22-ORD-226
October 25, 2022
In re: Wayne and Vivian Miles/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (the “Cabinet”)
violated the Open Records Act (“the Act”) when it failed to issue a
response either granting or denying a request within five business days,
and when it failed to explain the adequacy of its search for responsive
records. However, the Cabinet did not violate the Act when it withheld
records under KRS 620.050(5).
Open Records Decision
On July 13, 2022, Wayne and Vivian Miles (“Appellants”) submitted the first
of three requests for records to the Cabinet. Their first request was for “any
investigation records or other reports, records of any hearings conducted or meetings”
as well as “[r]ecords of visits” related to “Brighter Future TFC” or the Appellants. On
the same day, the Cabinet asked the Appellants to supply the “[p]rovider [n]umber”
so that it could obtain “records from the correct agency.” The Cabinet also advised the
Appellants to provide more “specificity,” otherwise they may find themselves “flooded
with needless paper, or [the Cabinet] may have to decline to respond to [the] request
because documents are too voluminous.” The Cabinet, however, neither granted nor
denied the Appellant’s first request.
Over the following weeks, the Appellants submitted several emails to the
Cabinet inquiring about the status of their request. On August 23, 2022, after the
Appellants again asked the Cabinet for an update, the Cabinet advised that their
original request “may have gotten lost in the shuffle” and that the Appellants should
re-submit their request because “a new request will get some attention.”On August 31, 2022, the Appellants submitted two additional requests to the
Cabinet. First, they requested emails from 2019 between the Cabinet and several
specifically identified people, including the Commonwealth’s Attorney in Fayette
County. Second, the Appellants sought records of any meetings between the Cabinet
and the Executive Director of “Brighter Futures TFC” in 2019. The Appellants also
asked for all emails sent or received in 2019 by a Cabinet employee with the same
name as the Executive Director. Over the following weeks, the Appellants and the
Cabinet exchanged several emails concerning the records. On September 26, the
Appellants appealed to this Office, claiming they have yet to receive any records from
the Cabinet.
Upon receiving a request to inspect records, a public agency must decide within
five business days whether to grant the request, or deny the request and explain why.
KRS 61.880(1). Alternatively, a public agency may delay access to the records if the
records are in “active use, storage, or are otherwise unavailable.” KRS 61.872(5).
However, when a public agency invokes KRS 61.872(5), it must notify the requester
of the “earliest date on which the public record will be available” and give a “detailed
explanation” of the cause of the delay.
Here, the Cabinet responded to the Appellants’ first request the same day it
was received, but the Cabinet neither granted nor denied the request. Rather, the
Cabinet asked the Appellants to give “[p]rovider [n]umber(s)” and suggested they
consider narrowing their request. But the Cabinet did not expressly deny the request,
or state an exemption and explain how it applied to deny the request. Accordingly,
the Cabinet violated KRS 61.880(1) when it failed to notify the Appellants within five
business days whether their request had been granted or denied.
After the appeal was initiated, on October 12, 2022, the Cabinet issued a formal
response from its attorney and provided 67 pages of responsive records. Now the
Cabinet states it has provided all responsive records that exist within its possession
that are not otherwise excluded from inspection. However, the Cabinet denied the
Appellants access to 15 messages because the messages are confidential under
KRS 620.050(5) and therefore excluded from inspection under KRS 61.878(1)(k) and
(l).1 However, the Appellants claim the Cabinet has not provided all responsive
records and that additional records should exist.
1
The Cabinet asks the Office to consider the appeal moot because it claims it has provided all
records it possesses that are responsive to the Appellants’ request. Under 40 KAR 1:030 § 6, “[i]f the
requested documents are made available to the complaining party after a complaint is made, theOnce a public agency states affirmatively that it does not possess responsive
records, the burden shifts to the requester to present a prima facie case that
requested records do exist in the possession of the public agency. See Bowling v.
Lexington-Fayette Urb. Cnty. Gov., 172 S.W.3d 333, 341 (Ky. 2005). If the requester
is able to make a prima facie case that the records do or should exist, then the public
agency “may also be called upon to prove that its search was adequate.” City of Fort
Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling,
172 S.W.3d at 341).
The Appellants claim the Cabinet has failed to address their request for emails
to or from the Cabinet employee sharing the name of the Executive Director.2 The
Appellants had identified that employee’s state email address, and requested all the
emails sent to or received by that email address in 2019. To make their prima facie
case that at least some responsive emails exist, the Appellants provide an email from
that specific Cabinet employee from 2019 that they received in response to another
open records request.3 This is sufficient to show that the employee email account the
Appellants specified was active in 2019 and sent and received messages, and
therefore, the burden shifts to the Cabinet to explain the adequacy of its search. But
the Cabinet has not explained the parameters of its search at all, and thus, has not
sufficiently explained its adequacy. Accordingly, the Cabinet violated the Act when it
did not conduct an adequate search for that employee’s emails.4
Finally, the Cabinet withheld 15 responsive messages because the records are
confidential under KRS 620.050(5), which states a “report of suspected child abuse,
neglect, or dependency and all information obtained by the cabinet or its delegated
representative, as a result of an investigation or assessment made pursuant to this
Attorney General shall decline to issue a decision in the matter.” The Cabinet has withheld 15 records
from the Appellant, so it has not provided all the requested records. Additionally, the Appellants
contest the Cabinet’s withholding of the additional 15 responsive records. This appeal is not moot.
2
They also claim not to have received records in response to an oral request they had made.
However, the Office does not have jurisdiction to review oral requests for records and declines to
consider this aspect of their appeal. See 22-ORD-215.
3
From the email the Appellants provide, the Cabinet employee stated she was confused why certain
information was being sent to her. Although unclear, perhaps the confusion stems from the fact the
Executive Director of Brighter Futures (which appears to be the actual target of the Appellants’
request) shares the same name with this employee. Regardless, the Appellants requested all emails
from that employee’s email account in 2019.
4
The Appellants also requested emails between three other Cabinet employees, but only for emails
exchanged in August and September 2019. Unlike the employee who shares the name with the
Executive Director, the Appellants have not made a prima facie case that these three other employees
existed or that they sent or received emails in August and September 2019.chapter . . . shall not be divulged to anyone” except to those people listed in
KRS 620.050(6).5 Here, the Cabinet claims KRS 620.050 applies to these 15 messages
because they “consist[ ] of information on a child placed at Brighter Futures by the
Department for Community Based Services.” Accordingly, they contain “information
obtained by the cabinet . . . as a result of an investigation or assessment” under
KRS Chapter 620. The Appellants have not presented any evidence that they are
among the individuals permitted to review such information under KRS 620.050(6).
See, e.g., 20-ORD-161 (a person who was previously suspected of causing dependency,
abuse, or neglect was entitled to inspect the records under KRS 620.050(6)).
Accordingly, the Cabinet did not violate the Act when it withheld records that are
confidential under KRS 620.050(5).
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under KRS 61.880(3), the Attorney General shall be notified
of any action in circuit court, but shall not be named as a party in that action or in
any subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#371
Distributed to:
Wayne and Vivian Miles
Joan Deaton Grefer
Peyton Sands
David T. Lovely
5
KRS 620.050(5) is incorporated into the Act under KRS 61.878(1)(l) which exempts from inspection
“[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made
confidential by enactment of the General Assembly[.]”