Hard cases make bad law.
Don Gemberling has thought about that hoary adage “about 50 times” since he learned last week that Patty and Jerry Wetterling are suing to block the release of the voluminous investigative file into the 1989 kidnapping and murder of their son Jacob.
It’s not that Gemberling isn’t sympathetic to the Wetterlings, who say that about 3,000 pages of the 56,000-page file contain private and sensitive information that should not be made available to the public.
But as the former director of the Information Policy Analysis Division at the Department of Administration, Gemberling spent more than three decades working with, and helping shape, the law that governs the classification of government records, the Minnesota Government Data Practices Act.
And under the plain terms of the DPA, Gemberling thinks that the investigative files — already redacted by Steans County officials — should be made public now that the investigation into Jacob Wettlerling’s murder is closed.
“If the Wetterlings win, the practical effect is that we return to 1981 and a situation where the Legislature spent a whole lot of time not being able to come up with a compromise on [how to classify] law enforcement data,” said Gemberling, who currently serves as secretary of the Minnesota Coalition on Government Information, a nonprofit group that works to educate the public on issues related to public records and government transparency.
Although Douglas County District Court Judge Anne Carrott has yet to rule on the merits of the Wetterlings’ lawsuit, on June 2 she granted a temporary injunction which bars Stearns County officials from releasing the files and has agreed to conduct an in-camera review of the documents at issue.
But even if Carrott ultimately rejects the Wetterlings arguments, some experts worry that blowback from such a ruling — propelled by public sympathy for the long suffering Wetterling family — could lead lawmakers to amend the Data Practices Act and, potentially, alter its fundamental presumption that the public has a right to access most government records.
“This is the kind of thing that people respond to in a very visceral way. But it is not a good way to make legal policy,” opined Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota.
In Kirtley’s view, it is “very unlikely” that the Wetterlings will be able to persuade the judge that, under the plain language of the Data Practices Act, the investigative file ought to be deemed non-public.
“No one — and certainly not me — will say that the Data Practices Act is a model of clarity,” Kirtley said. “It’s a very difficult statute to parse. But here’s my point: Statutory language is the first thing you look at, and I just don’t see any grounds for an exemption.”
The judge could still seal portions of the file if she buys another argument advanced by Doug Kelley, the Wetterlings’ lawyer: If the release of the file is compelled by the DPA, Kelley contends, then the Data Practices Act should be declared unconstitutional as applied because such a release violates the Wetterlings “legitimate constitutional privacy rights.”
In Kirtley’s view, Kelley is basically asking the court to “invent a constitutional right to supersede the statute.”
“That’s a big deal,” she said, adding that she hopes someone — a media organization or other entity — will decide to intervene in the Wetterlings’ lawsuit and defend the DPA’s presumption of public access.
To date, that has not happened, according to Mark Anfinson, a Minneapolis lawyer who often represents newspapers and other media outlets in freedom of information fights.
“It’s a strange thing. Nobody has come forward,” Anfinson said Wednesday. “I’ve talked to some media people but there is a really profound deference and concern for the Wetterlings. Nobody wants to get into a situation where it looks like they’re insensitive.”
That said, Anfinson added, he’s also heard mounting concerns in recent days that, absent some push back, the court might just recognize a constitutional right to privacy.
“You know where that would go: Every time somebody didn’t want a criminal record or personal record or some other government record released, they would make an argument that their constitutional rights to privacy are being violated,” Anfinson said. “Under that scenario, the public and the media lose because you can’t always afford to litigate this stuff.”
Anfinson, like the others interviewed for this story, said he understands why the Wetterlings want to keep parts of the investigative file out of public eyes.
But at the same time, he said, the public has a valid interest in getting a more complete picture of how the Stearns County Sheriff Department’s conducted its investigation into Jacob Wetterling’s disappearance, which remained unsolved until his killer, Danny Heinrich, confessed to the murder last fall.
“There has been a ton of seemingly legitimate criticism directed at law enforcement [over its investigation]. If significant portions of the record are withheld, will the public’s ability to evaluate those criticisms be inhibited?” Anfinson said. “If it was a situation where there was no serious criticism of law enforcement’s efforts, the need for access would be diminished. But access makes for accountability. And here that accountability seems like a pretty big deal.”
Kelley, the Wetterlings’ attorney, did not return a call seeking comment for this story.
However, in a memorandum in support of the issuance of a temporary restraining order to block the release of the records, Kelley insisted his clients “understand and support” the need for open government.
“That said, nothing in the data flagged as constitutionally protected personal information has any bearing on the public’s right to know what the government did with respect to the criminal investigation surrounding Jacob Wetterling’s disappearance,” Kelley wrote.