26-ORD-088 – Valerie Frost/Cabinet for Health and Family Services

Opinion Content:

March 12, 2026

In re: Valerie Frost/Cabinet for Health and Family Services

Summary: The Cabinet for Health and Family Services (“the Cabinet”)
did not violate the Open Records Act (“the Act”) when it did not provide
the Appellant with records it does not possess.

Open Records Decision

Valerie Frost (“Appellant”) submitted a request to the Cabinet for three
categories of records: (1) “Email Attachments & Metadata” 1; (2) “Device Usage Logs
(Work Laptop & State-Issued Phone)” 2; and (3) “Network Activity / Internet Browsing
History.” 3 The Appellant further specified that her extensive list “is representative,
not exhaustive” and that she is “requesting all relevant logs showing whether these
sites, or similar, were accessed from state-issued devices or the state network.” The

1 The Appellant requested “[a]ll attachments, metadata, and transmission logs for the email sent by
[a specific person] from her state-issued email account to her partner, which DCBS produced without
attachments in the prior partial release.”
2 The Appellant requested “[a]ll device usage logs for any state-issued devices assigned to or used
by [a specific person], including:” application logs, file access logs, USB/drive access logs, cloud storage
access (OneDrive, SharePoint), document creation/modification logs, screenshot logs (if retained), any
records indicating copying, downloading, or compiling Facebook messages or court documents related
to the Appellant.
3 The Appellant requested “[a]ll internet browsing history, URL logs, and network access logs from
state devices and the state network used by [a specific person] including but not limited to:” the
Appellant’s professional platforms and accounts, the Appellant’s website, the Appellant’s LinkedIn
account, the Appellant’s Facebook profile, the Appellant’s podcast, the Appellant’s workplaces,
websites associated with impersonation, email spoofing, spam sign-ups, or harassment, COBENFY
Dun & Bradstreet, Craigslist, LendingTree, Publishers Weekly, Space Capital Sex, With Emily,
TL;DR, Schizophrenia & Psychosis, Action Gizmodo MortgagePros, PolicyGenius, Superior Home,
EveryMeds, additional platforms commonly used for spoofing, anonymous email, mass sign-ups,
ProtonMail, TutaMail, Temp-Mail, AnonEmail, SpoofCard, or any bulk email subscription service.

Cabinet granted the Appellant’s request and provided responsive records. 4 This
appeal followed. 5

On appeal, the Cabinet maintains that it has produced all responsive records
in its possession. Once a public agency states affirmatively that no responsive records
exist, the burden shifts to the requester to make a prima facie case that the records
do 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 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). A requester must provide some evidence
to make 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. A
requester’s bare assertion that certain records should exist is insufficient to make a
prima facie case that the records actually do exist. See, e.g., 22-ORD-040.

The Act “does not require public agencies to carry out research or compile
information to conform to a given request.” OAG 89-45. Nor is a public agency
“obligated to compile a list or create a record to satisfy an open records request.” OAG
76-375. Here, initially and on appeal, the Cabinet states that it has provided all
responsive records in its possession. 6 The Cabinet further asserts that if a record was
not provided, it does not maintain that type of record and is not required to create a
record to fulfill the request.

To make a prima facie case that the Cabinet does or should possess additional
records, the Appellant asserts that the Cabinet did not perform a “good-faith search
for other responsive records.” However, the Appellant presents no evidence that the
Cabinet possesses, or should possess, any additional records. Thus, the Appellant
failed to make a prima facie case that any additional responsive records do or should
exist. Moreover, the Cabinet is not obligated to create any of those records just to

4 The Cabinet invoked KRS 61.872(5) to delay the Appellant’s access to the email records. The
Appellant does not challenge the Cabinet’s delay.
5 The Appellant brought the appeal on three grounds: (1) that the cabinet’s production of records
was incomplete; (2) the Cabinet failed to provide a statement that no additional records exist; and (3)
the Cabinet did not explain the omission of the records.
6 Specifically, the Cabinet stated, “With this release, this request will be complete, and the Cabinet
has responded to all data that is available[.]” A statement from a public agency that it has provided
all records within its possession is “tantamount to an affirmative statement that the remaining records
requested do not exist.” 04-ORD-040.

fulfill her request. Thus, the Office cannot find that the Cabinet violated the Act when
it could not provide the Appellant with records it does not possess.

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 [email protected].

Russell Coleman
Attorney General

/s/ Matthew Ray
Matthew Ray
Assistant Attorney General

Valerie Frost
Peyton Sands
Natalie Nelson
Evelyn L. Miller