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.”
School Matters 
I agree with the iDOE here, what purpose would it serve?
It would serve the purpose of complying with the principle that public records should be available to the public unless there’s a compelling and legitimate reason to not disclose them. That’s plenty for me.
Grandpa Steve: Why so much interest and focus on school grades and procedures in the iSTEP world of public education? If MCCSC gets an overall “A”, then they celebrate like hell. Yet, behind the scenes, they complain about the grading system when scores are low. Can’t have it both ways. When are you going to do a SCHOOL MATTERS story on dumbing down substitute teaching at MCCSC and RBB? Let’s see, anyone can be the fill-in teacher, a position that has tremendous responsibility and opportunity, by earning 24 college hours. That’s saying that an IU freshman brings enough knowledge and wisdom into the classroom to suffice. (You may or may not know, that from K-12 grades a child will spend almost a year with a substitute teacher.) Are you seeing the significance of having qualified and trained individuals serving the role of guest educators, a lofty name when one sees today’s MCCSC/RBB ‘low-ball’ qualifications? Had I not advocated for better pay for substitute teachers years back, the MCCSC would still be paying $60/day. (“Why should we pay you/subs more when we can get IU students for free?” DeMuth told me in a face-to-face meeting during her first month with MCCSC.) I continue to advocate (silently for the most part sans occasional direct mail to school board members and administrators) for “professionalizing substitute teachers” e.g. training, compensation, and recognition (per the NEA model) and will no doubt take another shot at gaining a seat on the school board. Significant enough to cover in your blog? I would hope so. Stop by sometime. Happy to talk about all things substitute teacher or Prospect Hill. Best, David
“Mr. David” WierhakeNO SUB LEFT BEHIND 2016my-mccsc.org
Date: Mon, 15 Feb 2016 18:45:37 +0000 To: nowchangethis@live.com
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