The Indiana Department of Education still refuses to disclose data used to determine A-F grades for schools in 2014-15, despite receiving a letter from Indiana Public Access Counselor Luke Britt that says the data should be made public.
I’ve requested the information twice, arguing it should be disclosed under the Access to Public Records Act. And the department has rejected my request twice, insisting the data falls under an exception for records that are speculative or expressions of opinion and are used for decision-making.
But I’m not asking for anything deliberative. I’m asking for numbers – the scores on a 4-point scale that were used to establish what grades schools would receive.
Remember that Indiana switched to new learning standards and a tougher ISTEP exam in 2014-15. Passing rates dropped dramatically. As a result, the General Assembly passed “hold harmless” legislation that said no school would get a lower grade than it received the previous year.
When the Department released grades in January, it didn’t indicate which schools were being held harmless and which actually earned the grades they received in 2014-15. And unlike in previous years, it didn’t include the scores on a 4-point scale that schools earned.
After the department turned down my first request for the data, I filed a complaint with the Office of the Public Access Counselor, the state agency tasked with advising government officials on the public records and public meetings laws. Britt initially sided with the department in an advisory opinion to my complaint, labeled 16-FC-34.
But on the advice of Steve Key, executive director of the Hoosier State Press Association, I provided the counselor with additional information clarifying that I was seeking data, not deliberative material. In a June 2 follow-up letter, copied to the Department of Education, Britt said the data should be released:
Release of data and rankings by itself should not affect the decision making process. The deliberative materials exemption is broad, but not so broad that it encompasses raw data. Any kind of data or ranking, lacking context, exists in a vacuum and should not impair the decision making process. You do not seek any accompanying summation or narration along with the grades, just the rankings themselves. As a caveat to Formal Complaint 16-FC-34, it is my opinion that the A-F accountability grades alone are not information intended by the legislature (or subsequent judicial holdings) to be considered deliberative.
Citing Britt’s letter, I again requested the data. The department’s response, from DOE attorney Kelly M. Bauder, again insisted that the data were “deliberative” material – which is defined in the public records law as records that are “expressions or opinion or are of a speculative nature.”
Bauder also argued that, if the grades that schools actually earned in 2014-15 were made public, schools wouldn’t be “held harmless” as the legislature intended. But the grades that schools received under the law are the grades they received, and nothing can take that away from them. If lawmakers wanted to save schools from having people know what grades they actually earned, they could have written that provision into the legislation. They didn’t.
Britt said the data should be made public, but his opinions don’t have the force of law. They merely provide guidance that agencies should follow. Only a judge, responding to a lawsuit, could order the records to be disclosed. So that’s where things stand.
It’s important to note, however, that the law says deliberative material may be kept secret at the discretion of the public agency. So even if Bauder were correct that the numbers I requested amount to opinions or speculation, the department could release them. It’s simply choosing not to.
Superintendent of Public Instruction Glenda Ritz, who heads the Department of Education, has presented herself as an advocate of transparent government. She sued the State Board of Education when its members conducted business outside of public meetings. Her staff readily disclosed email records that got her predecessor as superintendent, Tony Bennett, in a whole world of trouble.
But in this case, the department’s actions fly in the face of the public records law, which declares that “all persons are entitled to full and complete information regarding the affairs of government.”
And that is very, very disappointing.