The Iowa Public Information Board
COMES NOW, Margaret E. Johnson, Executive Director for the Iowa Public Information Board (IPIB), and enters this Dismissal Order:
On July 14, 2020, Alex Yakobson filed formal complaint 20FC:0072, alleging that the Ames Community School District (District) violated Iowa Code chapter 22.
Mr. Yakobson alleged that the District failed to provide a copy of a public record he requested by email on or about June 30, 2020. His email requested
I am requesting a copy of the following records pursuant to Iowa Code Chapter 22, the public records law. I asking electronic record of security protocols. Prevent federal worker get Assessments and detailed results her own child. All information could be sent to my email.
On July 28, 2020, legal counsel for the District responded that any records Mr. Yakobson needs concerning his child’s educational records are not public records, but are available to him as a parent.
A formal response was provided by legal counsel on July 30, 2020. Counsel stated that test protocol records are confidential records pursuant to Iowa Code sections 22.7(3) (trade secrets) and 22.7(19) (examinations, when the release of such could interfere with the accomplishment of the objectives for which they are administered):
A test protocol is a copyrighted document that explains how to administer a particular test. For example, a student’s reading skills might be assessed on an ongoing basis using observational reading assessment software protected by copyright law. As one example using a particular software, a teacher may conduct one-to-one reading assessments using an iPad or other tool to record students’ interactions with texts from a variety of book sets. Once the student’s responses were recorded into the software, the software might generate a summary report to track the student’s progress. A common example of this arrangement is the mandated FAST Assessments taken by students in Iowa. Test protocols routinely require the test administrator to maintain test security to ensure validity of results. Test protocols would not allow public disclosure of the questions, the “key,” or the instructions to the test administrator over what observations to record.
Iowa Courts have already considered this question and confirmed that test protocols are not public records. See Gabrilson v. Flynn, 554 N.W.2d 267 (Iowa 1996) (holding copies of a performance test, both before and after the test is administered, are confidential per section 22.7(19)); see also Sysco Iowa, Inc. v. University of Iowa, 889 N.W.2d 235 (Iowa Ct. App. 2016)(holding portions of a contract specifying a party’s pricing, financing, discount, and delivery terms are trade secrets per section 550.2(4) and therefore confidential per section 22.7(3)). The court in Gabrilson found because the assessment was an examination, it is “confidential by their very nature.” Id. at 271. The Court continued: “it is a reasonable belief that an examination whose questions and answers are known by the students beforehand cannot adequately assess the students’ problem-solving abilities.” Id.
Mr. Yakobson replied that he does not accept that test protocols are confidential trade secrets.
He continues to have the ability to access his own child’s student records. Only the test protocols are withheld as confidential pursuant to Iowa Code section 22.7(19).
Iowa Code section 23.8 requires that a complaint be within the IPIB’s jurisdiction, appear legally sufficient, and have merit before the IPIB accepts a complaint. This complaint does not meet those requirements.
IT IS SO ORDERED: Formal complaint 20FC:0072 is dismissed as legally insufficient pursuant to Iowa Code section 23.8(2) and Iowa Administrative Rule 497-2.1(2)(b).
Pursuant to Iowa Administrative Rule 497-2.1(3), the IPIB may “delegate acceptance or dismissal of a complaint to the executive director, subject to review by the board.” The IPIB will review this Order on October 15, 2020. Pursuant to IPIB rule 497-2.1(4), the parties will be notified in writing of its decision.
By the IPIB Executive Director
Margaret E. Johnson
1. Mr. Yakobson has requested in numerous emails that IPIB staff determine which District employee provided this response. The response was submitted by legal counsel for the District, not by a District employee.
2. Because Iowa Code section 22.7(19) defines examination records as confidential records, it is not necessary to determine whether the records should also be considered trade secrets pursuant to Iowa Code section 22.7(3).
CERTIFICATE OF MAILING
This document was sent by electronic mail on the ___ day of October, 2020, to:
Katherine Beenken, legal counsel for the Ames Community School District