More than five years after the Boardwalk Apartments fire, key evidence used in the criminal case against Jason Rose has still not been released to the public.

Douglas County District Attorney Charles Branson’s office denied a Dec. 22 Journal-World open records request for the arson report created by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The report, along with the testimony of ATF agents, helped prosecutors convict Rose on three counts of manslaughter for setting the fire that leveled the Boardwalk Apartments, killing three and injuring 17 others on Oct. 7, 2005.

Branson’s denial letter cited exemptions in open records laws that allow agencies to withhold records that could interfere with court proceedings. A request by the Journal-World to the ATF was also denied for similar reasons, and an appeal of that decision has been filed. Results from that appeal could take several weeks.

In e-mails to the Journal-World, Branson wrote that the case is still active because Rose has until March 2011 to file an appeal in federal court. Rose, with credit for time served in jail prior to his trial, is eligible for parole in June 2014. He was sentenced to 10 years.

“We denied the request because that document we consider to be work product once it comes into our file, that the original document is either in the hands of ATF or in the court transcript,” Branson said Wednesday afternoon. “Our position is that our file remains open until all the appeals or time for appeals has passed. And that is the response that we have provided to ATF.”

In September, on the eve of the fifth anniversary of the Boardwalk fire, Branson spoke at length with the Journal-World about the case.

Keeping the arson report secret baffled Ken Bunting, director of the National Freedom of Information Center.

“It’s absolutely insane,” said Bunting, calling the rationale of the ATF and Branson “a huge stretch.”

Bunting said he has never seen a prosecutor deny records so long after a conviction.

Kansas City media attorney Mark Johnson echoed Bunting’s assessment.

“I think the D.A. is not supported by law,” said Johnson, who stressed the intent of open records laws. “They are to be construed liberally.”

At Rose’s 2007 trial, ATF agents testified that the fire started on a second-floor balcony of the apartment complex and that the fire was intentionally set. Rose, in a confession that he later recanted, told police that he set the fire in that general location.

Rose’s defense attorney called a fire science consultant to the stand at Rose’s trial who criticized the ATF agent’s testimony, citing inconsistencies in the conclusions about where, and how the fire started.

The attorney who handled Rose’s appeals, Kari Nelson, said she did not have the ATF arson report. Rose’s trial attorney, Ron Evans, provided through the Kansas State Board of Indigent Defense, said his office may still have the report, and could possibly provide the document when and if it is located.

The ATF arson report has never been released and is not included in trial transcripts available to the public.