The Free Press, Mankato, MN

December 28, 2012

Investigative files sealed in Hoffner case

By Dan Nienaber
Free Press Staff Writer

MANKATO — A Minnesota State University football coach, who is hoping to keep his job, has filed a civil lawsuit asking a judge to keep investigation reports from a dismissed criminal case sealed from the public.

Todd Hoffner, who hasn’t served in his position as head football coach since August, had been charged with child pornography for having nude videos of his children on his university-issued cell phone. The charges were dismissed in November after District Court Judge Krista Jass reviewed the short videos and concluded they didn’t contain anything illegal.

Shortly after the charges were dismissed, a Twin Cities television news station filed a request to review the investigation reports that usually become public after a criminal case is closed. Hoffner’s attorney, Jim Fleming, responded by filing a request for a temporary restraining order and temporary injunction that would seal the reports until they can be reviewed.

Jass granted the request last week. She also ordered prosecutors to gather all of the reports created by Blue Earth County sheriff’s investigators and other agencies, then turn them over to Fleming for review. Fleming will be allowed to file a sealed list of information he believes should be kept from the public. After receiving Fleming’s list, Jass will review the information and decide what should remain sealed, her Dec. 20 order said.

Hoffner was placed on paid administrative leave from the university after the videos were found on his phone. He had turned the phone in for repairs.

Earlier this month, university officials said Hoffner had been taken off administrative leave but not reinstated as head coach. A news release said Hoffner was being placed on a 20-day unpaid suspension starting Jan. 7. An attorney with the union representing Hoffner also said an effort by the university to place Hoffner on 20-day unpaid suspension is being challenged.

The university release also said another complaint against Hoffner remains under investigation. An affidavit Fleming filed with his request to seal the reports from the criminal investigation said that information could harm his client.

“Plaintiff Mr. Hoffner has an ongoing investigation relative to his employment as a head football coach at (MSU),” Fleming’s affidavit said. “Release of private non-public data could irreparably harm (Hoffner) with respect to that investigation that a civil lawsuit for damages would not fully compensate.”

Fleming said Thursday that state statues for government data practices restrict the public from seeing investigative information from inactive child abuse cases. Since the case has been dismissed and Assistant Blue Earth County Attorney Mike Hanson has decided not to appeal, the information should be sealed from the public, Fleming said.

“The law says all information would be presumed public unless the statute says otherwise,” Fleming said. “The statute says this investigation is otherwise. This isn’t a hard case.”

Mark Anfinson, an attorney who represents the media in court cases seeking access to public records, said he doesn’t believe the case is that simple. He said the statute Fleming is referring to only covers cases where prosecutors decide against filing charges after an investigation.

“The main reason you allow public access to the file is a check on the law enforcement agency,” Anfinson said. “When no charges are filed, there’s a powerful presumption that it was a baseless charge. If it meant not to pursue the case on appeal, it would say so.”

It is very rare for an attorney to file a request to seal investigation records, Anfinson said. It’s not as rare for a judge to temporarily seal information until legal questions can be answered. The investigation information from Hoffner’s case was already legally sealed until the case was closed, so Jass is simply “maintaining the status quo” temporarily until Fleming’s challenge can be considered, Anfinson said.

In a motion requesting the temporary restraining order and temporary injunction, Fleming and a new attorney representing Hoffner, Christopher Madel of the Minneapolis law firm Robins, Kaplan, Miller & Ciresi, mainly focused on the harm that would be caused to Hoffner and his family if the information was released. The attorneys argue that releasing more information would cause more harm.

“The Hoffners have already experienced irreparable injury from (Hanson’s) decision to charge Mr. Hoffner with child abuse and possession of child pornography,” the motion said.

“Among other things, the investigative file would not even exist had (Hanson) not chosen to file the criminal child abuse charges against Mr. Hoffner. It would thus be unfair and unjust to release additional information relating to those same, now dismissed allegations when the information would not have existed but for the improvident criminal prosecution.”

The information, if released, wouldn’t promote open government because much of it was gathered from the Hoffner’s home, where “expectations of privacy are highest,” the motion said.

Fleming said Thursday he wants the information sealed because he is attempting to protect Hoffner’s privacy. Investigators went through computer files, took pictures of items inside the house and filed several reports about what was found.

“We’re not hiding anything from anybody,” Fleming said.

The original complaint filed by Hoffner against Blue Earth County does acknowledge why there is public interest in what information is in the investigation files. It points out that the case was covered by media outlets throughout the country after Hoffner was charged.

“Following the dismissal of the charges, this interest has not waned as scores of well-meaning individuals have asked why MSU-Mankato has not permitted Mr. Hoffner to return to work,” the complaint said.