A district judge has ordered Stearns County to return to the FBI thousands of pages of investigative documents related to the disappearance of Jacob Wetterling, overruling objections from a coalition of news media and others that sought to review them pursuant to state open records laws.
The decision does not foreclose the release of the records, but means that they must go through the more complicated and lengthy review established by the federal Freedom of Information Act (FOIA). The Star Tribune requested the documents from the FBI more than a year ago; that request remains pending.
The case file, which contains some 10,000 documents and 56,000 pages of information, was set to be released by Stearns County in June 2017 until Patty and Jerry Wetterling, Jacob’s parents, sought to stop it in hopes of keeping 168 pages permanently sealed on the grounds that they’re overly intrusive.
It is estimated that 25 percent to well over half the documents in the case file originated with the FBI.
Stearns County Attorney Janelle Prokopec Kendall has reviewed the documents and deemed them public information under the state’s open records law. Kendall told District Judge Ann Carrott in February 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 at that time that the federal investigative records in the county’s possession 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 government, Voss said.
Mark Anfinson, who represents a variety of good government and media interests in the case, argued 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.
“We have an explicit right of access to that information under the [Minnesota Government] Data Practices Act,” he said in February. “If those records are removed, we lose that right.”
Anfinson said Thursday that he was disappointed but not surprised by the ruling.
“When the federal government comes into a state district court and says the foundations of the republic are going to be shaken if you rule against us, it’s tough to ignore that. And the judge, understandably, is going to be deferential to a federal agency’s claim,” Anfinson said.
Carrott found that federal law gave the FBI authority to loan its documents to a state agency together with the right to cancel the arrangement. She ruled that the Minnesota Government Data Practices Act includes a provision that incorporates federal law and defers to it. Her ruling is the first of its kind in Minnesota that evaluates the balance between state and federal public information laws. She cited precedents in two appellate courts, including the Eighth U.S. Circuit Court of Appeals, which governs the federal district of Minnesota, that support her findings.
Carrott has not yet ruled on the Wetterlings’ motion to suppress documents they found overly intrusive.
While Kendall determined last year that the documents were public records, at least some of them could be suppressed under federal law.
Steve Wolter, one of the Wetterlings’ attorneys, argued in February that federal law recognizes 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.
Wolter’s law partner, Doug Kelley, said Thursday that they were “quite pleased with the court’s ruling. Of the 22 documents which we asked to be withheld, 15 now will go back to the FBI,” he said. Kelley said that leaves just seven documents in state control that the Wetterlings want suppressed. “We are cautiously optimistic about our chances, and we are hoping we will be successful.”
Kelley said he expects to write to the FBI arguing that some of its records qualify as private documents. He noted that Patty Wetterling has consistently argued for maximum transparency “as long as it has some recognition to victims’ right to privacy.”
Kelley noted that Hennepin County Attorney Mike Freeman returned to the FBI its investigative documents in the fatal Minneapolis police shooting of Jamar Clark after the case was closed. “When I was the U.S. attorney that was the standard practice,” he added.
Patty Wetterling still believes that the Minnesota Legislature should pass a bill that recognizes crime victims’ rights to privacy.
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, Danny Heinrich confessed to killing the 11-year-old and burying his remains. Heinrich was sentenced to 20 years in prison.