24-ORD-148
June 18, 2024
In re: Gabrielle Sorresso/Kentucky Cabinet for Health and Family Services
Summary: The Kentucky Cabinet for Health and Family Services (the
“Cabinet”) did not violate the Open Records Act (“the Act”) when it
partially denied a request for records because the requester is not a
resident of the Commonwealth.
Open Records Decision
Gabrielle Sorresso (“Appellant”) submitted a request to the Cabinet for “historic
childcare provider data for the state of Kentucky.” The Appellant specified that she
requested “a list of child care facilities that were ever active in [Kentucky] from the
early 2000s to present,” and that the list should include each “childcare facilities’
name, address, facility type (including licensed, unlicensed, and family day homes),
license issue/expiration date, date opened/closed, . . . capacity,” and “whether the
center accepts subsidies, quality rating, or cost.” In a timely response, the Cabinet
partially granted the request and provided “the only existing record responsive to the
Appellant’s request.”1 The Cabinet also partially denied the request because it does
not possess “historical data” and “does not have readily available information for the
issue /expiration dates or open/closure dates of the child care centers.” This appeal
followed.
On appeal, the Cabinet now claims the request was properly denied because
the Appellant does not qualify as a “resident of the Commonwealth” under
KRS 61.870(10). Under KRS 61.872(2)(a), only a “resident of the Commonwealth
1
Once a public agency states affirmatively that it does not possess any additional records, the
burden shifts to the requester to present a prima facie case that additional records do exist. See
Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). If the requester
establishes a prima facie case that additional records do or should exist, “then the 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).shall have the right to inspect public records.” The Act provides seven ways in which
a person may qualify as a “resident of the Commonwealth.” See KRS 61.870(10). The
term includes an individual residing in the Commonwealth, a domestic business
entity, a foreign business entity registered with the Secretary of State, a person “that
is employed and works at a location or locations within the Commonwealth,” a person
or business that owns real property in the Commonwealth, or any person “that has
been authorized to act on behalf of” one of these individuals. Id. A “resident of the
Commonwealth” also includes a “newsgathering organization,” as defined in
KRS 189.635(8)(b)1.a.–e. Id. If the requester fails to provide a statement regarding
his or her residency qualifications, then the agency’s records custodian may ask the
requester to provide such a statement. KRS 61.872(2)(a).
Here the Appellant has not provided a statement regarding her residency
qualifications. Rather, the Appellant indicates she is an out-of-state “graduate
student working on a project studying supply and demand of childcare nationally.”2
At no point did the Appellant assert that she is, or qualifies as, a “resident of the
Commonwealth” under KRS 61.870(10). Accordingly, the Cabinet did not violate the
Act when it partially denied the Appellant’s request because she does not meet the
residency requirement under KRS 61.870(10).
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.
Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
2
The signature block on the Appellant’s request lists a university located in New York.#252
Distributed to:
Gabrielle Sorresso
Vickie D. Walters
Elyssa S. Morris
Peyton Sands