Customs Service allowed to withhold photo filed in court

MARYLAND–The U.S. Customs Service does not have to provide the Baltimore Sun with a photograph it held of a convicted child molester awaiting sentence for trafficking in child pornography, a federal District Court in Baltimore ruled in late November.

In April 1997, reporter Scott Higham had begun research on a series of articles about the suicide of Don Wilke and the subsequent suicides of his two sons Matt and Justin, a decade after Peter Albertsen, a former camp counselor and close family friend, pled guilty to sexually assaulting the younger son. Albertsen had continued to contact Justin Wilke and in 1995 pled guilty to the pornography charges for sending him a pornographic video from Germany.

Along with the videotape, Albertsen had sent Justin the photograph and a 23-page letter. The photograph showed him wearing a vest fashioned of thousands of safety pins which he wrote symbolized his ties to Justin.

The Sun asked the Customs Service for a copy of the photograph of Albertsen, which it had distributed in an unreproducible photocopy in court papers while he awaited sentencing.

The government refused to provide a copy of the picture and denied a Freedom of Information Act request and appeal for it, saying that disclosure would violate Albertsen’s privacy. The Sun brought a FOI Act lawsuit for the photograph in June 1997 but ran Higham’s series without it shortly afterward.

After Albertsen’s sentencing, the government placed the photograph in the court’s evidence file where it was available to the public as a court document. However, the newspaper continued its suit under the federal FOI Act.

In ruling against the Sun the District Court distinguished the photograph from mug shots, which have been found to be releasable under the FOI Act. It said that Albertsen’s privacy interest in the photograph before his sentencing was enhanced because it had not been widely distributed and the photocopy initially available in the court’s files was of a poor quality.

The court rejected arguments by the newspaper that the public had an interest in learning about Albertsen. (The Baltimore Sun Co. v. U.S. Customs Service; Media Counsel: Mary Craig, Towson, Md.)