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Scales v. Warrick County Sheriff's Department

Court of Appeals of Indiana

April 17, 2019

Kenneth Todd Scales, Appellant-Plaintiff,
Warrick County Sheriff's Department, Appellee-Defendant

          Appeal from the Warrick Superior Court Cause No. 87D01-1709-MI-1498 The Honorable J. Zach Winsett, Judge

          Attorney for Appellant April L. Edwards Boonville, Indiana

          Attorney for Appellee Craig M. McKee Wilkinson, Goeller, Modesitt Wilkinson & Drummy, LLP Terre Haute, Indiana

          BAKER, JUDGE.

         [¶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.


         [¶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 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, 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 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 ...

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