From: Freeman, Robert (DOS)
Sent: Monday, June 30, 2008 2:22 PM
Subject: RE: FOIL Assistance
Hi again - -
The exception at issue, §87(2)(h) of FOIL, authorizes an agency to withhold records “or portions
thereof” that “are examination questions or answers which are requested prior to the final administration of such questions.”
Should you appeal the denial, it is suggested that several points be offered. First, if the basis for the denial was as you described it, that prior exams are used in creating new exams, it is likely that the Department skirted its obligation to focus particular exam questions and answers. Although prior exams might be used in developing new ones, there is no indication in the response that particular questions will be used in the future. Second, and this relates to the first, I would conjecture (surmise or guess) that analyses and validity studies are conducted with respect to questions used on exams. If that is so, it is likely that it is often known which questions will be used in the future or eliminated. A question that is eliminated would, in my view, be accessible under FOIL, even if it is used, perhaps as a means of recognizing a problem or deficiency. And third, the Court of Appeals, the state’s highest court, has rankled against the “blanket denial” of access in which an agency withholds the entirety of the content of the records sought categorically. Rather, the Court has directed that agencies must review the records, page by page and line by line, to determine which portions, if any, may justifiably be withheld. Therefore, in the context of your request, I believe that the Department is required to review the exams in their entirety to attempt to determine which questions are likely to be included in future exams.
I look forward to seeing your request and the Department’s response.
Robert J. Freeman
Committee on Open Government
Department of State
One Commerce Plaza
99 Washington Avenue
Albany, NY 12231