26-ORD-136 – Melanie Barker/Finance and Administration Cabinet

Opinion Content:

March 30, 2026

In re: Melanie Barker/Finance and Administration Cabinet

Summary: The Finance and Administration Cabinet (“the Cabinet”) did
not violate the Open Records Act (“the Act”) when it could not provide a
record that is not in its possession, custody, or control.

Open Records Decision

Melanie Barker (“the Appellant”) submitted a request to the Cabinet for “the
record (DOA-28A REV 03/2023) for This Kentucky Governor Andy Beshear – Out of
Country Trip to Davos (Switzerland) in 2026.” In a timely response, the Cabinet
stated it had conducted “a diligent review [but] was unable to locate any records
responsive to [the Appellant’s] request because it does not maintain the records [she]
requested.” The Cabinet provided the name and address of the records custodian for
the Kentucky State Police, which it stated “may be in possession of records responsive
to [her] request.” This appeal followed.

A public agency “is responsible only for those records within its own custody or
control.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky. 2013)
(citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980)).
Once a public agency states affirmatively that it does not possess the requested
record, the burden shifts to the requester to make a prima facie case that the record
exists in the agency’s possession, custody, or control. 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 agency does or should possess the record, “then the agency
may also be called upon to prove that its search was adequate.” City of Fort Thomas,
406 S.W.3d at 848 n.3 (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 a
statute or regulation requiring the creation of the requested record or other factual
support for the existence of the record. 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 in the possession, custody, or
control of the agency. See, e.g., 22-ORD-040.

Here, the Appellant quotes 200 KAR 2:006 § 10(1)(c), which requires a “person”
to use “a Request for Authorization of Out-of-Country Travel document” to “request
prior authorization or reimbursement for travel.” The regulation, however, does not
designate the Cabinet as the custodian of all such records. Thus, the Appellant has
not made a prima facie case that the requested records are within the Cabinet’s
possession, custody, or control. Because the Cabinet does not possess the requested
record, and advised the Appellant of the person it believed to be the custodian of that
record, 1 the Cabinet did not violate 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 [email protected].

Russell Coleman
Attorney General

/s/ James M. Herrick
James M. Herrick
Assistant Attorney General

Ms. Melanie Barker
Barbara K. Dickens, Esq.
Ms. Laura Sharp

1 See KRS 61.872(4) (“If the person to whom the application is directed does not have custody or
control of the public record requested, that person shall notify the applicant and shall furnish the name
and location of the official custodian of the agency’s public records.”).