Request By:
John M. Higginbotham, Ed.D.
Director, Secondary Instruction
Franklin County Schools
P.O. Box 980
916 East Main Street
Frankfort, Kentucky 40602
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Lois McAllister has appealed to the Attorney General pursuant to KRS 61.880 your denial of her request to inspect and copy a particular document in the possession of the school system.
This office has not been furnished with a copy of Ms. McAllister's letter of July 15, 1987, to the Franklin County School System in which she requested a copy of the tape recording of her answers to an interview with you which was a part of the school system's teacher selection process. That letter, however, was mentioned by you in your response on behalf of the school system.
Your letter of July 16, 1987, to Ms. McAllister stated in part that it "is a response to your July 15, 1987, request for a copy of the tape recording of your answers to the SRI Teacher Perceiver Interview, a part of Franklin County Schools' teacher selection process. " You advised Ms. McAllister that her request was being denied and in support of your decision you cited KRS 61.878(1)(e), KRS 61.878(1)(h) and KRS 61.878 (3). You maintain that these statutory exceptions to inspecting and copying public records support your denial of her request for a copy of the interview tape of her answers to your questions.
In a lengthy letter to this office, Ms. McAllister in part challenges your handling of her request and the reasons you advanced in support of your denial of her request. She also brings up such matters as the subjectivity of the interview technique in question and other aspects of the school system's hiring process. However, since this letter is in response to an appeal to the Attorney General's Office under the Kentucky Open Records Act (KRS 61.870 to KRS 61.884), the only issue that will be discussed is whether Ms. McAllister is entitled to obtain, under the terms and provisions of the Open Records Act, a copy of that portion of the tape containing her answers to questions you asked as part of the school system's "teacher selection process. "
OPINION OF THE ATTORNEY GENERAL
KRS 61.870(2) defines the term "public record" in part as follows:
"'Public record' means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency . . . ."
Thus, the tape in question is a public record and the school system or school district is a "public agency" as the term is defined in KRS 61.870(1).
KRS 61.878 sets forth the exceptions to the inspection and copying of public records of public agencies. Among those records which may be excluded from public inspection in the absence of a court order authorizing inspection are those set forth in KRS 61.878(1)(e):
"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;"
If we presume that the SRI Teacher Perceiver Interview, which is part of your school system's teacher selection process, involves an examination, then it is the questions you asked (the test questions) which are excluded from public inspection and not the answers to those questions. While KRS 61.878(1)(e) specifically includes test questions among the material which may be excluded from public inspection there is no reference to test answers. Ms. McAllister is concerned with only her answers to your questions as she apparently has obtained some or all of the questions from another source.
Thus your reliance upon KRS 61.878(1)(e) and KRS 61.878(3) in support of your denial of Ms. McAllister's request is misplaced. Those provisions refer to test questions and examinations for employment as among the documents which may be excluded from inspection. Ms. McAllister is requesting a copy of her answers to the so-called examination and not the test questions or the examination itself.
You also cite KRS 61.878(1)(h) in support of your decision. That provision provides that among the records which may be excluded from public inspection in the absence of a court order authorizing inspection are:
"Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;"
You maintain that on the basis of an applicant's answers to the questions asked, preliminary recommendations are made regarding that person's suitability for employment with the school system. While such preliminary recommendations made by you or other officials of the school system may be withheld, the formulation of such preliminary recommendations and opinions does not convert the applicant's answers to the test questions into preliminary statements which are exempt from her inspection.
Apparently the tape in question contains both the questions you asked and the answers given by Ms. McAllister in response to those questions. In regard to documents which contain both excepted and non-excepted material and the public agency's responsibility in such a situation we direct your attention to KRS 61.878(4) which provides:
"If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination."
See also
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 111 (1981).
The public agency is therefore required to make available for public inspection those records or parts of records which cannot legally be withheld from public inspection and, if necessary, to separate from those records which are subject to public inspection the records or portions of records which may be withheld from public inspection.
In conclusion it is the opinion of the Attorney General that the school system improperly denied the applicant-teacher' s request for a copy of that portion of a tape containing the applicant-teacher' s answers to questions propounded by the school system, the questions having been asked as part of the school system's teacher selection process.
As required by statute a copy of this opinion is being sent to the requesting party, Ms. Lois McAllister. If you or the public agency decide not to comply with the findings set forth in this opinion, proceedings challenging this opinion may be instituted in the appropriate circuit court pursuant to KRS 61.880(5).