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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-26-04
December
22 , 2004
Michael
T. Crehan
Vienna, Virginia
The staff of the Freedom of Information Advisory Council
is authorized to issue advisory opinions. The ensuing staff
advisory opinion is based solely upon the information presented
in your letter of November 18, 2004.
Dear
Mr. Crehan:
You
have asked for an advisory opinion concerning the following
two questions: (1) whether the Virginia Board of Bar Examiners
(the Board) must disclose your score on the Multistate Bar
Examination (MBE) to you, and (2) whether the Board must disclose
to you a list of bar examination score results for all February
2004 applicants from which all personally identifying information
has been redacted. As background information, each state has
its own bar examination used to license attorneys to practice
law. The Virginia Bar Examination is comprised of (1) an essay
section on Virginia law, and (2) the Multistate Bar Examination,
which is a multiple choice section used by many states in
determining suitability to practice law. Some states allow
the transfer of the MBE score from a prior exam in a different
state, without requiring an applicant to re-take the MBE.
Whether this transfer is allowed often depends upon how well
the applicant scored on the MBE.
You
indicate that you first requested that the Board provide you
with your score on the MBE. The Board denied this request,
citing its authority under § 54.1-108 of the Code of
Virginia and on the basis of a Board determination "that
it is not appropriate to make [MBE] scores available to applicants
who have passed the examination." The Board included
a form to be used if you wanted to transfer your MBE score
to another jurisdiction, or if you needed to know whether
your MBE score was high enough to waive into another jurisdiction.
You subsequently requested a list of aggregated February 2004
applicants' MBE and corresponding Virginia essay scaled scores
that did not identify individual names or other personally
identifiable information. This request was also denied by
the Board pursuant to § 54.1-108(2). You further requested
documentation of the Board's policy regarding the release
of scores. The Board replied that they could not provide this
information within the five working day limit of FOIA because
the requested documents "may be more than 20 years old
and/or may no longer exist."
Subdivision
2 of § 54.1-108 provides an exception to FOIA's mandatory
disclosure requirements for the scoring records maintained
by any board or by the Departments on individual licensees
or applicants. Section 54.1-108 further provides that this
material may be made available during normal working hours
for copying by the subject individual at his expense at the
office of the Department or board which possesses the material.
The plain language of this section indicates that the Board
is allowed but not required to provide an applicant with records
of his or her own examination results. Whether the results
sought are those from the Virginia essay portion of the examination
or the MBE scores, or both, is irrelevant. Thus, the answer
to your first question is that the Board has the discretion
to choose whether or not to release your scores to you. It
appears that the Board has chosen to exercise that discretion
by refusing to release your scores. The Board has not violated
the provisions of FOIA by that exercise. You indicate that
you feel that the Board has abused its discretion. The question
of whether the Board has abused its discretion is beyond the
statutory authority of this office, as "abuse of discretion"
is a legal standard outside the scope of FOIA.
In regard
to your second question concerning the release of scores of
other applicants, the exemption from release of scoring records
provided by § 54.1-108 makes no reference to personally
identifiable information. Whether such information is redacted
from a list does not affect the legal discretion given to
the Board. You argue that "a set of scores with no names
is not the 'scores of individual licensees' because it would
be impossible to tell what any individual scored." Section
54.1-3922 requires the Board to do, or cause to be done,
all things it considers necessary, convenient or expedient
in connection with the preparation, conduct and grading of
examinations, in determining the qualifications of applicants,
in determining requirements for taking and passing examinations,
and in granting such certificates to practice law as may be
authorized by the Supreme Court. The Board may promulgate
rules and regulations to aid in the exercise of its authority
and in the discharge of its duties. Considering this broad
grant of authority coupled with the exemption provided by
§ 54.1-108, it is the opinion of this office that the
Board retains the discretion whether or not to release scoring
records regardless of whether those records are in an aggregated
form or contain personally identifiable information.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
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