Request By:
Ms. Pat Childs, Director
Jefferson County Division of Human Resources
Courthouse Annex, Suite 301
Louisville, Kentucky 40202-3305
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. John Schmidt has appealed to the Attorney General, pursuant to KRS 61.880, your predecessor, Ms. Gwen T. Nelson's, response to his March 30, 1992, request to inspect certain records in the possession of the Jefferson County Division of Human Resources. Those records are identified as any "policy manuals outlining ratings and scoring procedures," used by the board in reviewing candidates for the position of Air Pollution Compliance Supervisor. Mr. Schmidt, who is currently employed by Jefferson County Government, has applied for this position, and wishes to inspect any documents which relate to the evaluation process.
Ms. Nelson responded to Mr. Schmidt's request in a letter dated April 3, 1992. She advised him that the policies governing the conduct and content of examinations for the Air Pollution Control Department are contained in the Jefferson County Merit Board Rules and Regulations, copies of which are available at his job site. Citing Rule 5.2 of that document, she explained that examinations typically consist of written or oral tests, physical fitness tests, medical examinations, demonstrations of skills, "and/or ratings of previous experience and training. "
Continuing, Ms. Nelson observed:
The examination score you received for Air Pollution Compliance Supervisor was a rating of your previous experience and training, which was termed a 'Training and Experience rating score' in your score results letter, dated 2/28/92. Computation of any T & E score by this office is uniformly performed pursuant to the applicable scoring key for the job classification in question. The scoring key, or T & E scale as we term it, for the Air Pollution Compliance Supervisor classification is regarded as privileged and confidential, and is not available for public inspection.
She relied on KRS 61.878(1)(e), which exempts from public inspection, except upon order of a court of competent jurisdiction, "[t]est questions, scoring keys and other examination data used to administer . . . [an] examination for employment . . . before the exam is given or if it is to be given again." It was Ms. Nelson's position that the T & E scale would be used again in evaluating future job applicants.
In his letter of appeal to this Office, Mr. Schmidt argues that his open records request was aimed at obtaining "information as to the fairness of the [testing] process." He objects to Ms. Nelson's invocation of KRS 61.878(1)(e), stating:
[U]nder 'e' all the references are to examinations. I am not asking for examination questions or scoring keys. Many positions require no examination but are scored 'somehow' on education and experience converted into a numerical score.
Mr. Schmidt asks that we review Ms. Nelson's response to determine if her actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that she properly denied that portion of Mr. Schmidt's request pertaining to scoring keys.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the witholding of the records and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Ms. Nelson's response to Mr. Schmidt's request was improper, under the Open Records Act, to the extent that she did not reply within three working days. Some seven working days elapsed between the date of the request and the date of the response. Allowing for delays in the mail, her response was nevertheless untimely. We urge you to review the relevant provisions to insure that future responses conform to the Open Records Act.
Turning to the issues in this appeal, we find that although Ms. Nelson failed to comply with KRS 61.880(1), her response was otherwise proper. She advised Ms. Schmidt that a copy of the Jefferson County Merit Board Rules and Regulations could be obtained at his job site, thus satisfying that portion of his request pertaining to policy manuals containing information relating to the conduct and content of examinations.
With respect to the "ratings of previous experience and training" used by the Division for Human Resources in evaluating applicants for the position of Air Pollution Compliance Supervisor, Ms. Nelson explained that the Division calculates a "Training and Experience Score" based on a training and experience scoring key which is exempt for inspection pursuant to KRS 61.878(1)(e). That provision authorizes the nondisclosure of:
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.
In a letter to this Office dated April 28, 1992, you explained that the release of the training and experience rating scale would compromise the integrity of the examination process insofar as the scale specifically designates the number of points which are assigned for an applicant's academic training and employment experience. You noted that both the federal and state governments employ a rating scale similar to the training and experience scale used in Jefferson County, and that both prohibit their release. This prohibition is prompted by a concern that candidates who have been afforded access to the rating scale will be given an unfair advantage in the application process. Hence, the security of the document must be maintained.
While this Office has never had occasion to rule on the precise issue raised in this appeal, it is our opinion that the rating scale, which can be characterized as an inactive examination, falls squarely within the parameters of the exception to Open Records codified at KRS 61.878(1)(e). This provision has been the subject of three previous opinions of this Office, none of which are dispositive of this appeal. However, in both OAG 86-2 and OAG 87-56, we recognized that test questions, which will be used again, are excluded from public inspection. Whether classified as a "scoring key" or "other examination data," we believe that the training and examination rating scale was properly withheld pursuant to KRS 61.878(1)(e).
Moreover, Mr. Schmidt requested access to "information" as to the fairness of the testing process. This Office had consistently recognized that requests for information, and requests that particular methods of inquiry into public records be provided, as opposed to a request for records, are beyond the scope of the Open Records Act. OAG 89-77; OAG 90-19.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. John Schmidt. Mr. Schmidt may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).