April 19, 1996

In re: Faurest Coogle/Department of Education


This matter comes to the Attorney General on appeal from the Department of Education's partial denial of Mr. Faurest Coogle's open records request to inspect certain records for the KIRIS tests given in the years of 1993, 1994, 1995.

By letter dated March 12, 1996, Mr. Coogle requested copies of the following records, relevant to this appeal:

The results, separated into the two categories required by regulation (common questions and matrix questions), by individual school, of the open response questions.

By letter dated March 13, 1996, Mr. C. Scott Trimble, Department of Education, denied access to the requested records, stating:

[I]n regard to your request for performance standards data for both the common and matrix sampled items, the open response data for KIRIS Accountability Cycle II is reported on a combined scale with common and matrix items combined into one performance level for each subject area (i.e. reading, math, etc.). Therefore, Accountability Cycle II data cannot be provided at the common and matrix item levels.

On March 20, 1996, Mr. Coogle submitted a letter of appeal to this office asking us to determine whether the Department of Education's denial of his request was consistent with the Open Records Act. For the reasons set forth below, we conclude that the Department's response was consistent with the Act.

Following receipt of the letter of appeal and as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Kevin M. Noland, Associate Commissioner, Office of Legal Services, Department of Education provided this office with a response to the issue raised in this appeal. In his response, Mr. Noland states:

The request for school scores (or distribution of scores) on the common and matrix sampled items cannot be honored because with the advice received from a number of different studies, including that published by the Office of Education Accountability, and the Department's decision to implement such advice to reports generated for Accountability Cycle II, the two kinds of items are placed on a single scale and there are not separate scores or distributions for common and matrix sampled items. We are aware of the requirements of the regulation and its data definitions that apply to Accountability Cycle II and are in the process of proposing appropriate language to amend the necessary regulations so as to be in compliance with the best technical advice we have been able to obtain in the continuation of the school accountability system.

The responses of the Department state that the school scoring of the common and matrix questions is reported on a single scale with the common and matrix items joined into one performance level for each subject area. The Department states it does not maintain records which set forth the common and matrix item levels separately, as requested by Mr. Coogle. A public agency cannot afford a requester access to records which do not exist or which it does not have in its possession or custody. 93-ORD-51. Moreover, a public agency is not required to create a document that does not already exist in order to satisfy a request. 95-ORD-82. To the extent the Department does not maintain records containing the information in the format Mr. Coogle requests, its response does not violate the Open Records Act.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.






Distributed to:

Faurest Coogle

220 Plantation Lane

Frankfort, Kentucky 40601

C. Scott Trimble

Kentucky Department of Education

Capital Plaza Tower

500 Mero Street

Frankfort, Kentucky 40601