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2000 Opinions

Date:   June 23, 2000
Prepared By:   Ronald G. Stowers
Phone:   (850) 488-7707
Suncom:   278-7707
Opinion No.:   00-05
Staff Contact:   Ronald G. Stowers
MEMORANDUM OPINION
TO:   Michael H. Olenick, Esquire
FROM: Ronald G. Stowers
SUBJECT: Legal Opinion--Florida Comprehensive Assessment Test Scores and Chapter 119, Florida Statutes
RE: Opinion you requested

QUESTIONS PRESENTED: Following receipt of a public records request, you have requested our opinion as to whether certain materials relating to the Florida Comprehensive Assessment Test (FCAT), including particular scores and answer sheets, are available or otherwise subject to public inspection pursuant to Chapter 119, Florida Statutes. They are not.

In a written request dated June 21, 2000, The Palm Beach Post asked for the following information pursuant to Chapter 119, Florida Statutes, relating to public records.

  1. The FCAT writing scores for those students participating in the Opportunity Scholarship [P]rogram for the 1999-2000 school year.

  2. The FCAT writing scores for those private schools participating in the Opportunity Scholarship [P]rogram for the 1999-2000 school year, aggregated by each school.

  3. The FCAT writing scores for those private schools participating in the Opportunity Scholarship [P]rogram for the 1999-2000 school year, aggregated by all schools.

  4. Five, randomly chosen samples of FCAT writing exam essays submitted by Palm Beach County students for each of the six possible whole number scores, for each of three grade levels taking the test (i.e. 90 total essays).

Therefore, the question arises, "May the information requested be provided?"

BACKGROUND: Section 229.0537, Florida Statutes, entitled, "The Opportunity Scholarship Program," was enacted by the 1999 Legislature. The program permits the parents of students who attend a public school found by the state to be failing the Student Assessment Program provided at Section 229.57, Florida Statutes, for 2 years in a 4-year period to enroll their children in a satisfactorily performing public school or an eligible private school.

Following the 1998-1999 assessment, students at two schools in the Escambia County School District were declared eligible for the program, when Spencer Bibbs Elementary School and A. A. Dixon Elementary School failed the state assessment program for the requisite 2 years. Beginning in the 1999-2000 school year, parents of 85 students at those two schools chose to enroll their children at satisfactorily performing (graded "C" or better) public schools. Additionally, parents of 52 students chose to enroll their children at one of five eligible private schools.

The private schools which participated in the program during the 1999-2000 school year were: the Montessori School; Saint John the Evangelist; Little Flower Catholic; Sacred Heart Cathedral School; and, Saint Michael School. Four students enrolled at the Montessori School. Ten students enrolled at Saint John. Eleven students enrolled at Little Flower. Nine students enrolled at Sacred Heart. And, eighteen students enrolled at Saint Michael. In no case were more than four students enrolled at the fourth grade level at any eligible private school.

The FCAT writing exam is administered at the fourth, eighth and tenth grade levels in all public schools1. No private school administers any part of the FCAT at any grade level. See, Section 229.57, Florida Statutes. Students who previously attended Bibbs or Dixon and attended other public schools during the 1999-2000 school year as part of the Opportunity Scholarship Program and who were required to take any part of the FCAT during that year, took the exam(s) at their new public school. Students who previously attended Bibbs or Dixon and attended private schools during the 1999-2000 school year as part of the Opportunity Scholarship Program and who were required to take any part of the FCAT during that year, took the exam(s) at a location arranged by the school district.

DISCUSSION:

Student Scores

In its first request, The Post asked for the following information.

  1. The FCAT writing scores for those students participating in the Opportunity Scholarship [P]rogram for the 1999-2000 school year.

The information requested is for all students who took advantage of the Opportunity Scholarship Program, whether the student attended a public or private school during the 1999-2000 school year. The FCAT writing scores are student records as defined at Section 228.093(2)(e), Florida Statutes. As such, the scores are confidential and exempt from the provisions of Chapter 119, Florida Statutes, and may not be released without written parental consent. See, Section 228.093(3)(d), Florida Statutes; F.S.U. v. Hatton, 672 So.2d 578 (Fla 1st DCA 1996)(Section 228.093(3)(d), Florida Statutes, specifically exempts student records from the provisions of Chapter 119, Florida Statutes, relating to public records).

The right of privacy set forth in Section 228.093(3)(d), Florida Statutes, attaches to the entire record which personally identifies one or more students and which is created, maintained, and used by public educational institutions. The redaction provision found at Section 119.07(2)(a), Florida Statutes, is inapplicable to student records; only the redaction provision found at Section 228.093(3)(a)2, Florida Statutes, applies. As such, a student record may only be redacted and released to a parent or guardian of a student or an eligible student when that student is one of the subjects of a record pertaining to more than one student. Hatton, at 579 and 580.


Individual School Scores

In its second request, The Post asked for the following information.

  1. The FCAT writing scores for those private schools participating in the Opportunity Scholarship [P]rogram for the 1999-2000 school year, aggregated by each school.

Private schools do not administer the FCAT. See, Section 229.57, Florida Statutes. Therefore, there are no (summary) scores for eligible private schools which participated in the Opportunity Scholarship Program in the 1999-2000 school year.

Students who previously attended Bibbs or Dixon and attended other public schools during the 1999-2000 school year as part of the Opportunity Scholarship Program and who were required to take any part of the FCAT during that year, took the exam(s) at their new public school. Students who previously attended Bibbs or Dixon and attended private schools during the 1999-2000 school year as part of the Opportunity Scholarship Program and who were required to take any part of the FCAT during that year, took the exam(s) at a location arranged by the school district. Although several students attending an eligible private school on an Opportunity Scholarship may have taken the FCAT, no summary scores are available. The Department does not create summaries if the information summarized concerns less than 10 students. The Department has developed this policy in order to protect student confidentiality and because to create summaries for such a small group is not statistically sound. As stated previously, no more than four students were enrolled at the fourth grade level at any participating eligible private school.

The information asked for by The Post in Request 2 is not maintained in summary manner. The Department provides existing summary data in response to a public records request, but has no obligation to create a summary in response to a public records request. See, Wootton v. Cook, 590 So.2d 1039 (Fla 1st DCA 1991)(Chapter 119, Florida Statutes, provides a right of access to inspect and copy an agency's existing public records, it does not mandate that an agency create new records in order to accommodate a request for information from the agency); Seigle v. Barry, 422 So.2d 63 (Fla 4th DCA 1982), review denied, 431 So.2d 988 (Fla. 1983)(a public records request may not require an agency to reorder the information or to furnish the information in a particular form, if the information is not maintained in that fashion).

Further, the student information requested may not be released in raw data form. See response to Request 1, above.


Aggregate School Scores

In its third request, The Post asked for the following information.

  1. The FCAT writing scores for those private schools participating in the Opportunity Scholarship [P]rogram for the 1999-2000 school year, aggregated by all schools.

Please see response to Request 2, Individual School Scores, above.


Essays

In its fourth request, The Post asked for the following information.

  1. Five, randomly chosen samples of FCAT writing exam essays submitted by Palm Beach County students for each of the six possible whole number scores, for each of three grade levels taking the test (i.e., 90 total essays).

The Post has asked for a random sampling of FCAT writing exam essays submitted by Palm Beach County students. These documents are student records subject to Section 228.093, Florida Statutes2. Additionally, as examination and assessment instruments, the essays are also subject to Section 232.248, Florida Statutes.

Section 232.248, Florida Statutes, is intended to protect the integrity of the state's testing programs. The FCAT writing exam essays requested by The Post are examination and assessment instruments subject to the provisions of Section 232.048, Florida Statutes. Hence, the essays are confidential and exempt from Chapter 119, Florida Statutes. Because the nature of this exemption from Chapter 119, Florida Statutes, is more specific than that provided at Section 228.093, Florida Statutes, neither a parent nor an eligible student may waive the confidentiality by written consent. Hatton at 580.

1The public records request is limited to information concerning the FCAT writing exam of those students who received an Opportunity Scholarship and who took the exam during the 1999-2000 school year. As such, the request relates only to students in grade four. The FCAT reading exam was administered to grade 4 students and the FCAT mathematics exam was administered to grade 5 students. No request was made for information concerning those exams.

2Please see response to Request 1, Student Scores, above

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