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State Board of Education required to release exam questions

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    NMU         ARIZONA         Freedom of Information         Dec 12, 2001    

State Board of Education required to release exam questions

  • An appeals court recognized a public interest in disclosure when it required the state board to release most of the questions of a hotly contested achievement exam which may be used to deny some high school students a diploma.

The Arizona Court of Appeals affirmed on Nov. 27 a lower state court decision that The Arizona Republic has a right to inspect and photocopy a major portion of a controversial achievement test but not questions that would be used in later tests.

The three-judge panel unanimously upheld the lower court’s ruling that the public interest in the release of most of the test questions outweighs the state’s cost and inconvenience in providing the records.

The significance of this decision is that “it recognizes the importance of weighing the public interest of disclosure against the best interest of the state,” which was not previously addressed in case law, said David Bodney, attorney for Phoenix Newspapers Inc.

The panel also affirmed the lower court decision not to award attorney’s fees since the court found that the state had not acted so improperly as to warrant the fees.

In 1999, Arizona state legislators required the State Board of Education to develop a standardized competency test in the areas of reading, writing and mathematics. The statute required the board to establish passing scores for the tests and required students to attain a passing score in order to graduate.

State education officials administered the first Arizona Instrument to Measure Standards, known as Form A, that same year. The results, released in November 1999, found that 92 percent of the students failed at least one of the three basic parts of the exam.

According to the statute, Arizona high school students would have six opportunities between their sophomore and senior years to achieve passing scores.

After the state released the scores, the newspaper asked to inspect and copy the test, citing state law allowing access to public documents. State officials would not permit copying, allowing only limited viewing with no note-taking. They also required those viewing the tests to sign a nondisclosure agreement.

The newspaper sued in late 1999 under the Arizona Public Records Law, arguing for the state to permit the newspaper to inspect and copy Form A.

State officials argued that disclosure of Form A would render their efforts to devise future tests worthless.

A state superior court held there were two types of questions: “anchor questions,” which had the possibility of being repeated in the future, and other questions. The court ruled that the state was not required to release the anchor questions, but that all other questions must be available for public inspection. More than one of every five test questions is an anchor question.

As a result of the superior court decision, the state voluntarily released 63 out of 165 questions and published them on the Arizona Department of Education’s Web site. The appellate court decision promises the release of more questions.

“As a result of [the appellate] opinion, we expect the state to comply with the opinion and produce all but the anchor questions . . . at least another 35 percent of the test,” Bodney said.

(Phoenix Newspapers, Inc., v. Keegan: Media counsel: David Bodney, Phoenix, Steptoe and Johnson) MM

© 2001 The Reporters Committee for Freedom of the Press

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