23-ORD-068
March 27, 2023
In re: Melanie Barker/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (“the Cabinet”)
did not violate the Open Records Act (“the Act”) because it was not
obligated to create a record or to fulfill a request for information.
Open Records Decision
Melanie Barker (“Appellant”) emailed the Cabinet and asked it to provide “the
document that tells exactly how much (Dollar Amount) the ARPA[1] has paid out in
Sustainability Payments to Qualified Child Care Centers to date.” In a timely
response, the Cabinet provided the Appellant a copy of a document detailing the
disbursement plan for ARPA stabilization grants, which explained that payments
would be made quarterly from October 2021 through October 2023 with $49.6 million
reserved for each grant period. This appeal followed.
The Appellant claims the document the Cabinet provided is not responsive to
her request because she “want[s] the total dollar amount that has been paid thus far.”
In response, the Cabinet asserts the document reflects the disbursement procedure
currently in effect. The Cabinet further states it would have to “create a document”
to provide the total amount of disbursements to date.
The Act does not require public agencies to answer interrogatories or provide
information in whatever form a requester demands. Rather, residents of the
Commonwealth may only inspect identifiable “public records.” KRS 61.872; see also
Dep’t of Revenue v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013) (“The ORA does not
dictate that public agencies must gather and supply information not regularly kept
as part of its records.”). Here, the Cabinet provided a public record from which the
1
American Rescue Plan Act, Pub. L. No. 117-2, 135 Stat. 4 (2021).requested information could be calculated. The Cabinet is not required to create a
new document that does not already exist to answer the Appellant’s interrogatory.
See, e.g., 21-ORD-046. Accordingly, the Cabinet did not violate the Act.
A party aggrieved by this decision may appeal it by initiating an 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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#93
Distributed to:
Ms. Melanie Barker
David T. Lovely, Esq.