It’s Not Always Easy To Stand By Your Principles
It’s Not Always Easy To Stand By Your Principles
by Reed Anfinson
Publisher, Swift County Monitor-News
Sticking to your principles is easy when they are challenged by situations where people can easily see the reasons for your actions and agree with them. Such situations don’t test the depths of your convictions.
It is in those rare cases where standing by your principles has the crowd turn against you that you are tested. Often, in those cases, your sympathies lie with the crowd, but you still know what is right and necessary despite the anguish you feel in taking a firm stance. As a profession and organization, Minnesota newspapers faced such a test last week.
This past January Patty Wetterling spoke to journalists attending the Minnesota Newspaper Association convention in Bloomington, praising newspapers for the role they played in helping solve the mystery of her son’s disappearance and death. The association’s members feel a deep connection with Jerry and Patty Wetterling. We have immense sympathy for the long, bitter road they have traveled since their 11-year-old son Jacob’s kidnapping and murder in 1989.
Our challenge came with the end of the investigation into Jacob’s death with the arrest and conviction of Danny Heinrich. Under state law, when an investigation is complete, the information that was part of the file law enforcement collected is public under the Minnesota Government Data Practices Act (DPA).
But the Wetterlings assert that 168 pages of the 56,000-page investigative file on their son’s disappearance contain highly sensitive, very personal information that should not be made available to the public. It is information simply collected along the way in the daily interactions between law enforcement and the family that has nothing to do with the investigation itself, they say.
Because the DPA doesn’t allow for personal information to be withheld in the release of the investigative data, the Wetterlings filed a lawsuit in Stearns County claiming they have a constitutional right to privacy that supersedes the state DPA. Judge Ann Carrott issued a temporary restraining order on release of the full file until the privacy concerns could be addressed. Further, Stearns County Attorney Janelle Kendall said her office wouldn’t go to court to object to Wetterlings’ lawsuit.
So far, neither the state Legislature nor Minnesota courts have recognized a right to privacy for information that is part of an investigative file. And, for reasons central to maintaining its ability to hold law enforcement accountable through examination of investigative files, it is important no right to privacy exception be allowed to cripple the Data Practices Act.
“Central to the Minnesota Newspaper Association’s mission is championing the ideals of a free press in our democratic society, one of which is the right of public access to government records,” MNA stated in a letter released last week. “As the Supreme Court has recognized, ‘the right to inspect and copy records is considered fundamental to a democratic state.”’
That statement was released as the Minnesota Newspaper Association, along with the Silha Center for the Study of Media Ethics and Law, Society of Professional Journalists-Minnesota chapter, KSTP-TV, WDIO-TV, KAAL-TV, Minnesota Public Radio and the St. Paul Pioneer Press filed objections in court to limiting access to the investigative data based on privacy rights. MNA represents most newspapers in Minnesota including the Monitor-News.
While “sincerely sympathetic to the Wetterlings, the association believes (their) lawsuit poses a direct threat to the integrity of the Data Practices Act, the state law that governs the classification of government records and that requires most to be made public,” MNA said. “Preserving the integrity of the Data Practices Act is critical to the maintenance of a free press — and democracy itself,” it stated.
MNA attorney Mark Anfinson has said, “there may be other grounds on which the records at issue can possibly be withheld.” He also said that it would be unlikely the organizations challenging the right to privacy claim would contest closing the data under these other provisions. But the basis for withholding the documents can’t be tied to a constitutional right to privacy.
State law already allows some data to be removed from a public investigative file. Information that could jeopardize the safety of witnesses or victims, the names of sexual abuse victims who have been interviewed, and photos considered “clearly offensive” can be removed. The Stearns County attorney has already taken information along these lines from the file.
The Minnesota Coalition on Government Information is a non-profit, non-partisan organization dedicated to transparency in government that is also challenging the Wetterling’s privacy claim.
“We want to be clear: It’s hard to imagine more sympathetic plaintiffs than the Wetterlings,” the organization said. “They have endured tremendous loss and hardship. But this court case is about upholding a Minnesota law that says the public should have access to closed investigation records to assure government accountability.
“Adopting such an unrecognized right would nullify clearly expressed legislative intent and establish a dangerous precedent with far-reaching implications. For instance, public employees disciplined for misconduct could cite vague privacy interests to keep records explaining the grounds for the discipline secret,” it says.
A constitutional privacy right could easily become a broad exception that could give law enforcement the ability to cloak information on an investigation while seeking to hide mistakes it made or for individuals to hide information that is simply embarrassing, not deeply personal, that sheds a new light on events. Such a right could be extended to other government data.
When government isn’t forthcoming on controversial investigations, when the public doesn’t have a right to examine the record, it suspects a cover-up. That leads to distrust that makes it even more difficult for those institutions to serve the public good
