FOI Advisory Council Opinion AO-26-04

December 22 , 2004

Michael T. Crehan
Vienna, Virginia 22182

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