68 Op. Att'y Gen. 48 (1979)
 
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Wisconsin Attorney General Opinions

Opinion # OAG 17-79

21 February 1979.

Licenses And Permits; Pharmacy;

The Pharmacy Examining Board may utilize the
services of a national examining board in
passing on applicants for licensure, but the
Board must make the final decision as to
licensure.

The conditions of post-examination review
with applicants discussed.

KARL W. MARQUARDT, R.PH., J.D.,
Executive Secretary Pharmacy Examining Board
Department of Regulation And Licensing

You state that the Pharmacy Examining Board
(Board) has contracted with the National
Association of Boards of Pharmacy (NABP) for
the purpose of using an examination prepared
by NABP and a national testing service in
testing applicants for licensure before the
Board.

You also state that the scoring answer key is
not available to the Board, precluding the
Board from conducting post-examination
reviews with licensure applicants, as
was the practice prior to using
the national examination.

The scoring answer key is not available to
the Board for reasons of maintaining
examination security and confidentiality
of its contents.

You ask for a legal opinion regarding the
right of the Board and professional testing
service to maintain confidentiality of the
examination's content versus the right of
an applicant to review his examination.

Your question presumes that the Pharmacy
Board has not unlawfully delegated its
authority to examine licensure
applicants by use of a national
examination as the testing instrument.

Although I conclude that the Board may use
a national examination, the importance
of the issue requires discussion.

The statutory provisions governing the Board
are broad enough so as to allow the Board to
adopt a national examination for its testing
instrument.

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This is so despite the fact that other
examining boards, such as the Optometry
Examining Board, see Section 449.04, Stats.,
are specifically authorized by statute to use
examinations prepared by national boards.

Section 15.40(2)(C), Stats., provides that
examining boards shall:

   Be the supervising authority . . . of
   all personnel . . engaged in the review,
   investigation or handling of information
   regarding . . examination questions and
   answers . . . .

   Use of a national examination is permissible
   so long as the Board exercises this
   supervisory function.

Section 15.40(2)(C), Stats., cannot
reasonably be read to require that the
Board's personnel be the only people involved
in constructing or grading the examination.

The Pharmacy Examining Board, however, must
exercise final authority over who shall be
deemed to have passed the examination.

Section 450.02(3), Stats., as amended by
Chapter 29, Section 1544, Laws of 1977,
states in part as follows:

Applicants filing proofs, satisfactory
to the examining board, of
qualifications and training as outlined
in Subsection (2) shall, after having
passed the examination by the examining
board and upon payment of the fee, be
granted certificates as registered
pharmacists.

The phrase, "after having passed the
examination by the examining board,"
does not require the Board to construct
or grade the examination.

The legal definition of the word "by"
includes "through the means, act,
agency or instrumentality of."

Black's Law Dictionary 251
(rev. 4th ed. 1968);
5a Words and Phrases 796.

See also Webster's
Third International Dictionary 306 (1961).

Therefore, the examination contracted for
by the Board is its examination
within the statutory terms.

My opinion to Senator Berger, dated
September 7, 1976, a copy of which is
enclosed, concluded that the Examining Board
of Architects, Professional Engineers,
Designers and Land Surveyors could utilize
the examination of the National Council of
Architectural Registration Boards as its
testing instrument in order to secure the
advantages of reciprocal licensure.

That opinion stated at p. 3:

The Wisconsin Board may draw on any
legitimate sources it chooses in
developing a proper examination.

It may go so far as to adopt in total an
examination developed by a private
organization, so long as the subject
matter of the examination fulfills the
Wisconsin statutory requirements.

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Unquestionably, the Board cannot delegate
its authority to make the final decision
as to who is suitable for licensure as a
pharmacist.

The Legislature has reposed that power in the
Board and has not granted it power to
subdelegate this ultimate responsibility.

Although the Board must make the final
decision and cannot be a rubber stamp of a
national examining board, nevertheless it is
free to use such agencies to perform the
mechanical acts of examining the applicants.

See

Aylward v. State Board of
Chiropractic Examiners,
31 Cal. 2d 833,
192 P.2d 929, 934 (1948),

and

Fitzgerald v. Conway,
195 Misc. 397,
90 N.Y.S.2d 351 (1949) aff'd.,
275 App. Div. 205,
88 N.Y.S.2d 649 (1949).

In addition, the Board may use and consider
the expertise of a national examining board
as a properly qualified advisor.

See

Eagles v. United States,
329 U.S. 304, 313-316 (1946).

You indicate that the testing service has
agreed to furnish evidence of the
examination's validity and reliability
and provide comparative scoring data.

The Board must be satisfied that the
examination fairly and adequately
measures the pharmaceutical knowledge
of applicants for licensure.

Despite the advantages of reciprocal
licensure and validation among a larger pool
of applicants, making use of a national
examination especially desirable, the Board
nevertheless has a burden of showing that the
examination furthers the statutory purposes.

Evidence which tends to show the NABP and the
national testing service are organizations of
high professional standing, that the scoring
process is accurate, that the pass/fail point
selected is appropriate, and documentation
that the examination in fact validly measures
performance capability, are appropriate to
sustain the reasonableness of the
examination.

I note that the contract allows the Board to
retain a copy of the applicant's answers
along with one copy of the examination if an
appropriate rule is adopted.

The Board is well advised to adopt such a
rule, thus enabling it independently to
assess the examination's validity by noting
the subject matter covered and by comparing
an applicant's answers with what the Board
would determine to be reasonable answers
and the score the applicant received
from the NABP.

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Accordingly, I conclude that the Board may
utilize an outside examining agency both to
perform the examination process and as an
advisor as to the fitness of applicants
for licensure but that that Board must
exercise the final responsibility of
deciding who should be licensed.

You ask if the Board and a national testing
service may refuse to disclose the
examination's content and presumably
the correct answers to an applicant
requesting an examination review.

The statutes do not require the Board to
conduct post-examination reviews with
applicants for licensure, and therefore,
the applicant does not have a statutory
right under Chapter 450, Stats.,
to review his examination.

In a challenge under Chapter 227, Stats.,
the Board may be required to show that its
refusal to license the applicant because
such applicant failed the examination
was not arbitrary and capricious.

The Board must be able to show the
examination was reasonable, utilizing the
same types of evidence indicated above
concerning the test's validity.

Further, the Board would be well advised to
be prepared to demonstrate that a particular
applicant's answers justify the determination
of a pass or fail.

It is thus essential that the Board retain
each applicant's answers, as recommended
above, in order to make that determination.

If an applicant claims the right to review
the examination on the grounds that it is a
public record, different issues are raised.

Section 19.21(2), Stats., provides that
any person shall have full access to all
public records for purposes of
examination and copying.

The right of full access,
however, is not unlimited.

First, the right to inspect is subject to
such reasonable regulations with respect
to hours and procedures that the custodian
may prescribe to limit unreasonable
interference with the ordinary
operations of his or her office.

Moreover, the custodian may refuse inspection
of certain records if he or she determines
that the public interest in nondisclosure
outweighs the public interest in having
full public access to any public records.

State ex rel. Youmans v. Owens,
28 Wis.2d 672, 681,
137 N.W.2d 470 (1965),
139 N.W.2d 241 (1966).

In making the determination, the custodian
must bear in mind that public policy favors
the right of inspection of public records,
and it is only in the unusual case that
inspection should be denied.

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Beckon v. Emery,
36 Wis.2d 510, 516,
153 N.W.2d 501 (1967).

If the custodian decides not to disclose the
records, he or she must give as concrete an
explanation as possible for nondisclosure
to the person requesting inspection of
the record.

Beckon v. Emery, supra at 516.

If the person seeking inspection is
unsatisfied by such explanation, his remedy
is in a mandamus action in circuit court.

State ex rel. Youmans v. Owens, supra at 682.

See

63 Op. Att'y Gen. 400 (1974),
60 Op. Att'y Gen. 284 (1971) and
60 Op. Att'y Gen. 470 (1971) for
further discussion concerning
disclosure of public records.

In the event an applicant requests a review
of his or her examination, the Board may
inform such applicant of the evidence
demonstrating the validity of the test, the
appropriateness of the pass/fail score and
the reasonableness of the Board's reliance on
the national exam as the testing instrument.

The decision on whether to disclose the
testing instrument should be made in
accordance with the principles outlined above
concerning public records, and it would be
appropriate for the Board to consider that
disclosure might destroy the future
effectiveness of the examination process.

BCL:CDH

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