Could the Texas Polygraph Examiners Board conduct oral licensing examinations privately and withhold reusable questions and answers?

Texas AG Opinion JM-640: Polygraph Licensing Exams

Plain-English summary

The Polygraph Examiners Board asked whether it could exclude the public while board members orally examined license applicants, whether the questions and answers were public records, and whether applicants could be kept from hearing one another's examinations.

The Attorney General concluded that a session devoted solely to board members asking questions and listening to an applicant's answers was not a "meeting" under the Open Meetings Act. On the assumed facts, the board members did not exchange views or try to reach a decision during the examination. Their later discussion of the applicant's performance would be a different event. The opinion expressly did not address the effect of other statutes.

The Open Records Act reached questions and answers only when they appeared in documents or other developed materials. Questions that had not yet been used could be withheld. Questions that might be reused, and answers that would reveal those questions, could also generally remain confidential to protect future examinations.

The Board could prevent one applicant from hearing another applicant's questions and answers. The opinion treated that authority as inherent in administering a licensing examination and also available through a Board regulation under the Polygraph Examiners Act.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Was the oral examination itself a meeting under the Open Meetings Act?

Not on the facts assumed. The opinion said mere questioning and listening involved no deliberation among a quorum and no attempt to reach a decision.

What if board members discussed the applicant's answers during the session?

That would depart from the opinion's premise. JM-640 assumed that discussion of the merits occurred later, outside the applicant's presence.

Were written exam questions public records?

They were within the Act only if recorded in tangible or developed materials, but unused or reusable questions could generally be withheld to protect the examination process.

Could applicants listen to other applicants' oral exams?

The opinion said the Board could keep examinees apart and could formalize that practice by administrative rule.

Background and statutory framework

The Open Meetings Act defined a meeting as deliberation among a quorum about public business or formal action. It defined deliberation as a verbal exchange among a quorum attempting to reach a decision.

JM-640 distinguished an applicant examination from board deliberation. The applicant session involved exchanges between individual board members and the examinee, not among the members themselves.

The Open Records Act applied to tangible public records. Earlier open-records decisions recognized that an agency's authority to test applicants included protecting questions whose disclosure would compromise future examinations.

Citations and references

• Open Meetings Act, article 6252-17, V.T.C.S.
• Open Records Act, article 6252-17a, V.T.C.S.
• Polygraph Examiners Act, article 4413(29cc), V.T.C.S.
• Open Records Decision Nos. 353 (1982) and 118 (1976)
• Attorney General Opinion Nos. H-242 (1974) and H-483 (1974)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0640
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0640.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

February 27, 1987

Mr. Bryan M. Perot
Executive Officer
Polygraph Examiners Board
P. O. Box 4087
Austin, Texas 78773

Opinion No. JM-640

Re: Whether the Open Meetings Act, article 6252-17, V.T.C.S., permits the 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 examinees' 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 traditionally 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 examinees 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), § 5(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, § 2(a). Section 1(a) of the act, however, defines a "meeting" as

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 1(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 examinee, 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 examinee. 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. See, 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 "necessarily 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 H-242 (1974). In addition, it has been held that, where an examiner's policy is to reuse examination 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 H-483 (1974). Thus, if the questions on the [city of College Station's] examination for master electrician are reused, the city may withhold 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 themselves.

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 answers 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 yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jon Bible
Assistant Attorney General