State ex rel. Rea v. Ohio Dept. of Edn.

• Decision Date: 29 April 1998
• Docket Number: No. 96-1997,96-1997
• Citation: 692 N.E.2d 596,81 Ohio St.3d 527
• Parties: , 124 Ed. Law Rep. 1048 The STATE ex rel. REA et al. v. OHIO DEPARTMENT OF EDUCATION et al.
• Court: Ohio Supreme Court

Page 527

81 Ohio St.3d 527

692 N.E.2d 596, 124 Ed. Law Rep. 1048

The STATE ex rel. REA et al. v. OHIO DEPARTMENT OF EDUCATION et al.

No. 96-1997.

Supreme Court of Ohio.

Submitted Nov. 4, 1997.

Decided April 29, 1998.

Melnick & Melnick, and Robert R. Melnick, Youngstown, for relators.

Betty D. Montgomery, Attorney General, and Roger F. Carroll, Assistant Attorney General, for respondent Ohio Department of Education.

Betty D. Montgomery, Attorney General, Lawrence J. Miltner and Lauren M. Ross, Assistant Attorneys General; Porter, Wright, Morris & Arthur, and Kathleen M. Trafford, Columbus, for respondent Ohio State University.

FRANCIS E. SWEENEY, Sr., Justice.

This court is presented with the issue of whether previously administered examinations of the OPT and OVCA are public records subject to disclosure under Ohio's open records law, R.C. 149.43. Since we find that both the OPT and a portion of the OVCA, specifically the OCAP, are public records, we grant relators a limited writ of mandamus and order the Ohio Department of Education and Ohio State University to release the requested materials.

RECORDS SOUGHT

Specifically, the relators seek access to the unmarked assessment booklets, unmarked test instructions and questions, and scoring mechanisms of the Twelfth Grade OPT and OVCA relating to previously administered examinations. They do not seek prospective examinations yet to be administered. Nor do they request that any personal information or individual responses regarding the examinations be made available through this action.

The Twelfth Grade OPT is one of several statewide proficiency tests established by the State Board of Education pursuant to R.C. 3301.0710. ² The test is administered to ensure that students possess the requisite knowledge suited to that particular grade in the areas of reading, writing, mathematics, science, and citizenship. The OPT is owned by the Ohio Department of Education. Any particular proficiency test contains questions from a question bank that have been used in previous tests, as well as new questions from the bank that have not previously appeared. Each new test also contains five or six new questions that are field tested for use in future test administrations. Thus, no two tests are exactly alike.

The OVCA is also a statewide test that was developed to accelerate the modernization of vocational education in response to Am.Sub.S.B. No. 140, effective October 1989 (143 Ohio Laws, Part I, 718), and the Carl D. Perkins Vocational and Applied Technology Education Act Amendments of 1990 (Section 2301 et seq., Title 20, U.S.Code). The OVCA examination is divided into two portions, the Work Keys assessment, and the OCAP. The OCAP is designed to measure a student's occupational skills in one of approximately forty vocations, as well as employability skills generic to all occupational areas. It is only one of two components that make up the OVCA. The other component of the test, titled "Work Keys," focuses on four academic skills necessary to operate in the workplace: Applied Mathematics, Locating Information, Reading for Information, and Applied Technology. The questions in each vocational test are drawn from a question bank containing approximately fourteen thousand questions. OSU creates a new test form for each administration of the OCAP. The OCAP portion of the OVCA is developed and owned by OSU, whereas the Work Keys component is owned by American College Testing ("ACT"), a private nonprofit corporation. Unlike the OPT, students are not required to take the OVCA.

DISCLOSURE UNDER THE PUBLIC RECORDS ACT

In order for documents or materials to be subject to disclosure under the Public Records Act, they must fall within the statutory definition of a "public record." R.C. 149.011(G) defines "records" as "any document, device, or item, regardless of physical form or characteristic, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office."

Pursuant to R.C. 149.43, a public record is subject to release, unless it falls within one of the Act's exceptions. R.C. 149.43(A)(1) defines a "public record" as "any record that is kept by any public office, including, but not limited to, state, county, city, village, township, and school district units." The definition excludes certain records from public inspection, including medical, adoption, probation, and parole records, and "[r]ecords the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(o) (now 149.43[A][p] ).

In order to foster open government, it is well settled that the Public Records Act is to be liberally construed. State ex rel. The Miami Student v. Miami Univ. (1997), 79 Ohio St.3d 168, 170, 680 N.E.2d 956, 958. Furthermore, the custodian of the records bears the burden of establishing that the public records are excepted from disclosure. State ex rel. James v. Ohio State Univ. (1994), 70 Ohio St.3d 168, 169, 637 N.E.2d 911, 912. Any doubt is to be resolved in favor of providing access to such records. State ex rel. The Warren Newspapers, Inc. v. Hutson (1994), 70 Ohio St.3d 619, 621, 640 N.E.2d 174, 177. In reviewing relators' request, we find that the documents sought are public records.

The OPT examinations clearly fall under the definition of a public record. By statute, ODE is required to develop the proficiency tests and ODE admits that it owns the OPT. Although ACT helps ODE develop the OPT, ODE acquires sole ownership of the OPT pursuant to contract. Furthermore, once the examination has been completed and scored, the OPT test results are maintained by ODE. Because ODE develops, owns, and maintains the OPT materials, they are considered public records under R.C. 149.43.

Likewise, the OCAP is considered a public record. Those records controlled by OSU meet the statutory definition of a public record, since a state university is considered a "public office" for purposes of the Public Records Act. See Halaby v. Bd. of Directors of Univ. of Cincinnati (1954), 162 Ohio St. 290, 55 O.O. 171, 123 N.E.2d 3. R.C. 149.43 has been construed broadly to include "anything a public office utilizes to carry out its duties and responsibilities." State ex rel. Jacobs v. Prudoff (1986), 30 Ohio App.3d 89, 30 OBR 187, 506 N.E.2d 927, paragraph one of the syllabus. The OCAP portion of the OVCA assessment is developed and owned by OSU, and utilized to evaluate student's vocational skills pursuant to the law. Thus, it is a public record.

However, we do not consider the Work Keys portion of the OVCA, owned and developed by ACT, to be a public record. ³ This court has interpreted the Public Records Act to include records under the control of a public office even if those records are not within its custody. State ex rel. Plain Dealer Publishing Co. v. Cleveland (1996), 75 Ohio St.3d 31, 661 N.E.2d 187. However, in order for a private entity to be subject to R.C. 149.43, (1) it must prepare the records in order to carry out a public office's responsibilities, (2) the public office is able to monitor the private entity's performance, and (3) the public office has access to the records for this purpose. State ex rel. Mazzaro v. Ferguson (1990), 49 Ohio St.3d 37, 550 N.E.2d 464. Although ACT developed the Work Keys assessment in conjunction with ODE in order to carry out ODE's responsibilities, the evidence fails to show that the second and third prongs of the Mazzaro test are satisfied. ACT is solely responsible for the development and content of Work Keys. Neither ODE nor OSU oversees this development, and there is no evidence that they either receive or otherwise have access to the Work Keys assessments for such purposes. Therefore, the Work Keys portion of the OVCA is not a public record.

Although the OPT and the OCAP portion of the OVCA are public records, we must next decide whether they fall within one of the specific exceptions to the Public Records Act. ODE asserts that the OPT is excluded from disclosure under R.C. 149.43 because its release would violate state law. Specifically, ODE argues that R.C. 3319.151 and Ohio Adm.Code 3301-13-05 prevent the release of these records. R.C. 3319.151, which prohibits assisting a pupil in cheating on a proficiency test, states that "no person shall reveal to any student any specific question that the person knows is part of a test to be administered * * * or in any other way assist a pupil to cheat on such a test." Likewise, Ohio Adm.Code 3301-13-05 establishes test security provisions for the various proficiency tests. ODE contends that the release of test questions would, in effect, assist pupils in cheating, since numerous questions are continually reused on subsequent proficiency exams. We find ODE's argument unpersuasive. ODE maintains that it is necessary to reuse such questions so that each proficiency test is comparable to past tests. However, ODE admits that no two tests are alike. The fact that ODE chooses to reuse past test questions in no way constitutes "cheating" as envisioned under R.C. 3319.151 and Ohio Adm.Code 3301-13-05.

The recent passage of Am.Sub.S.B. No. 55 supports the argument that the release of past tests does not violate state law. The statute requires ODE, beginning in 1999, to make public proficiency tests the year after they have been administered. Given the magnitude and significance attributed to these tests, it seems obvious that the General Assembly was concerned with the public's frustration in gaining access to them. As education of its citizenry is one of the most important functions of the state, the legislature has made it clear its intent that parents, students, and citizens have access to these tests in order to foster scrutiny and comment on them free from restraint. ODE has failed to demonstrate that disclosure of...