The Trade Secrets Blog

Following Trade Secrets Litigation

Are School Tests Public Records?

Interesting case out of Ohio–The Columbus Dispatch is reporting that there is a fight over whether or not previously administered tests should be considered public records, and thus accessible to enterprising students who want to make a public records request to see the information prior to taking a test. The school district has taken the position that the tests are “trade secrets” and on that basis cannot be construed as public records. It seems that the Courts are agreeing with them.

For what it’s worth, I can’t imagine how the tests can be construed as “trade secrets” without changing the whole trade secrets system. Hundreds of students have seen the tests, none of whom were under any degree of confidentiality–by definition, the tests can no longer be considered “secret” after individuals under no confidentiality obligations have seen them.

The attorney for the school district said: “If this test is found to be a public record and we have to disseminate it, its utility is now zero,” he said. “Every student would have an economic incentive to try to get copies of the test beforehand.” Specious argument at best. So what if students get the tests–I had some teachers give me their previous tests as study materials and as an indication of what to expect on a future test. Just because a student gets a test and reviews the information, doesn’t mean that he will memorize the information, and it doesn’t mean that the information will appear on a future test.

Seems to me that this is a bunch of teachers who don’t feel like making a new test every year and instead want to rely on older versions–if the tests are public records, they won’t be able to do that. It hardly makes sense to turn the trade secrets statutes on their head in order to save teachers from more work though.

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April 10, 2009 - Posted by | Intellectual Property, Trade Secrets | , , ,

1 Comment »

  1. Yes, the trade secret argument is bogus. The plaintive also asked for the technical document used to design the tests. All responsible standardized test companies provide this technical document. Defendent will not provide the document, suggesting that the document does not even exist.

    A large pnsortion of the answers were provided on the internet–and contrary to what the defendent’s lawyer said the answers were not password protected. In fact the internet pages said that teachers were encouraged to teach the information. As the expert witness said, the reason for that was because improving test scores over time would make the administration look good (the superintendent of the schools is evaluated on improved performance.)

    The school district took the 66 pages of answers off the internet the day after the five justices each asked “Is this on the internet?” “Is this information on the web?” “Can a person google this information?” Yes, Yes, Yes,…. Only one justice pulled a John McCain and said he didn’t use the internet.

    The tests were loaded with errors, perhaps the most embarassing part of the issue. Teachers were so appalled at the lack of quality of the tests that they signed a petition requesting the tests be released to bring about some quality control. The teachers are not opposed to tests, just poor quality tests. One physics question, for example, asked “If a block weighs(sic) 2 kilograms…”. If you remember your physics, weight is a force and Newton’s law F=ma means weight equals a mass times the force of gravity. Hence a mass can only be measured in kilograms–not a weight.

    The district is probably most worried about having to change all the students’ grades for three years they have been using the tests since 25% of their grade was determined by the faulty tests. (Actually they cannot defend the 25% figure either since they don’t actually have a mathematical formula employed to determine the numerical calculation.)

    What a mess

    Comment by Michael Scott | April 19, 2009 | Reply


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