As Halloween draws to a close, I'm reminded of the strangest and most "haunting" open records appeal presented to the Office of the Attorney General in my years of service.
In 2006, Lexington Fayette Urban County Government denied local author Betty Boles Ellison access to the investigative file in the then 41 year old unsolved murder of Lexington socialite Mary Marrs Cawein. LFUCG classified the case as open.
https://ag.ky.gov/orom/2006/06ORD265.doc
Ellison requested access to the file as part of her research for a book, later entitled "Justice Delayed, Justice Denied," about unsolved murders in the Bluegrass.
LFUCG disclosed investigative files involving the 1961 unsolved murder of Transylvania student Betty Gail Brown — discovered in her car on a campus parking lot strangled to death with her own bra — and the mysterious 1982 death of horseman Jean-Michel Gambet — whose body was discovered in a kneeling position partially outside his burned out car in a rural area of Lexington — but denied Ellison access to the Cawein files.
The gruesome details of Cawein's 1965 murder by carbolic acid poisoning, coupled with the lurid details of her final hours, set against a backdrop of marital infidelities in the swinging Lexington country club society of the mid-60s, is the stuff of a potboiler made-for-TV movie.
https://radio.scout.fm/true-crime-radio/the-trail-went-cold-episode-56-…
https://www.reddit.com/r/UnresolvedMysteries/comments/7smnit/comment/dt…
https://www.kyforward.com/mary-cawein%E2%80%99s-murderer-was-%E2%80%98c…
More startling, from an open records perspective, was LFUCG's position that, given the availability of new scientific investigative methodology, such as DNA testing, the case was being considered for possible re-investigation. LFUCG denied Ellison access to the Cawein murder file on this basis.
The Attorney General rejected LFUCG's argument, concluding that — given the passage of time, and the corresponding likelihood that the Cawein case would never be solved — "the public's right to know how the Division of Police, or its predecessor agency, executed its duty to investigate this highly publicized murder must be served, notwithstanding the fact that the case is considered 'open.'"
LFUCG appealed. The case was settled. Ellison belatedly obtained the records (perhaps an unintended double meaning for the title of her book, "justice delayed"). And the gruesome case remains unsolved.
The silver lining in these dark and brooding Halloween clouds was the subsequent development of a very tough standard for a law enforcement agency's invocation of the "ongoing investigation" exception to the open records law, KRS 61.878(1)(h).
https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=49156
In a 2013 case, City of Fort Thomas v Cincinnati Enquirer, the Kentucky Supreme Court held that the law enforcement exception "is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, it's release poses a concrete risk [not a "hypothetical or speculative concern"] of harm to the agency" in future prosecution or enforcement action.
https://caselaw.findlaw.com/ky-supreme-court/1643297.html
Under this legal standard, agencies are obligated to sift through an open investigative file, release any records for which they cannot articulate a concrete risk of harm and withhold only those records for which the can articulate a concrete risk of harm to the enforcement action.
LFUCG's 2006 argument in support of its denial of access to the 41 year old investigative file in the shocking murder of a Lexington socialite would clearly fail under this standard.
For Mary Marrs Cawein, who lies in unquiet repose some 54 years later, justice delayed was indeed justice denied.
