23-ORD-321
December 5, 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 it did not issue a timely
response to a request made under the Act. However, the Office is unable
to find the Cabinet violated the Act when it denied a request for records
that do not exist.
Open Records Decision
On September 14, 2023, Vivian Miles (“Appellant”) submitted to the Cabinet a
request for records containing three subparts. First, the Appellant requested
“identifying notices” or “notification letters provided to” a specific business, its staff,
or license holders in 2019. Second, she requested “[r]ecords identifying the [number]
of Letters of Concern issued [by the Cabinet] to PCP Agencies in 2019.” Third, she
requested “[r]ecords identifying the [number] of fatalities and/or near fatalities for
children in state care placed in PCP Agencies in 2019.” On September 25, having
received no response from the Cabinet, 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 a request to the Cabinet on September 14, 2023, and the Cabinet
does not dispute that it failed to respond to the request. Thus, the Cabinet violated
the Act.On appeal, the Cabinet provides the Appellant with records responsive to the
second and third subparts of her request.1 However, the Cabinet states it does not
possess any records responsive to the first subpart of the request because it “does not
send anything related to investigations, only emails/letters surrounding the Letter of
Concern.” 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). The Office has found that the existence of a record “can be
presumed where statutory authority for its existence has been cited or can be
located.” 11-ORD-074. 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).
To make a prima facie case that the Cabinet should possess records responsive
to the first subpart of her request, the Appellant asserts various authorities require
the Cabinet to provide notice of an investigation.2 The Cabinet, however, claims the
authority the Appellant cites applies only to investigations conducted into allegations
of dependency, neglect, or abuse of a child. See, e.g., KRS 620.030. The Cabinet
explains that the records the Appellant requested here related to an investigation
into a private childcare facility for alleged violations of an agreement, not an
investigation into allegations of dependency, neglect, or abuse. Accordingly, the
Appellant’s cited authority does not establish a prima facie case for the existence of
the requested records.
Moreover, even if the Appellant had established a prima facie case that the
requested records should exist, the Cabinet has explained the adequacy of its search.
Specifically, the Cabinet has searched the email accounts of 15 employees related to
an investigation into the private childcare facility for its alleged violation of the
agreement, as well as the records databases for its Division for Community Based
Services and Division of Regulated Child Care. After conducting these searches, the
Cabinet found no additional records relating to the private childcare facility, other
than those that had already been provided to the Appellant. Accordingly, the Cabinet
1
The Cabinet states the records provided were “redacted in accordance with the Kentucky Revised
Statutes,” and the Appellant has not disputed these redactions.
2
Specifically, she cites Section 2.11(3)(B) of the Cabinet’s standard operating procedure for
conducting investigations into allegations of dependency, abuse, or neglect; 42 U.S.C. § 5106a; and 922
KAR 1:330.has explained the adequacy of its search, and the Office cannot find that it violated
the Act when it did not provide records that do 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/ Matthew Ray
Matthew Ray
Assistant Attorney General
#415
Distributed to:
Vivian Miles
Elyssa S. Morris
Peyton Sands