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Alexandria judge faces Wetterling privacy decision Friday in open records case

Patty and Jerry Wetterling accept applause from a Friday, Jan. 27, 2017, Minnesota Newspaper Association audience. They recounted the final dayts before authorities solved the disappearance of their son, Jacob. Don Davis / Forum News Service

ALEXANDRIA, Minn. — The disappearance of Jacob Wetterling has been one of the most talked about cases in Minnesota history. Now it is up to an Alexandria judge to decide if the Wetterling family's request to keep some details of that investigation private is allowed under the state or federal constitution.

A hearing Friday, Feb. 2, in Alexandria will lay out arguments in the open records case on the Wetterling investigative file. The ruling by Judge Ann Carrott will set an important precedent for Minnesota criminal cases.

When a criminal investigation closes in Minnesota, the file on the investigation becomes public.

The Wetterling case closed in 2016 after Danny Heinrich confessed to abducting and killing 11-year-old Jacob Wetterling from St. Joseph in 1989. As part of a plea agreement, Heinrich led investigators to the boy's remains in a gravel pit near Paynesville.

But the day before the files in the case were to be released in June 2017, Jacob's parents, Jerry and Patty Wetterling, sued to block the release of some documents, contending there is a constitutional right to privacy that trumps the state's Data Practices Act. That act is the state law that says the files should be public.

The case was assigned to Carrott, who ruled to keep the files private until the case could be resolved in court.

A coalition of media outlets and public interest groups asked the court to intervene in the case and assert their opinion that there is no constitutional right to privacy in this case. The coalition includes the Minnesota Newspaper Association.

Mark Anfinson, the attorney representing the Minnesota Newspaper Association, said a ruling in favor of the Wetterlings' claim of constitutional privacy "would threaten to dismantle" the state's Data Practices Act.

If the court recognizes the constitutional right to privacy, "After that, it can be applied to any case involving a request for public access to government records," Anfinson said.

The Wetterlings are trying to withhold from the public 168 pages out of 56,000 in the case file, covering personal matters "that aren't anybody's business," said their attorney, Doug Kelley.

"There are materials in there that just should not be in a police file," Kelley said.

He said Minnesota's Data Privacy Act was held up as model for other states when it was passed in 1974, but since then other states have added "safety valves" to cover such privacy issues.

He said the more recent federal Freedom of Information Act also has privacy protections.

While the number of pages the Wetterlings are seeking to have sealed is a fraction of the investigation, "We don't know what they are trying to protect," Anfinson said.

He added that the burden is on the Wetterlings to prove their right to privacy.

Anfinson said a primary question that journalists and others who review the file will be trying to answer is: "Could this case have been solved sooner?"

Kelley said removing the personal information will not hinder any legitimate inquiry into why it took 27 years to find Jacob's killer

But, Anfinson said, "The problem with that is the legal principle won't be limited to this case."

The case has been further complicated by the fact that the federal government joined the case, asserting that FBI records in the file are really the property of the FBI and should be returned to the agency before the rest of the files are released.

The FBI documents cover the majority of the pages that the Wetterlings are trying to keep sealed.

Kelley, a former federal prosecutor, said the forms used by the FBI, known as 302s, state that they are the property of the FBI and are on loan to the local investigating agency.

He said most investigating agencies return them to the FBI voluntarily but can be accessed through the federal Freedom of Information Act.

About 14,000 pages of the total investigative file appear to be FBI records, Anfinson said.

Friday's hearing is set for 1:30 p.m. in the Douglas County Courthouse. Anfinson said it will likely be 60 to 90 days before a ruling is issued and appeals are likely no matter the ruling.

"We are likely going to be talking about this case for the next few years," Anfinson said.

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