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Copyright questions sidetrack effort to open Utah’s secret jail standards | Police & Fire

FARMINGTON — A judge has declined to rule that the Utah Jail Standards used by county jails and owned by a private contractor are subject to public release, signaling further litigation is needed to settle the contentious government transparency issue.

Second District Judge David Connors said in a Nov. 5 memorandum decision that the standards — used behind the scenes by jails to gauge the legality of their inmate management procedures — may or may not be subject to copyright protection.

“Initially there is little doubt that the Jail Standards are ‘records’ … in that they are documentary material … that is received by a governmental entity,” Connors wrote.

But because of copyright questions, the judge said he is “simply not in a position to rule as a matter of law” that the standards should be released under provisions of Utah’s Government Records Access and Management Act.

“Further proceedings will be required,” he said.

Connors has scheduled a Dec. 3 telephone conference with attorneys on both sides to discuss next steps.

The American Civil Liberties Union of Utah and the Disability Law Center filed suit in May 2018 after the Utah State Records Committee upheld Davis County’s refusal to release jail inspection records and the Utah Jail Standards.

The civil liberties groups sought the records after a wave of Utah jail deaths in 2016 raised questions about secrecy in inspections and jail operations.

In a Sept. 6 ruling, Connors ordered that reports of internal jail inspections by jail officials, and separate inspections by the Utah Sheriffs’ Association, be made public, a victory for the civil liberties groups.

At that time, Connors said he needed more time to study the separate question of the Utah Jail Standards, written by contractor Gary DeLand, which led to his Nov. 5 ruling.

“There are material issues of fact that remain unresolved regarding, for example, whether access to these Jail Standards really is, or is not, limited at this point,” Connors wrote.

Deland, he noted, has authorized public release of parts of the standards, but not what the contractor has described as their core: heavily researched legal citations that jails can use to inform the constitutionality of policies and procedures employed in the care of jail inmates.

Davis County said it could not release the Jail Standards because of DeLand’s copyright interests. In counterpoint, the civil liberties attorneys contended that the fair use doctrine regarding copyrighted materials should trump the underlining ownership interest in this case.

“In part, this lack of clarity is driven by the fact that Mr. DeLand has chosen not to move to intervene in these proceedings to try to protect his asserted copyright interest,” Connors wrote.

David Reymann, one of the attorneys seeking to open the records, said Wednesday Connors’ ruling Nov. 5 was “very significant” in that he determined the Utah Jail Standards are records subject to GRAMA and that the county has received them.

The county had argued the standards were not records under GRAMA and that even if they were determined to be, the county could not release them because the records were created by another entity.

However, Connors noted that GRAMA says a record can be released by an agency even if it only received the record and did not actually create it.

Reymann said that leaves unresolved only the narrow question of whether copyright will justify the standards being kept private.

You can reach reporter Mark Shenefelt at [email protected] or 801 625-4224. Follow him on Twitter at @mshenefelt.

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