Utah’s sheriffs can keep long-guarded records on jail operations and inspections secret in a win for a private contractor that could end up in court

(Steve Griffin | The Salt Lake Tribune) Gary DeLand, former Salt Lake County jail administrator, talks during a news conference from The Utah Sheriffs' Association responding to pressure to see the guidelines every jail in Utah follows to run jails and protect inmates. The news conference was held at the Utah Capitol Presentation Room in Salt Lake City Thursday November 2, 2017.

The Davis County Sheriff’s Office was right to keep the public from seeing the standards that guide Utah’s 25 county jails, as well as the results of inspections that check whether the jail followed those guidelines, a state public records board on Thursday ruled.

The guidelines — known as the Utah Jail Standards — were long guarded by Gary DeLand, the former director of Utah’s Department of Corrections and private contractor who wrote them, copyrighted them, and sold or gave them to states across the country. He also works closely with the company that created software for county jail audits, which are voluntary and not required by Utah law.

R. Blake Hamilton, an attorney for the Utah Sheriffs’ Association, argued in written testimony that the records were protected by copyright law and didn’t belong to the county. He also wrote that public release of audits, which would show whether a particular jail was “deficient” in a particular area, would jeopardize the safety of the jail.

The State Records Committee agreed, ruling 4-0 that the sheriff’s office didn’t own the records and therefore they weren’t the county’s to produce. Members of the committee said they viewed their decision in favor of DeLand and the sheriff’s office as an issue — particularly whether inspection reports should be made public — that should be decided by a state court, a possibility that could impact future oversight of the state’s county jails.

“It’s an unresolved issue,” David Fleming, chairman of the committee, said after the hearing. “It’s going to need to be resolved in a court of law.”

The American Civil Liberties Union of Utah and Disability Law Center (DLC) sought the records after months of unsuccessful attempts by The Salt Lake Tribune and two days after a Tribune report on the arrangement between DeLand and the counties. The groups now are discussing whether to appeal to district court.

“Certainly, we disagree with their decision,” said Marina Lowe, legislative and policy counsel for the ACLU of Utah. “It’s likely we will” appeal.

For years, DeLand has allowed Utah’s sheriffs and correctional officers to use the jail standards he wrote in 1995. The 600 entries give broad guidelines for operating a jail on a daily basis, from protecting inmates from suicide to the reading material allowed in such facilities, where many people haven’t been convicted of a crime.

After reporting by The Tribune and interest from state lawmakers, the Utah Sheriffs’ Association in late January released the standards to the public.

DeLand also wrote or helped write the standards in Oregon, Arizona, Alabama, Colorado, Michigan, Hawaii, Ohio, Louisiana and Texas.

A summary of the standards says they’re “of limited value” if the county following them doesn’t audit and inspect for compliance — records the ACLU seeks in its case. Yet not complying, the summary says, “in no way implies that the facility is out of compliance” with state or federal law.

Still, DeLand said by email Thursday that the guidelines, despite the ruling in his favor to keep them secret, would not be removed from the association’s website. Instead, he worried more about the possibility a court order to release the inspection reports, calling it the “worst-case scenario.” Should that happen, he said, sheriffs should stop the program altogether.

“[Releasing the inspection reports] would likely kill the self-audit program in Utah,” he wrote. “I doubt, however, that is a serious concern of many in the news media, the ACLU, or the DLC.”

In past interviews, DeLand has said that releasing the standards and inspections would open jails up to lawsuits.

David Reymann, an attorney for the ACLU, argued the public interest in knowing whether the jails achieve the goals they’re following outweighs the arguments in favor of keeping the records private.

“The legitimate public interest in the standards that govern Utah’s jails is significant,” Reymann wrote. “Jails perform a public function carried out by public officials who are charged with a weighty public duty of caring for those whose liberty is taken away.”

The yearlong focus on Utah’s highest-in-the-nation inmate death rate caught the attention of state lawmakers, who passed a bill recently that will require more public reporting of inmate deaths.

“It’s odd,” Sen. Todd Weiler, R-Woods Cross, said of the secrecy of the audit results. “It’s all taxpayer money.”

Weiler began studying jails after reports of in-custody deaths and Utah’s high inmate death rate. He sponsored the bill that will require jails to report annually to the state the number of inmate deaths each year, information that has been sent to the federal government that is publicly released several years later.

The new law also will require jails to report what policies — if any — are in place to protect inmates who report they expect to suffer withdrawals from drugs or alcohol during their jail stay.