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COA hears case of denied police records in death investigation

April 9, 2019

An Indiana Court of Appeals panel heard arguments Monday concerning a grieving father’s denied request for public records related to the mysterious death of his daughter.

Specifically, questions were raised before the panel about law enforcement’s discretion to withhold records from the public under the investigatory records exception of the Indiana Access to Public Records Act.

The issue stems from the unresolved disappearance and death of Kristy Kelley, who went missing in August 2014 and was found inside her car two months later at the bottom of Warrick County lake. Within 24 hours after then-27-year-old Kelley’s body was recovered, the Warrick County Sheriff’s Department closed her case, issued an accidental death ruling, and sealed the investigation files.

Kenneth Scales, Kelley’s father, sought some of those records from the WCSD, but his request was denied. Scales filed a petition in the Warrick Superior Court for access to the records under APRA, but was denied again.

Pleading his case before an appellate panel Monday, Scales argued the trial court erred when it granted the WCSD’s motion for summary judgment. He contends the records were not investigatory and therefore could not be withheld.

“In this particular case, it was a missing person investigation from start to finish; we don’t have to wonder about that,” Boonville attorney April Edwards argued on behalf of Scales. “It’s a closed case, it will never be opened again. There’s no purpose in having this file closed.”

Edwards noted that the term “investigatory records” is defined in APRA as an investigation by law enforcement of a criminal matter, which she argued would stop the sheriff from claiming the investigatory exception in the present case.

But Craig McKee, counsel for the sheriff’s department, contended that it would make no difference if the case had been a considered a homicide rather than a missing persons investigation.

“There are only three cases that shine on this in the past 30 years,” McKee said. “The whole notion that it must be the investigation of a crime is overruled in all counts.”

McKee argued that it did not matter that the Indiana State Police produced requested documents to Scales, as each law enforcement agency is entitled to exercise its own discretion.

He noted that Scales’ request of the sheriff’s department included access to video surveillance footage during the investigation, copies of all police reports and supplements, interview statements, all evidence logs, documents transmitted by other law enforcement agencies, and “copies of all evidence generated during the investigation of the disappearance of Kristy Kelley and investigation of her death.”

“Our contention is that it is not necessary to produce the file and produce an inventory of the file when the request on its face seeks the entirety of the investigation,” McKee said.

He further stated that then-Warrick County Sheriff Brett Kruse was not prepared to reveal any statements procured by law enforcement due to the large scale of the case and the number of individuals who assisted, and that Kruse therefore properly exercised his discretion to withhold the reports.

But Edwards maintained that the sheriff’s department improperly relied on conclusory statements in an affidavit submitted by Kruse, and that the decision to withhold the records was arbitrary and capricious.

She also disagreed with the sheriff department’s assertion that Scales would harass individuals investigated in Kelley’s case, arguing that claim was without merit and mere speculation.

Arguments were posed Monday to a panel consisting of appellate judges John Baker, Melissa May and Elaine Brown at the University of Southern Indiana.

“This truly is a case of first impression in Indiana,” Brown said. “There is not factual scenario just like this. There have been other cases decided under APRA, but not one that fits these facts, with a private individual seeking a file from the sheriff’s department from a closed investigation that was never a criminal investigation at all.”

Edwards agreed, pointing out that very little caselaw exists for the interpretation and application of APRA in cases such as Kenneth Todd Scales v. Warrick County Sheriff's Department, 18A-MI-01590.

The full argument may be viewed here.

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