23-ORD-190
July 27, 2023
In re: Vivian Miles/Cabinet for Health and Family Services
Summary: This Office cannot find that the Cabinet for Health and
Family Services (“Cabinet”) violated the Open Records Act (“the Act”)
when it denied a request for a record that does not exist.
Open Records Decision
Vivian Miles (“the Appellant”) submitted a request to the Cabinet seeking
employment records related to the hiring of two employees with the same name. The
first employee was hired in 2011 and the second was hired in 2020. The Cabinet
provided all responsive records it possessed. The Appellant then initiated this appeal,
claiming the Cabinet did not provide a “KARES Applicant/Employee/Pre-Screening
Form” for either employee.
On appeal, the Cabinet claims it has provided all responsive records and no
KARES form exists for either employee. Once a public agency states affirmatively
that no additional records exist, 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). A requester must provide some evidence
to support a prima facie case that requested records exist, such as the existence of a
statute or regulation requiring the creation of the requested record, or other factual
support for the existence of the records. See, e.g., 21-ORD-177; 11-ORD-074.
Here, to make a prima facie case the KARES forms should exist, the Appellant
cites to various federal and state laws requiring an FBI background check for any
employee or contractor who will have access to federal tax information. See, e.g., 26
U.S.C. § 6103; KRS 194A.062; 900 KAR 1:0090. In addition to these authorities, theAppellant also provides records she received in response to another open records
request regarding a different Cabinet employee, which included a KARES form.
Because the Appellant has cited to authorities and provided evidence that at least
some Cabinet employees must undergo an FBI criminal background check, and
because the KARES form is the form the Cabinet uses to facilitate these background
checks, she has made a prima facie case that a KARES form might exist for the
identified employees.
However, in response to the Appellant’s prima facie case, the Cabinet explains
the two employees identified in the request were employed in the position of Social
Service Worker I. According to the Cabinet, social service workers do not have access
to federal tax information and therefore were not required to undergo an FBI criminal
background check at the time they were hired in 2011 and 2020, respectively. The
employee whose application did contain a KARES form was employed in the position
of Family Specialist I and did have access to federal tax information, which
necessitated that employee’s submission to an FBI criminal background check.
KRS 194A.062(2) requires all “[f]ront-line staff, as defined in KRS 194A.065”
to “submit to national and state fingerprint-supported criminal background checks
by the Department of Kentucky State Police and the Federal Bureaus of
Investigation.” However, KRS 194A.062(2) did not take effect until July 15, 2020. See
2020 Ky. Acts. ch. 53 § 1 (amending KRS 194A.062 to add the current subsection (2));
OAG 20-08 (holding the effective date of legislation passed during the General
Assembly’s 2020 regular session is July 15, 2020). KRS 194A.065 defines “[f]ront-line
staff” to include “an employee whose professional duties include ongoing adult or child
protective services, protective services investigations or assessments, or regularly
conducting interviews, visits, contacts, or providing transportation services or other
services in the homes of family members involved in adult or child protective
services.” Thus, prior to July 15, 2020, social service workers who did not have access
to federal tax information were not required to submit to an FBI criminal background
check.
Although the Cabinet has not specified the actual date of hire for the employee
hired in 2020, the records the Appellant provided shows that employee submitted her
application for employment on April 16, 2020. Assuming the hiring process concluded
before July 15, 2020, i.e., three months after the application was submitted, the
Cabinet is correct that the employee was not required to submit to an FBI criminal
background check. It therefore follows that no KARES form for that employee would
exist, and one certainly would not exist for the employee hired in 2011. Accordingly,although the Appellant has established a prima facie case that, since July 15, 2020,
social service workers are required to submit to an FBI criminal background check,
the Cabinet has adequately explained why no KARES forms for these two employees
exist. Accordingly, the Office cannot find that the Cabinet violated the Act when it
did not provide a record that does not exist.
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/ Marc Manley
Marc Manley
Assistant Attorney General
#283
Distributed to:
Vivian Miles
Elyssa S. Morris
David T. Lovely