26-ORD-082 – Arielle Zionts/Cabinet for Health and Family Services

Opinion Content:

March 10, 2026

In re: Arielle Zionts/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 records that do not exist.

Open Records Decision

Arielle Zionts (“the Appellant”) submitted a request to the Cabinet for certain
records, which had been submitted to the Centers for Medicare and Medicaid Services
“as part of Kentucky’s application to the Rural Health Transformation Program.” 1 In
response, the Cabinet provided the “Project Abstract Summary” and the “Project
Narrative Attachment Form” but denied all other parts of the request as preliminary
drafts under KRS 61.878(1)(i). This appeal followed.

On appeal, the Cabinet states its grant application was finalized and approved,
meaning it is no longer a preliminary draft under KRS 61.878(1)(i). The Cabinet
therefore has provided those records to the Appellant. Thus, this appeal is moot as to
the records provided. See 40 KAR 1:030 § 6 (“If the requested documents are made
available to the complaining party after a complaint is made, the Attorney General
shall decline to issue a decision in the matter.”). However, the Appellant asserts that
the Cabinet still has not provided all responsive records.

Once a public agency states affirmatively that no additional 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

1 The Appellant specified that the request included the “Application for Federal Assistance”;
“Budget Information for Non-Construction Programs”; “Project Abstract Summary”; “Project
Narrative Attachment Form”; “Budget Narrative Attachment Form”; “Disclosure of Lobbying
Activities”; “Project/Performance Site Location(s)”; and “Other Attachments Form.”

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 additional records exist, such as the existence of a statute or
regulation requiring the creation of the records 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 exist or should exist is insufficient to make a prima
facie case that the records actually do exist. See, e.g., 22-ORD-040.

Here, the Appellant identifies six categories of records she has not received. 2
However, the Appellant does no more than assert that she should have received those
records. This does not establish a prima facie case that the records exist. Thus, the
Office cannot find that the Cabinet violated the Act by not providing records it does
not possess.

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/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General

Arielle Zionts
Peyton Sands, Staff Attorney III, Cabinet for Health and Family Services
Natalie Nelson, Staff Attorney I, Cabinet for Health and Family Services
Evelyn L. Miller, Legal Secretary, CHFS Open Records, Cabinet for Health and
Family Services

2 These include the “Application for Federal Assistance”; “Budget Information for Non-Construction
Programs”; “Budget Narrative Attachment Form”; “Disclosure of Lobbying Activities”;
“Project/Performance Site Location(s)” and “Other Attachments Form.”