October 9, 1996

In re: Barbara Erfurth/Spencer County Public Schools

Open Records Decision

This matter comes to the Attorney General on appeal from the Spencer County Public School District's response to Ms. Barbara Erfurth's open records request to inspect certain of the school's records.

The relevant facts are as follows:

1.) On August 20, 1996, Ms. Erfurth sent the School Board of the Spencer County Public School District a letter notifying the Board of her decision to withdraw her three children from the public schools and informing them that the children would be taught in “home school” by her. In addition, she requested to be informed of home school requirements from the State or District and all forms that needed to be filled out; to see the complete files of each of her children; the name of the person she needed to contact concerning specialized needs of her children (her son had been identified as dyslexic, one daughter wanted to remain part of high school chorus, and the other was considering joining an art class at high school); grade level contact teachers, if possible, who could give her information about the District curriculum in her children's grades; any tests administered at the State and National level; advanced notice as to what kind of test is being given, when and where, so arrangements could be made for her children to take the tests; and notice of any training sessions for teachers in the District so she could have a chance to take part.

2.) On September 3, 1996, Ms. Erfurth wrote another letter to the School Board in which she stated that on August 20, 1996 she had requested to see the records of her three children and all available home school information and paper work. She further stated that as of September 3, she had not received an answer from the Board, either by phone or in writing. She indicated the failure to receive a written response within three working days was a violation of the Open Records Act.

3.) On September 4, 1996, Mr. John Thompson, Superintendent, Spencer County Public Schools, responded to Ms. Erfurth's August 20 letter by informing her that home schooling is not regulated by the State and there were no home school requirements, prescriptions, prescribed curriculum, or forms to fill out; she could see the files of her children at anytime she makes an appointment with the guidance office of the school to do so; the District had no responsibility, authority or resources to provide partial, selective or elective educational experiences for children who are being home schooled; teachers at the Spencer County Schools had no responsibility to provide information regarding the District curriculum to home schools; she could be provided a draft copy of the state suggested Core Content for assessment for all grades, which would provide curriculum guidance in academic areas; that he knew of no way a child not enrolled in the Kentucky Public Schools could be permitted to participate in the Kentucky Instructional Results Information System (KIRIS), any decision on this issue would have to be made by the Kentucky Department of Education; and, as to her participating in District teacher training, a contractual arrangement with the Board of Education would be necessary as any expenses incurred by the District in providing training to a non-employee would have to reimbursed to the District.

In reference to her September 3 letter, Mr. Thompson responded that her August 20 letter had been processed administratively and not as an open records request. He stated that there was no indication in the letter that it was an open records request and it was treated as a request for help. He provided Ms. Erfurth with a copy of the Board's posted open records regulations. He explained that the reason for an “official” open records request is to identify such a request as a priority in order that it might be given appropriate attention, and not be handled administratively. As to her September 3 request, Mr. Thompson stated student records are maintained in the guidance office of each school and the records were available for her inspection by making an appointment with the guidance office. As to Ms. Erfurth's request regarding “all available home school information and/or paperwork,” Mr. Thompson explained that the District maintained no information regarding home schooling and that she had complied with the law by notifying the Board, in her letter of August 20, of her intent to home school her children.

On appeal, we are asked to determine if the Spencer County Public School District violated the Open Records Act in its response to Ms. Erfurth's request. For the reasons which follow, we conclude that the District's response substantially satisfied the requirements of the Act.

KRS 61.880(1) sets forth the procedural guidelines for agency response to an open records request. That statute, in part, provides that an agency, upon receiving a request for records under the Open Records Act, shall determine within three working days whether to comply with the request and shall notify in writing the person making the request, within the three day period, of its decision.

In the instant case, the School District did not respond to Ms. Erfurth's August 20 request for certain records within the three day period. Mr. Thompson's explanation was that, because there was no indication in the letter that it was an open records request, it was processed administratively. He further explained that because of the nature of the request, it was treated as a request for help.

We believe there is merit to Mr. Thompson's explanation. As noted above, the August 20 letter included a request for much more than a request for records. It included, among other things, a notification of Ms. Erfurth's intent to home school her children; a request for information and assistance regarding the home schooling; a request for her children to participate in certain public school programs; a request for the name of the contact person concerning special needs of her children; a request for information regarding curriculum and tests, etc.

The Open Records Act does not require an affirmative statement that the request is an “open records request.” However, it remains incumbent upon the public agency to make a good-faith determination whether the request is one made under the Open Records Act. Under the facts of this case, we believe that Mr. Thompson made a good-faith determination that Ms. Erfurth's request was one for help and not a request under the Open Records Act.

To the extent the School District incorrectly assessed the August 20, 1996 request, this deficiency is more than mitigated by the School District's substantive response of September 4, 1996 which explained that the school records of her children were available to her by making an appointment with the guidance office of the school and it did not have information or forms regarding home schools.

As to her request for all available home school information and paperwork, Mr. Thompson responded that the School District maintained no information regarding home schools. Obviously, an agency cannot provide records that it does not have or which do not exist. Mr. Thompson advised Ms. Erfurth that she had complied with the law by notifying the District of her intent to home school her children and that no further paperwork was required.

Accordingly, it is the decision of this office that the response of the School District to Ms. Erfurth's requests was in substantial compliance with the Open Records Act.

A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Barbara Erfurth

687 Chatman Lane

Taylorsville KY 40071

John Thompson


Spencer County Schools

207 Main Street

Taylorsville KY 40071