March 9, 1998

Hon. Ronald Canestrari
Member of the Assembly
Legislative Office Building - Room 731
Albany, NY 12248

Dear Assemblyman Canestrari:

I have received your letter of March 5, as well as the correspondence
attached to it.

The matter involves the efforts of a constituent to obtain the questions
and answer keys pertaining to civil service promotional examinations given in
1996 and 1997. In his appeal following an initial denial of a request, he
indicated that a high percentage of questions in a different civil service exam
he took were "repeats from previous exams", and he added that "these
questions and the answer keys were made available in a 4-hour review session
to all interested test-takers who signed up for the review."

In this regard, although the Freedom of Information Law is based on
a presumption of access, relevant under the circumstances is §87(2)(h), which
enables agencies to withhold records that "are examination questions or
answers which are requested prior to the final administration of such
questions". Therefore, if there is an intent or possibility that the questions
used in an examination will be given in the future, I believe that the questions,
as well as the answers, could be withheld. Disclosure of the questions or the
answers in that circumstance would diminish or perhaps nullify the utility or
efficacy of the exam.

In an effort to obtain additional detail concerning your constituent's
inquiry, I contacted Patricia A. Hite, Acting Counsel at the Department of
Civil Service and its Records Access Appeals Officer. She informed me that
the reviews of the examinations at issue involved only whether the
examinations were properly scored. She emphasized that the reviews did not
include the disclosure of any questions. Ms. Hite also indicated that the
questions on the examination or variations of those questions will likely be
used in the future. Based on the information that she offered, it appears that
the denial of the request was consistent with law.

I hope that I have been of assistance. If I can be of further assistance,
please feel free to contact me.


Robert J. Freeman
Executive Director