23-ORD-259
September 25, 2023
In re: Vivian Miles/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (“the Cabinet”)
violated the Open Records Act (“the Act”) when a requester provided
prima facie evidence that additional records should exist and the
Cabinet did not meet its burden of proving that its search was adequate.
Open Records Decision
On August 18, 2023, Vivian Miles (“Appellant”) requested inspection of “[a]ll
records/document/emails related to” an investigation of a foster care agency of which
she was part owner. For reference, the Appellant attached the first page of a
Complaint Investigation Report, which indicated the Cabinet received a complaint on
March 19, 2019, and initiated an investigation on April 9, 2019. In response, the
Cabinet provided a four-page intake summary dated April 10, 2019, which it stated
was the only record responsive to the request. This appeal followed.
The Appellant claims the Cabinet has not provided all requested records
because she is seeking documents related to a different investigation, along with
“emails/correspondence/texts” relating to that investigation and “other records which
are required according to” 42 U.S.C. § 5106a, including “the intake, assessment,
screening, and investigation of reports of child abuse or neglect.” On appeal, however,
the Cabinet states it “has searched diligently and concluded that no such report
exists” between April and October 2019.1
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,
1
The Cabinet possesses one other report, which relates to the Appellant’s husband as a foster
parent, not to the foster care agency. However, the Appellant states she is not seeking that record.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 Ft. Thomas v. Cincinnati Enquirer, 406
S.W.3d 842, 848 n.3 (Ky. 2013) (citing Bowling, 172 S.W.3d at 341). To support a
claim that the agency possesses responsive records that it did not provide, the
Appellant must produce some evidence that calls into doubt the adequacy of the
agency’s search. See, e.g., 95-ORD-96.
Here, the Appellant has provided the Complaint Investigation Report
regarding the investigation that is the subject of her request, which indicates the
complaint the Cabinet received was assigned to two different employees on March 29,
2019. Significantly, the names of the Cabinet employees on this report are not the
same names appearing on the intake summary provided by the Cabinet. The
Appellant claims the Cabinet should at least have searched the emails and
correspondence of the investigative worker whose name appears on the Complaint
Investigation Report in order to locate responsive records.
A public agency must “make a good faith effort to conduct a search using
methods which can reasonably be expected to produce the records requested.” 95-
ORD-96 (quotation omitted). In particular, the agency “is required to make a
reasonable search of persons who are likely to have responsive documents.” 14-ORD-
181 (emphasis added); but see 17-ORD-104 (finding that agencies complied with the
Act by searching the files of persons likely to possess responsive records); 14-ORD-
123 (same). An agency’s failure to contact employees who are likely to have responsive
records is an inadequate search and a violation of the Act. See, e.g., 17-ORD-273; 14-
ORD-181.
Here, the Cabinet has provided no details regarding the search it conducted,
but merely claims it “searched diligently.” The Appellant has presented prima facie
evidence that additional records should exist because the Cabinet conducted another
investigation of the foster care agency within the relevant time period. Because the
Cabinet provided no records relating to that investigation, the burden rests with the
Cabinet to prove that its search was adequate. Because the Cabinet has not met its
burden, the Office finds that it violated the Act.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to 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
#382
Distributed to:
Ms. Vivian Miles
Elyssa S. Morris, Esq.