24-ORD-214
October 3, 2024
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 Record Act (“the Act”) when it did not provide
records it does not possess.
Open Records Decision
Melanie Barker (“Appellant”) submitted a request asking, “Does the state
provide any grants, direct economic funding, tax incentives, [or] indirect economic
funding” to a specific organization. She then stated that “[she] needs all public
documents.” On the fifth business day following her request, the Appellant asked
when she would receive a response. Shortly thereafter, the Cabinet stated that it
“does not possess any records responsive to this request.” The Appellant then
requested the case number for the Cabinet’s denial and the Cabinet stated that it did
not know what the Appellant was referring to. This appeal followed.
On appeal, the Cabinet maintains that it does not possess records responsive
to the Appellant’s request, nor does it assign case numbers to requests made under
the Act. 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 makes 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 made a prima facie case that the Cabinet possesses
records responsive to her request.1 Accordingly, the Cabinet did not violate the Act
when it did not provide records it does not possess.2
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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General
#375
Distributed to:
Melanie Barker
Elyssa S. Morris
Peyton Sands
Evelyn L. Miller
1
Instead, she asserts that the Cabinet could not have completed a search in the time between her
follow-up and the Cabinet’s response. But the Cabinet states that its search began the day it received
the Appellant’s request and concluded on the fifth business day following receipt of the request.
2
The Appellant also takes issue with the Cabinet communicating its response in an email instead
of a hard copy letter. But the Act requires only that agencies notify requesters of their decision to grant
or deny a request “in writing.” KRS 61.880(1). By informing the Appellant that it does not possess
responsive records in an email, the Cabinet has satisfied the Act.