The dispute over whether Jacob Wetterling's family can seal 168 pages of investigative documents on his 1989 abduction and killing has expanded to potentially include thousands of pages in the Stearns County case file.
At issue is whether the documents in the county file that originated with the Federal Bureau of Investigation must be returned to that agency and be subject to release under federal laws. Lawyers say those documents make up more than half the case file.
In an on-the-record hearing by telephone Monday, District Court Judge Ann Carrott told media lawyer Mark Anfinson to file his written brief on the case no later than Nov. 10. Doug Kelley, the attorney for the Wetterling family, will then have about two weeks to respond. A hearing to address the issue will be set for either Dec. 7 or 8, according to those who were in on the call.
The nearly three-decade mystery over what happened to Jacob ended a year ago when Danny Heinrich, a former Paynesville, Minn., resident, acknowledged abducting the 11-year-old at gunpoint on a rural road near Jacob's St. Joseph, Minn. home, and killing him. Once the case was closed, it meant the investigative file would be open to the public.
But as crime victims, the Wetterlings were allowed to see the file before it was released. The family has asked Carrott to withhold some of the documents, claiming they are overly personal.
Anfinson said he will address two questions when filing his brief: Do the Wetterlings have a constitutional right to privacy, and do the FBI records have to go back to the agency? He will argue "no" on both issues, he said.
"We got what we wanted in terms of the procedure, now we get to the merits," Anfinson said after the 30-minute conference call that was not open to the media.
Last month, Carrott allowed open government and media organizations, represented by Anfinson, to formally intervene in the lawsuit so they could push for release of all the documents in the Stearns County file. Carrott has issued a temporary order barring their release pending resolution of the dispute. It appears now that a ruling will come no sooner than late December. Nothing will be released until Carrott decides the matter.
Behind the scenes, the FBI has sent letters to Stearns County Attorney Janelle Kendall and Sheriff Don Gudmundson demanding the return of all FBI documents in the file. Kendall, who has previously said the entire file is public, has declined the FBI request.
Kendall was set to release the file — minus the redacted identities of hundreds of sexual assault victims whose names had been forwarded after Jacob's abduction — in early June, until the Wetterlings sued to keep the 168 pages private.
Attorneys representing the parties say what happens with the FBI documents will affect more than half of what is in the file. For example, Kelley said some 12,000 pages are FBI interview reports.
He also wondered whether documents that are state-federal hybrids would go back to the FBI.
If the documents are returned to the agency, they are subject to the federal Freedom of Information Act, not Minnesota law. Kelley said that act has privacy protections for crime victims, such as the Wetterlings.
Attorneys in the case are now waiting to see if the FBI makes a formal move in state or federal court to reclaim its portion of the file.
"The three rings of this will go to four rings or more if the Justice Department comes in," Anfinson said.
Anfinson's clients include the Minnesota Coalition on Government Information, the Silha Center for the Study of Media Ethics and Law, the Minnesota chapter of the Society of Professional Journalists, and the state newspaper and broadcasters associations, along with KSTP-TV, WDIO-TV, KAAL-TV, Minnesota Public Radio and the St. Paul Pioneer Press.
The Star Tribune is a member of the Minnesota Newspaper Association.