Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Governor's Office of Agricultural Policy properly relied on KRS 61.872(6) in partially denying John K. Loy's September 30, 2009, request for records relating to the 2009 County Agricultural Investment Program and identified as:
. scoring guideline for the 2009 CAIP
. scoring committee members from Adair County
. a list of funded projects and applicants for the recent cycle in Adair County [and]
. a rank of projects showing where [Mr. Loy's] application ranked in the recent cycle in Adair County[.]
GOAP provided Mr. Loy with all records identified in his request with the exception of the scoring guideline for the 2009 CAIP. GOAP maintained that KRS 61.872(6) authorized nondisclosure of the latter document insofar as "[r]elease of this information to the public would jeopardize the process by enabling applicants to answer questions in a manner which would enhance their scores" necessitating revision of the guideline each time GOAP honored an open records request. We disagree and find that GOAP violated the Open Records Act in withholding the scoring guideline.
In correspondence directed to this office following submission of Mr. Loy's appeal, GOAP explained that CAIP's goal "is to encourage participating counties to offer the full menu of 'model' programs to a broad range of tobacco dependent producers" through the allocation of state funds. To facilitate the allocations of funds:
GOAP staff developed a questionnaire and a standard scoring process to be utilized by the participating counties. The scoring guidelines are carefully constructed to ensure fairness and universal application for participating counties. . . . [E]ach county council is given the option of formulating additional questions . . . .
GOAP reiterated that release of the scoring guidelines would compromise the selection process in the same manner as:
Releasing answers to a test prior to its administration. In our view the type of test is irrelevant, that is, it could be an academic test, a test for prospective employees or as in this case, a test to determine eligibility for a grant. The bottom line is that each time the scoring guidelines are released GOAP is forced to create a new application and scoring key. Given the intensive number of staff hours we put in to create the 2009 program, we maintain it would be an unfair and unreasonable burden to be required to accomplish this task on a yearly basis.
Our review of the application and scoring deadlines, obtained for in camera inspection under authority of KRS 61.880(2)(c), does not confirm GOAP's position.
This office has, on rare occasions, recognized that KRS 61.872(6) might properly be invoked to support nondisclosure of scoring guidelines or rating scales "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." 02-ORD-168, p. 10, citing 95-ORD-121, p. 8.
In 01-ORD-20, the Attorney General recognized that potential with regard to a point factor system developed by William M. Mercer, Inc., and used by Lexington-Fayette Urban County Government for job evaluation purposes. LFUCG described the system as follows:
When a new or reclassification is requested, an employee completes a Position Analysis Questionnaire ("PAQ") describing job duties and responsibilities. Once the PAQ is completed, it is forwarded to the Division of Human Resources. An analyst in the Division of Human Resources reviews the PAQ and assigns a score based on the six Mercer, Inc. factors. They are as follows: knowledge and experience; complexity and creativity; impact on operations; internal and external contacts; discretion exercised; and physical demands and working conditions.
In determining the score for Factor 1, knowledge and experience, Mercer, Inc. has developed a chart with five levels of knowledge and six levels of experience. Each level contains different requirements. Depending on the amount of knowledge and level of experience required, a score is assessed. Factor 2 relates to complexity and creativity. In determining the score for this factor, there are six degrees of complexity and creativity. A degree is assessed and converted to a score which is based on the difficulty of the task necessary to complete job assignments. Factor 3 relates to impact of operations. This factor is designed to measure an employee's job responsibility. In assessing this score, there is a grid which contains six levels of freedom of action and five levels of magnitude. Based on job responsibilities, a score is assessed. Factor 4 relates to internal and external contacts. This factor also contains a grid. There are four levels of interaction and five levels of nature of contact. Depending on each level, a score is assessed. Factor 4 relates to direction exercised. This level is designed to measure the supervisory responsibility of employees. There are seven degrees and a degree is assessed and converted to a score depending on the level of supervision exercised. Finally, Factor 6 relates to physical demands and working conditions. A grid with five levels of physical demands and four levels of working conditions is measured to determine a score. The scores for all six factors are added and the score is used to determine the job classification and pay grade.
Once the initial assessment process is complete, the analyst presents the PAQ to the Mercer Committee, which is comprised of employees of the Government. The committee also reviews the PAQ's and assigns a score for each factor which converts to a job classification and pay grade. If there is a large disparity between the scores assigned by the Division of Human Resources and the Mercer Committee, the PAQ is forwarded to Mercer, Inc. for assignment of the score, pay grade and job classification.
01-ORD-20, p. 2-3.
Similarly, in 02-ORD-168 the Attorney General recognized the potential application of KRS 61.872(6) to police civil service examinations for promotion, and the corresponding score sheets, which were described as follows:
[N]ew 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.
Continuing the Louisville Civil Service Board explained:
[M]aterials 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.
02-ORD-168, p. 5-6.
Resolution of these open records appeals turned on the application of KRS 61.878(1)(g) to the requested records. Nevertheless, the Attorney General acknowledged that if the agencies could "establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on [them] because the agenc[ies] would be forced to overhaul an existing system each time the records were requested and released, [they] may properly invoke this provision." We noted that "[t]he clear and convincing standard which is built into this provision is sufficient . . . to discourage abuse by public agencies." Id. at 10-11.
KRS 61.878(1)(g) is inapplicable to the scoring guidelines at issue in this appeal. That exception authorizes 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;
A record may only be withheld under KRS 61.878(1)(g) if: 1) it consists of test questions, scoring keys, or other examination data; 2) it is used to administer a licensing examination, examination for employment, or academic examination; and 3) it is requested before the exam is given or if it is to be given again. Contrary to GOAP's argument, the "type of test" is directly relevant since KRS 61.878(1)(g) might otherwise authorize nondisclosure of the records in dispute. Because the CAIP scoring guideline is not used in the administration of a licensing examination, an examination for employment, or an academic examination, it is facially inapplicable.
So too, in our view, is KRS 61.872(6) . The assignment of points under the scoring guidelines or rating scales at issue in 01-ORD-20 and 02-ORD-168 involved subjective assessment based on nuances and gradations in the applicant's unique responses. Reasonable discretion was vested in the scorer to assign points based on the subtleties. Conversely, the assignment of points under the CAIP guideline is directly correlated to purely fact-based questions and involves minimal subjective assessment. As Mr. Loy correctly observes in his letter of appeal, each applicant is required to verify that he or she has truthfully answered each question and that he or she has not answered falsely to secure an unfair advantage. The assignment of points is largely fixed, and the scorer is vested with little or no discretion in the assignment of points. Simply stated, the CAIP application and guideline are virtually impossible to "game" if truthful factual correct responses are made. Mechanisms presumably exist for ferreting out false responses. Because the CAIP guideline lacks the element of subjectivity present in the rating systems at issue in the referenced open records decisions, and is instead an objective review of fact-based qualifications, it is unlikely that significant changes to this guideline could be made. We find that GOAP failed to provide clear and convincing evidence that it would be unreasonably burdened by disclosure of the guideline or that a revision in this guideline would be necessary if it was disclosed. We therefore conclude that GOAP violated the Open Records Act in denying Mr. Loy'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.
John K. LoyDiane Fleming