26-ORD-010 – Melanie Barker/Finance and Administration Cabinet

Opinion Content:

January 13, 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 denied a request for
records that are not within its possession, custody, or control.

Open Records Decision

Melanie Barker (“Appellant”) submitted a request to the Cabinet for the
“Employee Identification Badge” for two named individuals. The Appellant specified
that the records should include “a photo” and that she wanted “that photo for both as
well.” The Cabinet invited the Appellant to clarify her request.1 The Appellant then
clarified her request.2 The Cabinet responded that, “[a]fter a diligent search, the
[Cabinet] was unable to locate any records responsive to [the Appellant’s] request
because it does not maintain the records [she] requested.” The Cabinet explained that
“[t]here is no record maintained in the system that retains completed badges” but
that “[t]here were five (5) photos retained in the system,” which it provided. The

1 Specifically, the Cabinet denied her request because “[t]he scope of your request is much too broad”
because there are “numerous [Cabinet] employees with those names.” The Cabinet invited the
Appellant to “provide more detail to narrow [her] request, thereby allowing [the Cabinet] to complete
a search and respond.”
2 Specifically, the Appellant responded that there were four Cabinet employees with those names
and that she wanted all four of their records. The Cabinet informed the Appellant that “[t]here are
more than 8 people with those 2 names in our data base” and asked her “[w]hich Cabinet do they work
for, or what do they do?” The Appellant inquired why “only 4 people of each name come up on [the
Cabinet’s] transparency website.” The Cabinet asked whether the Appellant was “requesting a record
or document on how transparency works.” The Appellant informed the Cabinet that she wanted the
records of the four specific employees of each name on its “transparency website” and asked if its
“database include[s] Former & Current Employees by these names.”

Cabinet then referred the Appellant to three other public agencies that might possess
records responsive to her request. This appeal followed.3

Initially, and again on appeal, the Cabinet has stated that it does not possess
any records responsive to the Appellant’s request. Once a public agency states
affirmatively that no further responsive records exist, the burden shifts to the
requester to make 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). 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.

Here, to make a prima facie case that the Cabinet does or should possess
additional records, the Appellant asked, “If records do NOT exist and are NOT in
their custody — why did they send 6 pictures without badge identification
information?” She further states that “there are 8 on the transparency website and
[the Cabinet] said there was way more in their database.”4 The Appellant does not
provide any statute, regulation, or any authority to support her allegations.5 As a
result, the Appellant fails to make a prima facie case that any responsive records

3 The Appellant raises many questions, such as “who should have the records” she seeks. The Office
is unable to answer such questions, as they are beyond the scope of an appeal under the Act. See KRS
61.880.
4 The Appellant also informed the Office that she reached out to the Personnel Cabinet, which told
her the Cabinet “has the records.” The Appellant did not provide the Office with any proof related to
her communications with the Personnel Cabinet.
5 Moreover, the Appellant requested an “Employee Identification Badge” for employees with specific
names she supplied, but the records the Cabinet provided to her, per her description are merely
photographs, not identification badges. The Cabinet being able to provide her photographs of several
employees does not make a prima facie case that the Cabinet possesses any employee identification
badges. Additionally, the fact that there are fewer employees with the specific names on the
“transparency website” than the Cabinet informed the Appellant exist in its system could be for any
number of reasons, and the Appellant supplied no proof at all, just bare assertions. On appeal, the
Cabinet explains that the “transparency website” only contains some information and not all
information concerning its employees.

exist or were ever in the Cabinet’s possession.6 Accordingly, the Cabinet did not
violate the Act when it denied a request for records that are not within its possession,
custody, or control.7

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

Melanie Barker
Barbara K. Dickens
Laura Sharp

6 On appeal, the Cabinet adequately explains why it does not possess any records responsive to the
Appellant’s request. The Cabinet explains that, while it “creates and distributes employee badges for
some state employees, it does not produce all of these.”
7 The Cabinet, on appeal, offers an alternative basis for denying the Appellant’s request because
many of her communications were “requests for information, rather than requests for records.” Since
the analysis above is dispositive of this appeal, it is unnecessary to address the Cabinet’s alternative
basis for denial.