Is all information about public employment tests exempt?

Answer

Under California’s Public Records Act, “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics” is a public record and must be disclosed to the public upon request unless a provision of the PRA exempts it from disclosure. Gov’t Code Section 6252-6253.

As you mention, though, one of the exemptions in the PRA covers “[t]est questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination, except as provided for in [Education Code provisions governing standardized testing in public schools].”Gov’t Code Section 6254(g).

There is very little authority explaining how this exemption would be applied or what exactly the scope of “other examination data used to administer [exams]” might be.

One of the only pieces of relevant authority is a 1981 opinion in which the California Attorney General wrote that an elementary or high school district must disclose a copy of textbooks or other written materials under the PRA, “with the exception of test questions, scoring keys and other examination data.”64 Ops. Cal. Atty. Gen. 186 (March 3, 1981).

Note that unless another provision of law prohibits disclosure, exemptions like the one for test questions are not mandatory, and agencies can exercise their discretion to release records that are exempt.Gov’t Code Section 6254 (“Nothing in this section prevents any agency from opening its records concerning the administration of the agency to public inspection, unless disclosure is otherwise prohibited by law.”).

In other words, even if the PRA did not require BART to disclose all of the records you seek, it might choose to do so anyway.

It is not clear that the records you seek would necessarily be covered by the test question exemption.For example, records reflecting your score, who wrote exam questions, who graded the exam, and who was the “subject matter expert” for the exam would not necessarily constitute test questions, scoring keys, and other examination data used to administer the examination.

It might be more difficult to identify a record that reflects the value for each question without disclosing the questions themselves. Finally, as a BART employee, it is also possible that you have rights to access relevant information pursuant to some kind of labor agreement.

In any event, you might consider requesting the records under the PRA, perhaps explaining why some or all of the categories of information you seek should be located in records that are not exempt under the test question exemption.

You may want to remind the agency that if both exempt and non-exempt information is contained in a particular requested record, the agency is supposed to redact the exempt material and produce the rest of the document.Gov’t Code Section 6253(a).

You can find information about making a request under the PRA, including a sample request letter, on the First Amendment Coalition web site at http://firstamendmentcoalition.org/category/resources/access-to-records/.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.