The Indiana Department of Education is refusing to release data used to determine school grades for 2015, arguing it falls under an exception in the public-records law that says state agencies don’t have to disclose information that is “deliberative” and used for decision-making.
But an attorney and advocate for open government says the department is wrong to conceal the information, which would show how much grades might have been affected by the new, more difficult version of the ISTEP exam that students first took last spring.
“I think they’re misconstruing the deliberative information exception,” said Stephen Key, executive director and general counsel for the Hoosier State Press Association. The exception is intended to protect records that are opinion or speculation, he said, and the school-grade information is neither.
As has been extensively reported, Indiana switched to new learning standards and a harder-to-pass version of ISTEP in 2014-15. Passing rates plummeted and many schools expected to see their grades drop. In response, the General Assembly rushed through legislation to “hold schools harmless” if their grades got worse. Each school would get the higher of the grade it earned in 2014 or 2015.
When the Department of Education released the grades last month, it reported only the grades that schools were awarded, not the grades they actually earned. I emailed the department’s press office to ask for copies of the grades that schools would have received based on their 2015 test scores. As an alternative, I said, the department could provide the scores that schools earned on a 4-point scale, the basis for calculating the grades. These scores were made public in 2013 and 2014.
At the suggestion of the department’s press secretary, I filed a request for the data under the Indiana Access to Public Records Act. Ten days later, Leslie-Ann James of the department’s legal affairs office denied the request, saying the records fall under the exception in section 5-14-3-4(b)(6) of the public records law and therefore “I am not able to provide you with the information you requested.”
In fact the (b)(6) exception describes public records that may, at the discretion of a state agency, be withheld from the public. In other words, the department could release the records but chose not to.
Why? Kelly Bauder, a staff attorney with the department, said by email that, if earned grades were made public, “the schools will not be held harmless as the legislature intended.” She also cited court decisions upholding the exception for deliberative records on the grounds that making such records public would inhibit “frank discussion” of policy making and harm the quality of agency decisions.
But here’s the thing. There was no discussion required in calculating the grades. All the department did was compare the earned grades in 2014 and 2015 and pick the one that was higher. There was no need for frank discussion, and no policy was being made. And if the General Assembly wanted to hold schools harmless from the disclosure of public records, it could have included that in the legislation.
More importantly, the argument that the records can legally be withheld is dubious. Here is how section (b)(6) describes records that can be kept secret:
Records that are intra-agency or interagency advisory or deliberative material, including material developed by a private contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature and that are communicated for the purpose of decision making.
Strip away the nonessential clauses and the actual language is this: “records that are expressions of opinion or are of a speculative nature and that are communicated for the purpose of decision making.” In other words, if the records are not opinion or speculative, they must be made public.
As Key, the Hoosier State Press Association director, pointed out, I asked for data. And “there is nothing that’s opinion or speculative about that.”