Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Louisville Civil Service Board violated the Open Records Act in partially denying Sergeant Steve Owen's June 24, 2002 request for records relating to his examination for promotion to lieutenant and the assessment of his performance on this examination. For the reasons that follow, we find that although its original response was deficient, the Board subsequently cured this deficiency by demonstrating how KRS 61.878(3) authorized the partial denial of Sergeant Owen's request.
On June 24, Sergeant Owen requested "personal copies" of records identified as follows:
1. [A]ll paperwork and or audio materials that relate to my performance. This would include but not be limited to any tapes, notes, and other materials that were collected from me or provided by me during any and all of the exercises.
2. [A]ll of my personal score sheets that were scored by the assessors during any and all of the exercises. This request would also include any notes made about my responses or performance during all of the exercises.
3. [A]ll tapes (audio or video) and or written material that demonstrate the various levels of acceptable or unacceptable performances in response to each one of the scenarios presented during the job simulation exercises. Specifically, I am requesting copies of responses that the assessors heard or read in preparation for listening to or reading my responses in order to evaluate how responses should be scored. This would include any tapes and or written material provided by any of those who wrote or designed scenarios, as well as any tapes or written material furnished by Civil Service.
4. [A]ny and all checklists used by the assessors during any and all of the exercises. Specifically, I want to see how the assessors recorded my scores on a checklist or guide. I want to view the guide that they used as they listened to or read my responses and then recorded the appropriate scores on a score sheet.
5. [T]he names of all assessors used during this process. In addition to their names, I would like to be informed as to their place of employment.
6. [A]ny audio or videotape that may have been made while the group of assessors were evaluating and scoring my responses. I request only information that concerns me specifically.
7. [E]ach of the scenarios that were used during this most recent assessment center/job simulation for Police Lieutenant.
In a response dated June 28, 2002, Assistant Director of Law for the City of Louisville, Stephanie Harris, notified Sergeant Owen that the Board would honor request five for names and places of employment of "all assessors used during this process," and that the Board does not maintain any records that are responsive to request six. On behalf of the Board, Ms. Harris denied the remaining five requests on the basis of KRS 61.878(1)(g). She explained that the records identified in requests 1, 2, 3, 4, and 7 "are test materials, scoring keys and other test data used to administer examinations for police lieutenants, " and that the records therefore qualified for exclusion under the cited exemption.
Shortly thereafter, Sergeant Owen initiated this open records appeal through his attorney, Jon L. Fleischaker (hereinafter referred to as "Appellant"). In his letter of appeal, Appellant questioned the Board's reliance on KRS 61.878(1)(g) authorizing 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[.]
He observed:
The language of this exemption makes it inapplicable to this request. First, Sergeant Owen requested records related to tests for promotion, not "tests for employment." Second, even if the records were related to examinations for employment, test questions, scoring keys, and other examination data can only be withheld if (1) the exam has not yet been given or (2) the exam is to be given again. Sergeant Owen requests information about exams that (1) have already been given and (2) will not be given again. Thus, the information that Sergeant Owen requests is not subject to the inspection of KRS 61.870 to 61.884.
Assuming for the sake of argument that KRS 61.878(1)(g) authorized nondisclosure of the requested records, Appellant asserted that "KRS 61.878(3) makes it inapplicable." He quoted a portion of KRS 61.878(3):
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee . . . [or] an applicant for employment . . . to inspect and to copy any record including preliminary and other supporting recordation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting recordation. [sic.]
(Emphasis added by Appellant.) It was his position that because Sergeant Owen is an employee of the City of Louisville Division of Police, and an applicant for the position of lieutenant within the Division, KRS 61.878(3) endows him with "the right to inspect his examination scores, and preliminary and other supporting recordation [sic] relating to this promotion opportunity." Finally, Appellant argued that the public generally, and Sergeant Owen in particular, "has a right to know how promotions are granted within the Division of Police," and that the Board's denial of his request "violates the purpose of the Open Records Act. "
In supplemental correspondence directed to this office following commencement of Appellant's appeal, Board attorney Mark W. Dobbins elaborated on his client's position. In response to the argument that KRS 61.878(1)(g) is inapplicable because the examination in question was a promotion examination and not an employment examination, Mr. Dobbins observed:
The Board maintains, first, that the exemption does apply because the term "tests for employment" does not exclude tests for promotion. It is an exercise in hypertechnical semantics to suggest a distinction between "promotion" and "employment" exams. Sgt. Owen cites KRS 61.878(1)g) in support of this part of his argument because it authorizes a public agency to refuse to disclose materials relating to "employment" examinations. However, that statutes [sic] makes no distinction between "employment" and "promotion" examinations. Had the legislature intended such a distinction surely it would have addressed it in terms of "initial employment" versus "promotion" . Moreover, why would the legislature seek to confer a superior record inspection privilege upon an individual taking a promotional examination than upon one taking an initial employment examination? It would not.
Turning to the argument that KRS 61.878(1)(g) is inapplicable because the examination has already been given and will not be given again, Mr. Dobbins responded:
With regard to the second prong of Sgt. Owen's appeal, it is important to understand that the Board's examination questions are typically presented again from one test to another, albeit perhaps with some variation of the facts of the situation presented.
Essentially, new examinations are simply alternate and perhaps thinly disguised forms of previous exams. The same types of exercises are assigned on the examinations from year to year, such as situational, tactical and community policing exercises. A fact pattern is created and a list of all possible answers is generated. The possible answers are then categorized as Excellent, Good, Average, etc., thereby giving the test assessors a uniform "key" by which to assess the answers of each candidate.
Given the limited nature of the exercises and the topics examined, there are a finite number of responses for each different type of exercise, regardless of the actual fact pattern. For example, in a situational exercise, the fact pattern would present a set of personnel problems with a subordinate police officer and the examinee would be expected to explain the proper steps to be taken by the examinee as a commanding officer in order to resolve those issues. Despite what the actual facts or details of the problems are, the appropriate answers as to how to deal with a subordinate would largely remain the same. Thus, production of those materials relating to prior examinations requested by Sgt. Owen, such as the questions or the possible response charts used by the assessors, would amount to disclosing questions or answers for examinations that have not yet been given or that may be given again.
With reference to Appellant's argument that KRS 61.878(3) requires the Board to disclose the requested records to Sergeant Owen, KRS 61.878(1)(g) notwithstanding, Mr. Dobbins noted the omission of the critical final sentence in KRS 61.878(3) from that portion of statute quoted by Appellant. That sentence, Mr. Dobbins emphasized, "specifically provides [that a] public agency employee . . . shall not have the right to inspect or copy any examination . . ." regardless of whether the examination is given for initial employment or promotion, thereby undermining Sergeant Owen's assertion of statutory entitlement. (Emphasis added by Mr. Dobbins.) He explained:
The Board maintains that all materials requested by Sgt. Owen are part of the examination itself and the ongoing examination process and, therefore, are excepted from disclosure under the Open Records Act. The paperwork and tapes related to Sgt. Owen's performance, score sheets, notes made by assessors, materials demonstrating levels of acceptable performance, materials used by those who design the scenarios presented on the examinations, checklists and guides used by assessors when evaluating the answers of the candidates (scoring keys, in effect), scenarios presented during the most recent examination, and all documents relating to the process of how the questions are drafted, presented, answered and scored reveal the substance of the examinations given by the Board, as well as the optimal answers to the questions. To require the Board to produce all the materials that were used to draft the questions presented on an exam, as well as all the possible answers to those questions, would essentially defeat the purpose of the protection specifically provided by KRS 61.878(1)(g) for tests that may be given again. In an era of extreme sensitivity to cost containment by government, to require that these materials be turned over to Sgt. Owen would be disastrous. The Board would have to go to extreme lengths to create brand new tests on the biannual schedule used for such tests and even then the Board's tests would be compromised.
In closing, Mr. Dobbins refuted Appellant's argument that the Board's denial of Sergeant Owen's request is contrary to the purpose of the Open Records Act. He reasoned:
The Board does not dispute that the public has a right to know how promotional decisions are made. However, the public does not need to know specific details of questions, fact patterns, scoring keys, answers to examination questions and related exam materials in order to understand the methods by which promotion decisions are made. Allowing individuals to obtain copies of past examination questions and materials not only will give those individuals an unfair advantage on future exams, but it also will force the Board to completely overhaul the current system by which it crafts, administers and assesses examinations in order to prevent those individuals from obtaining an unfair advantage.
Noting that the Board affords candidates the opportunity to review, but not obtain copies of, the tapes of their performance, their ratings and the notes of the assessors on their performance in a non-open records context, 1 and thus seeks to promote the candidates' understanding of how promotions are made, Mr. Dobbins reaffirmed the Board's reluctance to provide copies of examination questions and answers in response to an open records request in light of the fact that to do so would "give Sergeant Owen an unfair advantage on future exams . . . [and] establish a precedent that will seriously impede the process of civil service testing in the future." We agree.
By virtue of rights granted by KRS 61.878(3), Sergeant Owen is entitled "to inspect and to copy any record including preliminary and other supporting documentation that relates to him." KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
Thus, as a public agency employee Sergeant Owen is endowed with a broader right of access to records relating to him than the public's general right of access to those records. Records which would otherwise be shielded from disclosure by one or more of the exemptions found at KRS 61.878(1)(a) through (j) as to a third person, must be made available to Sergeant Owen if they relate to him.
There are, however, four exceptions to a public agency employee's broad right of access to his own records. A public agency employee is not entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)), or records or information made confidential by enactment of the General Assembly (KRS 61.878(1)(l)). Nor is the employee entitled to inspect or to copy " any examination or any documents relating to ongoing criminal or administrative investigations by an agency." KRS 61.878(3) (emphasis added). By its express terms, KRS 61.878(3) authorizes public agencies to withhold examinations of any kind or character from the public employee to whom they relate.
In denying Sergeant Owen's request, the Board relied not on the exclusionary language found in KRS 61.878(3), but on KRS 61.878(1)(g) which excludes from public inspection 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. As noted, this exception, which is actually narrower in scope than the exclusionary language in KRS 61.878(3), 2 is inapplicable to public agency employees since it, like the other exceptions codified at KRS 61.878(1)(a) through (j), cannot "be construed to deny, abridge, or impede the right of [such an] employee . . . to inspect and to copy any record . . . that relates to him." 3
While we therefore cannot affirm the Board's denial of Sergeant Owen's request on the basis of KRS 61.878(1)(g), we find that the exclusionary language in KRS 61.878(3) supports its position. Webster's New World Dictionary 487 (2d ed. 1974) defines the noun "examination" as "an examining or being examined; investigation; inspection; scrutiny; inquiry; testing", and the verb "examine" as "to look at or into critically or methodically in order to find out the facts, conditions, etc. of; . . . scrutinize." While an examination is commonly understood to involve an objective assessment of knowledge and skill, these definitions suggest a broader meaning which encompasses the subjective elements of the promotional examination and records relating thereto that are the subject of this appeal. We conclude that Sergeant Owen's broad right of access to records relating to him under KRS 61.878(3) must here yield to the exclusionary language found in the last sentence of that provision because the record he seeks is an examination. Accord, 98-ORD-137 (Kentucky State Police properly denied trooper's request for sergeant's promotional examination on the basis of KRS 61.878(3)).
This position finds support in OAG 92-80 in which this office affirmed the Jefferson County Division of Human Resources' denial of a request for a "Training and Experience Rating Score" used in the hiring process. 4 At page 4 of that decision, we noted that the prohibition on release of a rating scale "is prompted by a concern that candidates who have been afforded access to [it] will be given an unfair advantage in the application process." We concluded:
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)[(g)]. 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 experience rating scale was properly withheld pursuant to KRS 61.878(1)[(g)].
OAG 92-80, p. 4; see also, OAG 87-56 (holding that KRS 61.878(1)(g) authorized nondisclosure of test questions in the SRI Teacher Perceiver Interview which was part of teacher selection); OAG 92-5 (holding that agency properly invoked KRS 61.878(1)(g) in anticipation of request for standards of tests administered to county employee); 01-ORD-20 (holding that KRS 61.878(1)(g) authorize nondisclosure of point factor system for promotion inasmuch as disclosure would give an unfair advantage to employees who were afforded access).
Mr. Dobbins' statement that disclosure of these records would "establish a precedent that would seriously impede the process of civil service testing in the future, "necessitating creat[ion of] brand new tests on the biannual schedule used for such tests," suggests another basis upon which access to the examination might be denied. Although there is no "security" exemption in the Open Records Act authorizing nondisclosure of records that would impede important governmental operations, the Attorney General has recognized:
[a] public agency may properly invoke KRS 61.872(6) to deny a request for public records . . . if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies.
95-ORD-121, p. 8. We need not decide whether disclosure of the promotional examination at issue in this appeal implicates these concerns, thereby warranting invocation of KRS 61.872(6), since KRS 61.878(1)(g) prohibits access to the rating scale by the general public, and the exclusionary language of KRS 61.878(3) prohibits Sergeant Owen's access to it as an examination which relates to him.
Finally, we do not find persuasive Appellant's final argument that the public's right to know is superior to the policies underlying the exemptions invoked by the Board. In
Triplett v. Livingston County Board of Education, Ky. App., 567 S.W.2d 25 (1997), appellants advanced a similar "balancing" argument, asserting that any prejudice that might result from disclosure of the KIRIS assessment examination, was outweighed by the public's need to know. The court rejected the argument, observing:
Recently, the Supreme Court of Iowa was faced with the same issue in Gabrilson v. Flynn, 554 N.W.2d 267 (Iowa 1996), when a local school board member sought to make public a high school assessment test. The Court declined to apply a balancing test, reasoning that there was no indication that the legislature intended such a balancing of interests since they specifically excepted examinations from the open records law. Hence, the Court ruled that the assessment exam was not covered by the open records law and could not lawfully be disclosed.
The Court of Appeals adopted this position, and concluded that "permitting the exam to be indiscriminately viewed by the public would interfere with the accomplishment of the objectives for which it was devised. It would certainly jeopardize the integrity and reliability of the exam. " Livington at 34. The court thus declined to apply the "balancing of interest" analysis that is generally confined to the privacy exemption codified at KRS 61.878(1)(a). We believe that the court's position in Livingston applies with equal force to the examination at issue in this appeal, and therefore affirm the City of Louisville Civil Service Board's partial denial of Sergeant Owen's request.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Jon L. FleischakerDinsmore & Shohl, LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Jeff PrewittDirector-City of Louisville Civil Service Board601 West Jefferson StreetLouisville, KY 40202
Stephanie HarrisCity of Louisville Department of Law601 W. Jefferson StreetLouisville, KY 40202
Footnotes
Footnotes
1 If inspection were permitted in response to an open records request, the requester would enjoy a corollary right to obtain copies. KRS 61.874(1); OAG 89-40.
2 Under the terms of KRS 61.878(1)(g) a record may be withheld only if: 1) it consists of test questions, scoring keys, or other examination data; 2) is used to administer a licensing examination, examination for employment, or academic examination; and 3) is requested before the exam is given or if it is to be given again. The exclusionary language found in the last sentence of KRS 61.878(3), on the other hand, authorizes nondisclosure of "any examination." (Emphasis added.)
3 Standing alone, the promotional examination for lieutenant, including simulation and assessment center tests, does not "relate to" Sergeant Owen. As applied to Sergeant Owen in evaluating him for promotion to lieutenant, and juxtaposed with the performance review and score sheets pertaining to Sergeant Owen, the promotional examination does "relate to" him.
4 Our decision in OAG 92-80 was based on the exception for test questions, scoring keys, and other examination data found at KRS 61.878(1)(g) (previously codified as KRS 61.878(1)(e)). When this decision was issued the rights granted by KRS 61.878(3) had not been extended to public agency employees generally, but only applied to state employees. The requester's right of access to records relating to him in OAG 92-80 was therefore circumscribed by the exceptions codified at KRS 61.878(1)(a) through (j), including KRS 61.878(1)(g).