                                                                                 FILED
                                                                             Apr 17 2019, 8:35 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEY FOR APPELLEE
April L. Edwards                                            Craig M. McKee
Boonville, Indiana                                          Wilkinson, Goeller, Modesitt
                                                            Wilkinson & Drummy, LLP
                                                            Terre Haute, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Kenneth Todd Scales,                                        April 17, 2019
Appellant-Plaintiff,                                        Court of Appeals Case No.
                                                            18A-MI-1590
        v.                                                  Appeal from the Warrick Superior
                                                            Court
Warrick County Sheriff’s                                    The Honorable J. Zach Winsett,
Department,                                                 Judge
Appellee-Defendant                                          Trial Court Cause No.
                                                            87D01-1709-MI-1498



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019                              Page 1 of 12
[1]   Kenneth Scales filed a petition for access to public records, seeking documents

      from the Warrick County Sheriff’s Department (the Department) related to the

      disappearance and death of his daughter, Kristy Kelley. The Department

      moved for summary judgment, arguing that the records to which Scales sought

      access were investigatory records that the Department could withhold at its

      discretion. The trial court ruled in favor of the Department, and Scales now

      appeals. Finding that the documents are not investigatory records as described

      by our General Assembly, and consequently, that they may not be withheld

      from public disclosure at the Department’s discretion, we reverse and remand

      with instructions.


                                                      Facts       1




[2]   The following represents the publicly known facts accumulated by the

      Department in its missing person’s investigation.


[3]   On or about August 15, 2014, Kelley went missing. Kelley lived with her

      parents and two children in Boonville and worked at the local CVS. Three years

      before her disappearance, Kelley had divorced her daughter’s father, Clay

      Kelley, because of finances and Clay’s alleged drinking problem. Clay’s father

      worked as a deputy for the Department, and Scales worked as a jailer for the




      1
        We held oral argument in this case at the University of Southern Indiana in Evansville on April 8, 2019.
      We thank both parties for their stimulating discussion, and we thank the University of Southern Indiana, its
      faculty, and its students for their warm and generous hospitality.

      Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019                               Page 2 of 12
      Department. A few weeks before Kelley’s disappearance, Clay vandalized

      Kelley’s car and called her a bad mother. The two frequently argued, usually

      via text message. One text message that Kelley sent to Clay on August 9, 2014,

      shortly before her disappearance, said that “you would probably kill me and

      hide my body.” Appellant’s App. Vol III p. 36.


[4]   The night before she disappeared, Kelley went out to dinner with friends. At

      around 11 p.m., Kelley went to the VFW in Boonville because her friend, Terra

      Ellis, was bartending. When the bar started closing procedures, Kelley went to

      use the restroom and then left the VFW. Dennis Hill, the bar janitor, was

      present at the facility and was the last person who saw Kelley. At 3:30 a.m.,

      Hill found Kelley’s cell phone in the restroom. The last text message Kelley sent

      was time-stamped at 1:38 a.m. The police later interviewed Clay, who admitted

      that he and Kelley had been arguing over her current boyfriend just before she

      went missing. The police reviewed Kelley’s phone for her last text messages,

      which revealed that Clay had been trying to meet with Kelley that night, but

      Kelley did not want to. Those very text messages had been deleted from Clay’s

      phone. Surveillance video footage from a nearby restaurant shows a vehicle that

      appears to be Kelley’s driving westward.


[5]   The next day, after Kelley did not report to work, Scales became concerned and

      contacted the police. Local law enforcement opened a missing person’s

      investigation. Shortly thereafter, the FBI, the Indiana State Police, and the

      Boonville Police Department became involved. Additionally, Scales requested

      that a sonar search group assist with the search at different locales. At all times,

      Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019         Page 3 of 12
      law enforcement referred to and classified Kelley’s case as a missing person’s

      investigation and not as a criminal investigation. The agencies worked together

      to acquire evidence, conduct interviews with potential witnesses, and gather

      documents. Sheriff Brett Kruse represented the Department throughout the

      entirety of the investigation. No criminal charges were ever filed.


[6]   More than one month later, on September 16, 2014, law enforcement

      discovered Kelley’s vehicle at the bottom of a lake, with her body in the

      backseat. The vehicle had significant damage to the front end, the keys were

      found on Kelley’s person and not in the ignition, and there were no signs of foul

      play. Less than twenty-four hours after Kelley’s body was found, the coroner

      issued a report declaring that Kelley’s death was the result of accidental

      asphyxiation caused by drowning. The Department closed its investigation.


[7]   On September 26, 2017, Scales filed a petition for access to records pursuant to

      the Indiana Access to Public Records Act (APRA). Specifically, Scales sought

      information related to the missing person’s investigation surrounding Kelley’s

      disappearance, discovery, and accidental death. Additionally, on October 11,

      2017, Scales served a subpoena duces tecum on the Department, requesting the

      following information:


              1. A copy of the video surveillance footage evidencing Kristy
              Kelley’s vehicle after leaving the VFW on August 15, 2014.

              2. Copies of any and all police reports, and supplements generated
              in the investigation of the missing person case involving Kristy
              Kelley, including any reports generated after she was subsequently


      Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019       Page 4 of 12
              located on September 16, 2014.

              2. [sic] Copies of any and all interview statements.

              3. Copies of all evidence logs.

              4. Copies of any and all documents received by you from either
              the Indiana State Police and/or the FBI with respect to their
              investigation conducted on or after August 15, 2014.

              5. Copies of all evidence generated during the investigation of the
              disappearance of Kristy Kelley and investigation of her death.

      Appellant’s App. Vol. II p. 16.


[8]   On November 8, 2017, Sheriff Kruse responded to the petition for access to

      records and the subpoena duces tecum with the following affidavit:


              1.    My name is Brett Kruse. I am the duly elected Sheriff of
              Warrick County, Indiana, and I have served in that capacity since
              January 1, 2011.

              2.     In my capacity as Sheriff, I have received public records
              requests from Kenneth Scales (or representatives on his behalf) for
              access to certain law enforcement investigatory records generated
              and retained by my office following the disappearance of his
              daughter, Kristyn Kelley, on or about August 15, 2014. I have
              declined to provide those records to the requestor based on
              Indiana’s Public Records Act that grants to a law enforcement
              agency discretion whether to release such records.

              3.     Although Indiana’s law does not require an explanation of a
              Sheriff’s exercise of discretion, I state for this record that I have
              declined the request for the following reasons:

                       a)     I believe the investigative records contain personal
                       information of individuals who were interviewed or who
                       provided information in connection with the investigation
                       of Ms. Kelley’s disappearance and disclosure of their
                       identity and/or personal information will subject them to

      Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019             Page 5 of 12
                        additional investigation, interview or harassment as part of
                        a privately funded and redundant investigation;

                        b)     I consulted with the Prosecutor during the course of
                        the investigation and it ultimately was determined in 2014
                        that there was insufficient evidence produced by the
                        investigation to charge any individual with a crime;

                        c)     I believe the reports included extraneous material,
                        including the mental impressions or notes of investigating
                        officers, and material gathered that ultimately was irrelevant
                        to the investigation.

               4.    I respectfully decline to produce such records voluntarily
               because I believe to do so violates my responsibility as Sheriff.


       Id. at 18.

[9]    Additionally, on November 13, 2017, the Department filed a motion to quash

       the subpoena duces tecum and a motion to dismiss the cause of action for

       failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). On January 19,

       2018, Scales responded by opposing the Department’s motions to dismiss and

       to quash and by filing a motion to strike Sheriff Kruse’s affidavit from the

       record. On the same date, Scales moved for the trial court to preserve the

       contents of the Department’s file on Kelley and to conduct an in camera review

       of the materials to which he sought access.


[10]   After conducting a hearing on March 9, 2018, for all pending motions, the trial

       court ordered the Department to preserve all materials related to the

       investigation into Kelley’s disappearance, granted the Department’s motion to

       quash the subpoena duces tecum, denied Scales’s motion to conduct an in


       Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019          Page 6 of 12
       camera review of the materials, denied Scales’s motion to strike Sheriff Kruse’s

       affidavit, and took the Department’s motion to dismiss under advisement.


[11]   On April 6, 2018, the trial court issued an order holding that the Department’s

       motion to dismiss would be treated as a motion for summary judgment since an

       item outside the pleadings—Sheriff Kruse’s affidavit—had been submitted for

       consideration. Both parties filed their respective briefs and evidence for the

       summary judgment proceedings. In sum, the Department, in line with

       statements made by Sheriff Kruse in his affidavit, argued that the records Scales

       sought were investigatory records that, under the APRA, the Department had

       the discretion to withhold from public disclosure. Scales argued that because

       there was never a criminal investigation, the Department could not use the

       APRA’s investigatory records exception to withhold Kelley’s files from public

       disclosure. On June 13, 2018, the trial court granted the Department’s motion

       for summary judgment. Scales now appeals.


                                Discussion and Decision
[12]   Scales raises multiple arguments, which we consolidate and restate as whether

       the trial court erred when it granted the Department’s motion for summary

       judgment.2




       2
        Scales also raises two separate arguments, including that the trial court erred when it granted the
       Department’s motion to dismiss and when it quashed his subpoena duces tecum. We decline to address the
       dismissal argument because the trial court properly converted the motion to dismiss into a motion for
       summary judgment after matters outside the pleadings were presented for review. See generally Ind. Trial Rule

       Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019                               Page 7 of 12
                                    I. Standard of Review
[13]   Our standard of review for a motion for summary judgment is well settled:


               [W]hen we review a grant or denial of a motion for summary
               judgment, our standard of review is the same as it is for the trial
               court. The moving party must show there are no genuine issues of
               material fact and it is entitled to judgment as a matter of law. If the
               moving party carries its burden, then the non-moving party must
               present evidence establishing the existence of a genuine issue of
               material fact. In deciding whether summary judgment is proper,
               we consider only the evidence the parties specifically designated to
               the trial court. We construe all factual inferences in favor of the
               non-moving party and resolve all doubts regarding the existence of
               a material issue against the moving party.


       Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015) (internal

       citations and quotations omitted).


                        II. Access to Public Records Act
[14]   The APRA ensures that Indiana citizens have access to the “full and complete

       information regarding the affairs of government and the official acts of those

       who represent them as public officials and employees.” Ind. Code § 5-14-3-1.

       And when someone requests records pursuant to the APRA, it shall be

       “liberally construed to implement this policy and place the burden of proof for




       12(B). We also decline to address the quashing argument because the subpoena duces tecum essentially
       functioned as another petition to access public records, the core issue of the summary judgment motion. As
       such, analyzing the legal merits of the subpoena duces tecum claim would be redundant.

       Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019                              Page 8 of 12
       the nondisclosure of a public record on the agency that would deny access to

       the record and not on the person seeking to inspect and copy the record.” Id.

       Scales is the person requesting records related to his daughter’s disappearance,

       and the Department is the public agency denying access. See I.C. § 5-14-3-

       2(q)(6) (defining a public agency as “[a]ny law enforcement agency, which

       means . . . the police or sheriff’s department of a political subdivision[]”).


[15]   While the general rule is that government documents are open to public access,

       there are exceptions. The exception relevant to this case is found in section 5-

       14-3-4(b):


               (b) Except as otherwise provided by subsection (a), the following public
               records shall be excepted from section 3 of this chapter at the discretion of a
               public agency:

                        (1) Investigatory records of law enforcement agencies or private
                        university police departments. . . .


       (Emphasis added). Therefore, if a member of the public requests access to the

       investigatory records of a law enforcement agency, the agency has discretion to

       grant or deny that request.


[16]   We consider the following when reviewing a denial of access to public records:


               In determining whether the record is exempt from disclosure, the
               court uses a de novo standard of review, and the burden of proof is
               on the public agency to sustain its denial. The agency meets its
               burden of proof by: (1) proving that the record falls within a
               category exempted by section 4(b); and (2) establishing the content
               of the record with adequate specificity and not by relying on a
               conclusory statement or affidavit[.]


       Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019           Page 9 of 12
       Lane-El v. Spears, 13 N.E.3d 859, 868 (Ind. Ct. App. 2014) (internal citations

       and quotations omitted).


                               III. Investigatory Records
[17]   Scales argues that the Department has not proved that the records he sought fell

       under the investigatory records exception.


[18]   The APRA defines investigatory records as “information compiled in the

       course of the investigation of a crime.” I.C. § 5-14-3-2(i). The rules of statutory

       interpretation mandate that we assign words their plain and ordinary meaning

       unless the statute provides specific definitions. Montgomery v. State, 878 N.E.2d

       262, 266 (Ind. Ct. App. 2007). Here, the APRA’s definition of investigatory

       records preempts any plain and ordinary meaning of the word “investigatory.”

       The documents in contention must have been accumulated in the course of the

       investigation of a crime. If there is no criminal investigation, the documents

       cannot be withheld at the police or sheriff’s department’s discretion pursuant to

       the investigatory records exception.


[19]   In this instance, there was no criminal investigation, and the Department

       conceded to this fact numerous times. The record shows that at all times, law

       enforcement from the FBI, the Indiana State Police, and the Boonville Police

       Department referred to and classified Kelley’s case as a missing person’s

       investigation. No criminal indictments or informations were ever issued in the

       case, and Sheriff Kruse, in his role as representative of the Department, even

       Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019        Page 10 of 12
       concluded that “I consulted with the Prosecutor during the course of the

       investigation and it was ultimately determined in 2014 that there was

       insufficient evidence produced by the investigation to charge any individual

       with a crime[.]” Appellant’s App. Vol. II p. 18. The fact that the coroner’s office

       declared Kelley’s death an accidental death just twenty-four hours after her

       corpse was discovered reinforces the fact that there was no criminal

       investigation. Therefore, we can only conclude that the Department did not

       have the statutory authority to withhold Kelley’s file pursuant to the

       investigatory records exception.


[20]   The Department relies on three cases in which we held that the investigatory

       records exception applies to demonstrate that it should be accorded even

       broader discretion to withhold the requested documents: Heltzel v. Thomas, 516

       N.E.2d 103 (Ind. Ct. App. 1987); Althaus v. Evansville Courier Co., 615 N.E.2d

       441 (Ind. Ct. App. 1993); and Lane-El v. Spears, 13 N.E.3d 859 (Ind. Ct. App.

       2014). However, one key fact distinguishes Kelley’s case from these cases. In

       Heltzel, the investigative reporter was seeking documents about the condition

       and location of a body that may have been part of a criminal investigation. In

       Althaus, a newspaper was denied access to records about a police officer’s

       suicide even though it was unclear whether there was a criminal investigation

       after the coroner’s office issued its report. And in Lane-El, the defendant, a

       convicted sex offender, was denied access to records surrounding the

       investigation into his crimes because the documents were clearly compiled in

       the course of a criminal investigation. In other words, unlike these three cases


       Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019       Page 11 of 12
       where there may have been or there was a criminal investigation, Kelley’s case

       was decisively not a criminal investigation.


[21]   The facts of this case do not neatly fit within the investigatory records exception

       analyses laid out by this Court in those three cases. The APRA provides a

       precise definition of investigatory records. The Department and all law

       enforcement personnel connected with Kelley’s missing person’s investigation

       clearly stated that this was not a criminal investigation, and the coroner’s

       office’s report resolutely determined that there were no criminal circumstances

       surrounding Kelley’s accidental death after just twenty-four hours. Thus, the

       documents related to her disappearance and death are not investigatory records

       as defined by our General Assembly.


[22]   Accordingly, our inquiry ends there. Because the Department has failed to meet

       its burden to show that the documents Scales sought fell under the APRA’s

       investigatory records exception, its invocation of this exception fails as a matter

       of law. We reverse the trial court’s order and remand with instructions to enter

       judgment in Scales’s favor.


[23]   The judgment of the trial court is reversed and remanded with instructions.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MI-1590 | April 17, 2019       Page 12 of 12
