The Free Press, Mankato, MN

May 3, 2013

UPDATE: Judge rules Hoffner investigative file will remain sealed

By Dan Nienaber
Free Press Staff Writer

---- — Citing First Amendment rights, a Blue Earth County judge has ruled the investigative reports involving allegations of child pornography against a former Minnesota State University head football coach will remain sealed.

Charges that were filed against Todd Hoffner, 46, were dismissed late in 2012 after District Court Judge Krista Jass ruled not enough evidence existed to support them. She said videos Hoffner had on his MSU cellphone showing his young children dancing without clothing were protected by the First Amendment.

The videos were found by MSU staff when Hoffner turned the phone in for repairs. Hoffner was removed from his position as head football coach in August. After the charges were dismissed, he was reassigned to an administrative position in the MSU Athletic Department.

The university has not said whether Hoffner has or will face any disciplinary action.

After the case was closed, Hoffner filed a motion to have the investigative file sealed. Fox 9 News in the Twin Cities had made a request to the Blue Earth County Sheriff’s Department to see it.

Hoffner cited a law that says investigative data from a case related to the abuse of a child by a parent is private. Jass has kept the case sealed pending her ruling.

The Free Press also requested the file and made a motion to make an argument against sealing it. It argued that the entire case should not be sealed because it’s possible it includes information about why and how the case was pursued. That information could show if the case had been mishandled by prosecutors. Hoffner made those accusations after the case was dismissed.

Jass ruled Friday the case should remain sealed because everything in the file is related to the child abuse investigation. If the child abuse investigation hadn’t started, there wouldn’t be any information in the file, she said.

“Here, the entire police investigation for which the government data under consideration was collected or created had ‘connection, relation, or reference’ to an allegation that (Hoffner) used his children to engage in a sexual performance in violation (of the law),” Jass said in her ruling.

“Because all data collected or created by police in their investigation of (Hoffner) has ‘connection, relation, or reference’ to the allegation that (Hoffner) sexually abused his children, all of the investigative data is classified as ‘private’ under (the statute).”

Jass cited the First Amendment again in her decision to keep the case sealed. There was no evidence to show Hoffner had harmed his children, so the large amount of personal information gathered about Hoffner and his family should remain private, she said. Not sealing it would impede on the Hoffners’ right to free speech.

In its motion to have some of the information released, The Free Press argued that information could shed light on the actions taken by the university, investigators and prosecutors against Hoffner. Minnesota’s Data Practices Act should make information about the operations of public institutions open to the public, the argument said.

“Few proceedings in the recent history of Blue Earth County, and arguably even in the entire state, have raised more public concerns and questions about the operations of our public institutions than has the case of State v. Hoffner, especially given how the case ended,” Free Press attorney Mark Anfinson said in his motion. “Many of these questions and concerns still linger, unanswered, and there are now few options available by which to obtain answers except for the records collected by government officials during the course of the investigation that occurred.”

Jass cited a Supreme Court ruling that individual rights should be considered when considering the public’s right to government information.

Due to Hoffner’s First Amendment right to make video recordings of his children in his own home, “the press must exercise restraint and ‘direct some effort to protect the rights of an accused’ to free speech and privacy,” she said.

“Where the only basis for a police action against a parent is the misconception of that parent’s speech or activity protected by the First Amendment, it is difficult to conceive of a more chilling effect on the full expression and utilization of that parent’s First Amendment rights than the government’s intrusion in the private realm of the family home, its rummaging through the family’s personal effects, and its exposure of all that is discovered to the public eye.”

Releasing any information from the file also would impede on the Hoffner family’s right to privacy, Jass said.

“A parent and his children are not subject to state-assisted public scrutiny for doing that which they are constitutionally entitled to do,” she said. “Where an investigation reveals no harm to any member of the family unit, what goes on within the privacy of the family home is not the public’s constitutional business.”

The request to have some of the information released from the investigative file was not meant to impede on the family’s free speech or privacy, Anfinson said Friday. He had not received a copy of Jass’ order because it was put in the mail Friday afternoon. He said it’s hard to know what the media would use from the file because there is little information available about what’s in it.

“We always conceded that anything related to the kids was off limits,” Anfinson said. “We didn’t want it. I don’t buy it, but we’re at a disadvantage because we don’t know what’s there.

“It does involve a powerfully sensitive topic. The courts will always give maximum protection to the children and I’m fine with that.”

Jass said the information that has already been entered into Hoffner’s criminal file is all that the public needs to see. Some reports from investigators were offered as evidence by Hoffner’s attorney, Jim Fleming, during an omnibus hearing requesting the case be dismissed. Assistant Blue Earth County Attorney Mike Hanson also was given a chance to offer any evidence he had to support the charges, Jass said.

Anfinson said there could still be portions of the file that would be important for the public to know about.

Some items that are not in the criminal file were revealed by lists of evidence sent to Fleming prior to the omnibus hearing. Those items include the report completed by a key investigator in the case, sheriff’s Detective Jerry Billiar, statements provided by MSU employees to Billiar, a letter an MSU employee sent to Billiar and recorded interviews Hoffner and his wife, Melodee, had with Billiar. There also could be information in the file explaining why investigators and prosecutors decided to proceed with the case.

“We requested the court allow the public, not just the media, access to an investigative file that may have contained evidence of possible prosecutorial misconduct,” Free Press Editor Joe Spear said Friday. “We were never interested in any material regarding the Hoffner children that was already protected by law with good reason.

“The judge decided that the public didn’t need to see any of the potential evidence of prosecutorial misconduct.”

Spear said he will consult with Anfinson after he receives the order and decide then whether Jass’ ruling will be appealed.