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The question of whether the Hawaii County Police Department will have to turn over records of its investigation into new developments in the Dana Ireland case will now go to the state Supreme Court.

Lawyers representing Albert Ian and Shawn Schweitzer previously filed a motion to compel the department to release records of its investigation into Albert Lauro Jr., recently identified as being the source of DNA found on Ireland after her killing in 1991. He killed himself last month after police took a cheek swab from him.

Judge Peter Kubota last week granted the lawyers’ motion and ordered that a subpoena be issued to the department for multiple items. These included tapes, emails and written communications regarding taking the swab from Lauro on July 19, as well as what he said before, during and after.

Police said they spoke to Lauro at the station for about an hour when they took the swab but lacked probable cause to arrest him for Ireland’s murder. He killed himself at his home days later.

The department was going to have to hand over the records on Wednesday, according to Keith Shigetomi, an attorney representing Shawn Shweitzer. A hearing regarding the Schweitzer brothers’ bid for actual innocence was scheduled for Friday. It’s now been canceled.

Lawyers for the police department argue that disclosing the records could compromise their investigation. In the petition filed with the court Wednesday, they also state that the investigation is “in its infancy” and some of the records requested are incomplete or unavailable.

“Given the new developments in the underlying case, HPD is currently in the midst of completing interviews of witnesses and/or subjects, analyzing Lauro’s electronic devices, finalizing written narratives, and awaiting autopsy and toxicology reports,” the petition says. “Releasing incomplete records during this ongoing investigation would categorically disrupt the criminal investigation and could jeopardize the integrity of the investigation.”

But with Lauro now dead, Brian Black, president and executive director of the Public First Law Center, said it begs the question, “Who are they investigating?”

During Wednesday’s hearing, the attorney for Hawaii County, E. Britt Bailey, how the police investigation could still be going on, HNN reported.

“Are you going to prosecute this dead guy?” he said.

He also said he thought the county’s motions were ways to delay the Schweitzers’ civil case, HNN reported. The Schweitzers were exonerated in Ireland’s death last year after Ian Schweitzer spent 25 years in prison, according to the Innocence Project. But they have not been declared actually innocent, which needs to happen for them to seek compensation from the county.

“These guys were convicted 23 years ago and they’re seeking a determination of actual innocence and in my view, justice delayed at your behest, is justice denied,” Kubota said, according to HNN.

Black said there are other weaknesses in the police department’s argument.

The department says it should not have to release the records under an exemption of the Uniform Information Practices Act that allows government records to remain private when their release would frustrate a “legitimate government function.”

But Black said UIPA doesn’t apply in this case.

“Innocence Project didn’t ask them for the records under UIPA, they asked them for records under litigation,” he said. “That’s got a completely different standard … It’s just a completely different framework for how you look at what the obligations are, what you have to disclose and what reasons you have for not disclosing.”

Ultimately, it is up to the judge overseeing the case to decide if the police department will have to give up the records. It could take anywhere from weeks to months for the Supreme Court to decide on what to do about the police department’s petition, Black said.

Lawyers with the New York and Hawaii Innocence Projects partnered with a private DNA identification company earlier this year to track down the source of semen recovered from Ireland’s body after she was found nearly dead on a fishing trail in Puna. Investigators were able to narrow down the results to identify Lauro as the suspect, and Innocence Project lawyers say Big Island police mishandled the case by failing to take him into custody.