23-ORD-002
January 3, 2023
In re: Melanie Barker/ 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 did not
respond to a request to inspect records within five business days of
receipt or otherwise notify the requester of the proper email address to
submit her requests. See KRS 61.872(4). The Cabinet did not violate the
Act when it denied requests for records that do not exist in its
possession.
Open Records Decision
Melanie Barker (“Appellant”) submitted three record requests to the Cabinet
on July 14, 2022, October 27, 2022, and October 28, 2022.1 On August 9, 2022, the
Cabinet denied the Appellant’s July 14 request. On November 29, 2022, having
received no further response regarding the October 27 and October 28 requests, the
Appellant initiated this appeal.
Upon receiving a request for records under the Act, a public agency “shall
determine within five (5) [business] days . . . after the receipt of any such request
whether to comply with the request and shall notify in writing the person making the
request, within the five (5) day period, of its decision.” KRS 61.880(1). Here, the
Cabinet admits it failed to respond to the October 27 and October 28 requests.
However, the Cabinet notes the Appellant failed to properly submit these requests
1
The July 19 request was for “the Complaint made against [a specified business] in July 2022.
The October 27 request was for “ARPA Funds Payouts” made in October 2022, the “[c]oncern made in
regard to [a specified business] in October 2022,” a document listing businesses whose patrons were
contacted by the Cabinet from 2018 to 2022, and the criteria used to determine whether such calls will
be made. The October 28 request was for the names of trainer who received payments under the “ARPA
Grant.”because she emailed them to a Cabinet employee instead of the email address of its
official records custodian.
The Office agrees the method by which the Appellant has submitted her
requests does not comply with the Act. If a person chooses to submit her request by
email, she must send the email “to the public agency’s official custodian of public
records or his or her designee at the e-mail address designated in the public agency’s
rules and regulations.” KRS 61.872(2)(b)4. Here, the Appellant has demonstrated a
pattern of sending multiple emails to this Cabinet employee—sometimes including
employees of this Office—and those emails contain a mix of requests for the Cabinet
to take action in relation to an investigation as well as requests to inspect records.
The Cabinet claims the Appellant’s habit of sending multiple emails to multiple
people containing mostly grievances and insults directed towards Cabinet employees
is evidence of “inten[t] to disrupt other essential functions of the public agency.”
KRS 61.872(6). However, the Cabinet did not deny the Appellant’s requests on this
basis. Moreover, under KRS 61.872(4), “[i]f the person to whom the application is
directed does not have custody or control of the public record requested, that person
shall notify the applicant and shall furnish the name and location of the official
custodian of the agency's public records.” Thus, while the Appellant’s requests failed
to comply with KRS 61.872(2)(b)4, because she emailed them to the wrong person,
the Cabinet’s employee (who processes Open Records requests) should have informed
the Appellant of the proper email address to which she could submit her requests.
Instead, the Cabinet ignored the Appellant’s emails completely. Thus, the Cabinet
violated KRS 61.872(4) when it failed to inform the Appellant of the proper method
of submitting her request.
On appeal, the Cabinet states it does not possess any records responsive to the
Appellant’s October 27 request for the “[c]oncern made in regard to [a specified
business] in October 2022,” a document listing businesses whose patrons were
contacted by the Cabinet from 2018 to 2022, or the criteria used to determine whether
such calls will be made. Once a public agency states affirmatively that a record does
not exist, the burden shifts to the requester to present a prima facie case that the
requested record does or should exist. See Bowling v. Lexington–Fayette Urb. Cnty.
Gov’t, 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).
Here the Appellant has not established a prima facie case that responsive
records exist for any of her requests. Therefore, the Cabinet did not violate the Act
when it did not provide records it does not possess.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 within 30 days
from the date of this decision. Pursuant to 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 e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#450
Distributed to:
Melanie Barker
Peyton Sands
David T. Lovely