Request By:
Mr. Fred Reeves
Principal Owensboro Junior High School
1300 Booth Avenue
Owensboro, Kentucky 42301
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
We are treating Ms. Carol Roberts' recent letter to this office as an appeal to the Attorney General, pursuant to KRS 61.880 of the Open Records Act, of the school system's denial of her request to inspect certain records in its custody. Although her letter raises numerous questions on various aspects of the availability of the records in question this opinion will only deal with her right to obtain a copy under the State Open Records Law of a test administered to her child by the school system.
In her letter of November 16, 1985, to the superintendent of the school system, Ms. Roberts requested copies of all records in the possession of the school system pertaining to her daughter, Tammy Lynn Hicks.
In your letter of November 22, 1985, you advised Ms. Roberts that you were furnishing her copies of all documents pertaining to her daughter except a copy of the actual test battery from the Woodcock-Johnson Psycho-Educational Battery. You stated that to release the actual test would jeopardize its validity for future use.
The undersigned Assistant Attorney General talked with you by telephone on December 26, 1985. You stated that Ms. Roberts had been furnished with copies of all documents in her daughter's school file except a copy of the test itself (the Woodcock-Johnson Psycho-Educational Test). Ms. Roberts had been given a copy of the cover of the test paper which briefly explained the test and contained a statement that the copyright law protected the remainder of the testing material from duplication and unauthorized use. Furthermore, Ms. Roberts has been advised of her daughter's performance on the test which will be administered to other students in the school system.
OPINION OF THE ATTORNEY GENERAL
At the outset we direct your attention to KRS 61.880 (1) and (2). Those provisions require in part that a public agency, upon a request to inspect records, shall determine within three days (excepting Saturdays, Sundays and legal holidays) after the receipt of such a request, whether to comply with the request and shall notify in writing the person making the request within the three day period, of its decision. Furthermore, a copy of the written response denying inspection of a public record shall be forwarded immediately by the public agency to the Attorney General.
The school system has not, in this particular situation, complied with the requirements of KRS 61.880(1) and (2).
In regard to inspecting and obtaining public documents of public agencies and the exceptions to such procedures, KRS 61.878(1) (e) excludes the following public records from public inspection in the absence of a court order to the contrary:
"Test questions, scoring keys and other examination data used to administer a licensing examination, examination for employment or academic examination before the exam is given or if it is to be given again."
The examination in question was administered by the school system and will be used again in the school system. Thus, the school system need not make available for public inspection the actual examination.
In addition, KRS 61.878(1)(i) excludes from public inspection under the Open Records Act, in the absence of a court order to the contrary:
"All public records or information the disclosure of which is prohibited by federal law or regulation;"
If the examination itself is protected from copying or other uses by the Federal Copyright Law then the school system is not authorized to use the examination data in a manner inconsistent with those provisions. See OAG 84-84, copy enclosed.
Therefore, although the public agency (the school system) has not complied with the requirements of KRS 61.880(1) and (2), it is the opinion of the Attorney General that the school system's denial of the request to inspect the actual examination administered by the school to the requesting party's child, which examination will be given again by the school system, was proper pursuant to KRS 61.878(1)(e) and (i) of the Open Records Act.
As required by statute a copy of this opinion is being sent to the requesting party, Ms. Carol Roberts, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).