25-ORD-059
March 6, 2025
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 failed to issue a
response to a request to inspect records within five business days of
receiving it. The Cabinet did not violate the Act when it did not provide
records it does not possess, or when it did not grant requests seeking
information without describing public records to be inspected.
Open Records Decision
On January 29, 2025, Melanie Barker (“Appellant”) submitted, by email, a
request to the Cabinet stating, “I have questions regarding the Excel Spreadsheet”
the Cabinet had previously provided her.1 The Appellant then submitted 14 questions
regarding the content of the spreadsheet. With the Appellant’s questions, the
Appellant also stated, “I need an Itemized Document for the $194 Million that went
to CCAP.” Having received no response to her request by February 6, 2025, the
Appellant initiated this appeal.
Under KRS 61.880(1), 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.” Here, the
Appellant submitted her requests to the Cabinet on January 29, 2025, but had not
received a response as of February 6, 2025, the sixth business day following
submission of the requests. The Cabinet states that, because most of the Appellant’s
request asked questions rather than requesting records, it did not initially interpret
the Appellant’s January 29 email as a request for records. However, the subject line
of the Appellant’s email identified it as a request under the Act. Accordingly, the
1
The subject line of the Appellant’s email was “Open Records Request (01/29/25).”Cabinet violated the Act when it failed to respond to the Appellant’s requests within
five business days.
On appeal, the Complex maintains that it possesses no records responsive to
the request for an “Itemized Document” other than what it has already provided to
the Appellant. 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
established a prima facie case that additional records exist. Therefore, the Cabinet
did not violate the Act when it did not provide records it does not possess.
On appeal, the Cabinet maintains that the rest of the Appellant’s request asks
questions and does not seek records. The Cabinet is correct. The Appellant submitted
a series of questions regarding a record previously provided by the Cabinet. These
questions ask “why” the Cabinet made certain expenditures, to “what” certain
acronyms refer, or to “who[m]” certain expenditures were directed. Her request did
not describe public records to be inspected, but rather, sought information. See, e.g.,
23-ORD-257 (denying a request for “the full names” of correctional officers on duty at
a specific time); 22-ORD-054 (denying a request asking “who ordered” a letter to be
written, how much the author was paid, and “why” the letter “was circulated”). The
Act does not require public agencies to answer interrogatories or fulfill requests for
information. Rather, it only requires public agencies to produce extant public records
for inspection. See KRS 61.872(2)(a) (requiring a request to inspect records to include,
inter alia, a description of “the records to be inspected”); Dep’t of Revenue v. Eifler,
436 S.W.3d 530, 534 (Ky. App. 2013) (“The [Act] does not dictate that public agencies
must gather and supply information not regularly kept as part of its records.”).
Accordingly, the Cabinet did not violate the Act when it did not provide all the
information sought by the Appellant because her request did not describe public
records she wished to inspect.
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 inany 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
#055
Distributed to:
Melanie Barker
Peyton Sands, Staff Attorney III, Cabinet for Health and Family Services
Evelyn L. Miller, Legal Secretary, CHFS Open Records, Cabinet for Health and
Family Services