Katie Stancombe for www.theindianalawyer.com

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.

Bring State and Local Partners Together to Increase Collaboration

as part of the Trump Administration’s Winning on Reducing Food Waste Month, the U.S. Department of Agriculture (USDA), the U.S. Environmental Protection Agency (EPA), and the U.S. Food and Drug Administration (FDA) announced the release of a federal interagency strategy to address food waste. The agencies held an event at EPA headquarters to hear from state, local and community leaders and other stakeholders on how all levels of government can work together to reduce food waste.

“Our nation’s agricultural abundance should be used to nourish those in need, not fill the trash,” said U.S. Agriculture Secretary Sonny Perdue. “As the world’s population continues to grow to nearly 10 billion people by 2050 and the food systems continue to evolve, now is the time for action to educate consumers and businesses alike on the need for food waste reduction. I look forward to what the future holds on this initiative and how we can work together to change the hearts and minds of Americans to reduce food waste.”

“With the release of this important interagency strategy, the Trump Administration continues to advance its efforts to reduce food waste and redirect excess food away from landfills and instead use it to feed communities and fuel our economy,” said EPA Administrator Andrew Wheeler. “The new strategy prioritizes six key action areas, such as improving consumer education and food labeling, that will help us maximize the value of our food resources. Today’s event brought together key federal, state, and private partners to further collaboration on innovative food waste solutions.”

“The issue of food safety and food waste are intertwined, with research showing that there is confusion over the meaning behind date labeling terminology on food packages that have an adverse effect on food waste. Contrary to popular beliefs, date labeling on food packages are often intended to communicate time ranges for optimal food quality, not safety,” said FDA Deputy Commissioner Frank Yiannas.“ With more than one-third of all available food uneaten through waste or loss and 1 in 6 Americans suffering a foodborne illness each year, it’s clear that many people are unnecessarily discarding food in fear of food safety issues. This is why the FDA is focused on taking steps to make date labeling on foods clearer and easier for consumers to determine when a food should be discarded. We remain committed to working with the EPA and USDA to better educate Americans on how to reduce food waste and how to do it safely.”

The interagency strategy announced today, Winning on Reducing Food Waste FY 2019-2020 Federal Interagency Strategy, includes six key priority areas the agencies will work together on over the next year:

1. Enhance Interagency Coordination
2. Increase Consumer Education and Outreach Efforts
3. Improve Coordination and Guidance on Food Loss and Waste Measurement
4. Clarify and Communicate Information on Food Safety, Food Date Labels, and Food Donations
5. Collaborate with Private Industry to Reduce Food Loss and Waste Across the Supply Chain
6. Encourage Food Waste Reduction by Federal Agencies in their Respective Facilities

Event attendees heard remarks from Secretary Perdue, Administrator Wheeler, and Deputy Commissioner Yiannas. A panel discussion titled “Lessons Learned from States, Cities, and Organizations in Reducing Wasted Food” was followed by an information exchange among all participants on specific community efforts to reduce food waste and additional support needed to advance state, tribal, and local initiatives. In addition, state and local leaders signed a pledge to work together with federal partners to build new or upon existing efforts to address food loss and waste in the U.S. At the event, the agencies also announced a joint agreement signed between the agencies and ReFED, Inc. to better evaluate and improve upon strategies to reduce food loss and waste.

Today’s announcements and stakeholder event were key steps in moving forward with the formal agreement (PDF, 579 KB) signed by all three federal agencies in 2018 announcing the Winning on Reducing Food Waste Initiative. The Winning on Reducing Food Waste Initiative is a collaborative effort among USDA, EPA, and FDA to reduce food loss and waste through combined and agency-specific action. Individually and collectively, these agencies contribute to the initiative, encourage long-term reductions, and work toward the goal of reducing food loss and waste in the United States. These actions include research, community investments, education and outreach, voluntary programs, public-private partnerships, tool development, technical assistance, event participation, and policy discussion.

USDA, EPA, and FDA invite public and private partners to participate in Winning on Reducing Food Waste Month through the following:

• Join the conversation: Share your efforts with the #NoWastedFood hashtag in your social media posts throughout the month.
• Educate your community: Learn about USDA, EPA, and FDA programs and resources to reduce food loss and waste.
• Be a U.S. Food Loss and Waste 2030 Champion: Join other corporate and business leaders who have made a public commitment to reducing food loss and waste in their U.S. operations by 50 percent by the year 2030.

In the U.S., more than one-third of all available food goes uneaten through loss or waste. Food is the single largest type of waste in our daily trash. In recent years, great strides have been made to highlight and mitigate food loss and waste, but the work has just begun. When food is tossed aside, so too are opportunities for economic growth, healthier communities, and environmental protection – but that can change through partnership, leadership, and action. Today’s announcement follows a Presidential Message from President Trump acknowledging the month of April as Winning on Reducing Food Waste Month and encouraging public action and participation from all sectors.

For more information on the Trump Administration’s Winning on Reducing Food Waste Initiative, visit:

www.epa.gov/reducefoodwaste
www.usda.gov/foodlossandwaste
www.fda.gov/Food/ResourcesForYou/Consumers/ucm628706.htm