: Whether the Open Meetings Act, art- P. 0. Box 4087 icle 6252-17, permits Austin, Texas Polygraph Examiners Board to conduct
licensing in closed session: whether and answers are subject the Open Records Act, 6252-17a. V.T.C.S., and whether the board can bar examinees from hearing other exsminees’ and answers Dear Mr. Perot:
You have requested an opinion office. Your letter states:
The Polygraph Examiners Board currently utilizes a three-phase Phase III is an oral administered the board members. This phase of the examination has tradi- tionally been incorporated into a board meeting day to allow the board as much other as possible, and thereby maintaining most efficient use board’s limited appropriation.
1. Under the Texas Open Meetings Act, is proper excuse those 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 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 2 of the act. any “meeting” of an entity to the act must be open to the public. art. 6252-17, 52(a). Section l(a) of the act, however, defines a “meeting” as
any deliberation between a‘quorum of members of a governmental body at which any public 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 l(b) of the act as
a verbal exchange between a quorum of members of a governmental body attempting to arrive at decision on any public business.
In our opinion, a board session held solely 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 to prospective licensees and listen to their answers. Given the presence the examine=. it would seem inconceivable that the board members would, at session, discuss the merits 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 Even if such a question-and-answer session did-involve some examinea. “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 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 to open this meeting 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.” art. 6252-17a, §2(2) (definition of “public records”). The act would embrace and an examinee’s answers, only to the extent they are in some such item. Even to this extent, and answers could generally be withheld. In Open Records Decision No. 353 (1982). we said that
the authority an examination ‘neces- sarily Includes the authority to maintain of the questions used to test knowledge the person examined. ’ Open Records Decision No. 118 (1976) ; Attorney General Opinion B-242 In addition, it has been held that, where an examiner’s policy is to reuse . *3 (JIG640) questions and knowledge of a past examination's questions would compromise the effectiveness of future examinations, the agency may maintain of past examination questions.' Open Records Decision No. 118; Attorney General Opinion R-483 Thus, if the questions on [city of College Station's] for master electrician are reused, the city may with- hold them from public disclosure. By the same If the grader's reasoning, work papers would reveal the contents of the examination, and the questions are reused, the city may also withhold those work papers.
The board, clearly may withhold questions which have not yet been given. To the extent reuses questions, moreover , the board may deny requests for those questions, as well as for the answers thereto. Typically, disclosure of the answers questions would be tantamount to disclosure them- selves.
In answer to your final question, you have suggested no reason why the board could not prevent an examinee another examinee's questions and answers. The right to keep examinees apart, moreover. would seem to be inherent in the board's right, conferred article 4413(29cc), the Polygraph Examiners Act, administer In addition. section 6(a) 4413(29cc) the board to "issue directs 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 the Polygraph Examiners Board held solely the purpose of examining prospective licensees. The Open Records Act authorizes board to deny requests for examination questions and auswers which appear "public records" 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 hearing another examinee's and answers.
Very truly your$ A I JIM MATTOX Attorney General of Texas p.
JACK EIGETOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jon Bible
Assistant Attorney General