Wetterlings, feds square off with media over investigative records

ALEXANDRIA, MINN. – Jerry and Patty Wetterling listened attentively for a couple of hours Friday as attorneys representing them, the media and the federal government argued in court over the release of sensitive documents from the 27-year investigation into the kidnapping and murder of their 11-year-old son, Jacob.

"I'm all about a maximum amount of transparency and a minimum amount of harm and trauma to the victims, and that just needs to be worked out," Patty Wetterling said after the hearing.

The Wetterlings sought to suppress the release of 168 pages of documents out of some 58,000 pages that were gathered over the course of the investigation, said their attorney, Steve Wolter. The documents they want kept private, he said, "contain intensely personal information about the Wetterlings, their family and their children."

He said they don't even mention Danny Heinrich, who confessed to killing Jacob Wetterling as part of a plea agreement related to federal child pornography charges.

Patty Wetterling said the disputed documents don't reflect any wrongdoing or negligence on the part of law enforcement, either, and she hopes the vast majority of the file is released soon. "I think you'll be impressed with all that was done," she said.

Stearns County Attorney Janelle Prokopec Kendall has reviewed the documents in dispute and last year deemed them public information under the state's open records law. A group representing several Minnesota news organizations later intervened in the case, arguing that state law requires full disclosure.

Kendall told District Judge Ann Carrott Friday that neither her office nor the Stearns County sheriff has anything to hide. She said, however, that state and federal statutes differ as to what information should be released.

Assistant U.S. Attorney Ana Voss argued that the federal investigative records in the county's possession — about 12,000 pages — belong to the FBI and must be returned without making any copies or distributing them to the public. Any release must be made through the federal Freedom of Information Act (FOIA), Voss said.

Because the case is closed, all of those documents already are available through a FOIA request, subject to restrictions in the law.

Mark Anfinson, who represents a variety of good government and media interests in the case, said that the FOIA law is broken and that forcing the public to go through the lengthy review process makes it "far more likely that I won't get access" to all of the data.

Judge Carrott noted, however, that the government's motion seeking return of the records was unopposed by Stearns County.

Anfinson responded that if the argument turns on property rights, as Voss argued, then the public has a legal right to oppose the motion because "those records are our records."

"We have an explicit right of access to that information under the [Minnesota Government] Data Practices Act," Anfinson said. "If those records are removed, we lose that right."

Anfinson told the Wetterlings before the arguments began that he has no doubt that it's appropriate for them to try to suppress the information they're focused on in the documents. He told Carrott that his clients regret having to oppose the Wetterlings, but that the legal principles at stake are significant.

Carrott must ultimately decide between two competing rights — the right to inspect government information that is public under state law vs. the Wetterlings' constitutional right to keep their personal information private.

The attorneys agreed that it's the first time such a conflict has come before the courts in Minnesota.

Anfinson said if the Wetterlings succeed in applying a constitutional right of privacy to constrain the release of information otherwise deemed public under state law, it would create chaos in the courts. Government agencies would fear releasing any information if someone claims it violates their privacy, he said.

"I don't know how the policy and framework of the Data Practices Act would survive," Anfinson said.

Wolter disputed that. He said Minnesota's public information law recognizes that other state and federal statutes might classify data as private.

If the court doesn't find that the disputed information falls within that exception, then the right to privacy found in the state and federal constitutions would render the statute unconstitutional.

Carrott noted, however, that the Wetterlings haven't challenged the constitutionality of the Data Practices Act.

Wolter said the court didn't need to go there to find that the constitutional privacy issues fit into an exception in the Data Practices Act.

Wolter said federal law and public records laws of other states recognize certain "zones of privacy" that should not be disclosed without a compelling government purpose. They include family matters, child rearing, sexuality and internal family communications.

Patty Wetterling said after the hearing that she's not afraid of the media getting all of the information in the file, and she credited media pressure with helping to bring the investigation to a close.

"The media has been very kind to us," she said, "but it's not just you that gets it."

Wetterling said that several state legislators have reached out to her and expressed a willingness to modify state public records law to create a privacy exemption for crime victims.

"I hope for maximum transparency and minimum harms to victims down the road," Wetterling said. "If it doesn't work for us, it will work for the next family."

Jacob Wetterling was kidnapped Oct. 22, 1989, in St. Joseph, Minn., as he and his brother and best friend were headed home from a local convenience store, where they had rented a video. The boy's fate and whereabouts remained a mystery until late summer of 2016, when, as part of a plea agreement to settle federal child pornography charges, Heinrich confessed to killing the 11-year-old and burying his remains. Heinrich was sentenced to 20 years in prison.

Carrott's ruling on the issue isn't expected for several weeks. Even then, it is likely to be appealed.

Dan Browning • 612-673-4493