Davis County Jail 14

A look inside Davis County Jail on Wednesday, Nov. 20, 2019.

FARMINGTON — A judge heard final arguments Friday on whether to release copyrighted standards used to run Utah’s county jails, a case that attorneys say has wider implications for public access to government records in the state.

The American Civil Liberties Union of Utah and the Disability Law Center sued Davis County and the State Records Committee in 2017 over their refusal to release the Utah Jail Standards, which at the time were a key battleground over jail transparency after a record 25 deaths occurred behind bars statewide the year before.

On Friday, 2nd District Judge David Connors said at the close of a three-day video trial attended by sheriffs and jail commanders from around the state that he would evaluate the evidence and issue a ruling later.

Attorney David Reymann, representing the civil liberties groups, said that while the Utah Government Records Access and Management Act, or GRAMA, says records can be protected when their disclosure is limited by copyright, he said the fair use doctrine is part of copyright law and should be considered as well.

“GRAMA does not say any document that is copyrighted is outside GRAMA,” Reymann said. A ruling otherwise “would exclude any copyrighted documents and would gut GRAMA,” he said.

Things like government contracts with suppliers and consultants may be no longer available.

The fair use doctrine, according to the U.S. Copyright Office, “promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances.” The doctrine “identifies certain types of uses — such as criticism, comment, news reporting, teaching, scholarship, and research — as examples of activities that may qualify as fair use.”

The crux of the dispute is a set of 600 standards that Gary DeLand, a former director of the Utah Department of Corrections, wrote for the Utah Sheriffs’ Association in the mid-1990s.

He testified he obtained a copyright for a previous work, Model Standards of Prison Management, and updated them to apply to Utah and jails.

Reymann argued the standards are covered by fair use. DeLand never obtained confidential agreements for the standards and dozens of jails have used them over the years.

“There is no evidence of any agreement requiring them to keep this information secret,” Reymann said.

Blake Hamilton, an attorney representing Davis County, said the GRAMA law says nothing about requiring government records officers to evaluate fair use.

“They are not about use, they are about access,” Hamilton said.

Beyond copyright considerations, Hamilton and DeLand said jails didn’t want the ACLU and the DLC to have the standards because they could use them as a club for new lawsuits.

Under questioning by Hamilton, DeLand recounted that in 2017, before the lawsuit, “It was a major battle that was going on with the news media” because the jails would not release the standards.

“The sheriffs were taking an awful lot of heat,” DeLand said.

DeLand eventually agreed to release the basic text of the standards, but he retained control of sections that compiled legal justifications and rationale for why given standards were important for jails to operate legally.

My main concern is my research,” he said. “I spent $2,000 a month keeping up with the case law” referenced in the standards.

In 2020, DeLand sold the copyrighted standards to a partner company, which no longer markets the standards to Utah jails.

The jails are waiting for the outcome of the lawsuit before they can decide whether to resume using them, according to testimony Friday.

DeLand said he still opposes releasing even a PDF copy of the copyrighted portion of the standards as they existed in 2017, the documents sought in the lawsuit.

“About 80% of the research is still good,” he said. “Why put those jails, those sheriffs, who made the effort to do the right thing, at risk to suddenly get punished for it” if the civil liberties groups obtain the documents, he asked.

Hamilton further argued that the public already has access to the most important underpinnings of jail operations: jails’ own policies and procedures.

“However, (the civil liberties groups) want more,” Hamilton said. “They want a privately owned and copyrighted work.”

He added, “If you let the ACLU have this, they’re an adversary to jails that sues jails regularly. That clearly would hurt (the standards’) value.”

Reymann said that what the groups may or may not do is immaterial to the case at hand — Connors is only deciding whether the standards are a public document and not protected from release.

The attorneys and Connors agreed that the case may be precedent setting, because there is no Utah GRAMA case law on fair use of copyrighted documents.

A ruling against fair use evaluation, Reymann said, “would put off limits” from release documents “that GRAMA clearly contemplates as public records.”

“The way our government runs our jails and treats people in captivity is extremely important,” he said. “The public has the right to know how public institutions are run.”

But Hamilton said, “The private interest, we believe, outweighs those of the public” in the matter of the standards.

“We believe the county and the Records Committee got it right here,” he said. “They are not records, they are owned by an individual.”

In a preliminary ruling in 2019, Connors decided that the basic text passages of the DeLand standards are a public record and he ordered their release.

However, the fight over copyrighted portions has gone on for almost two more years.

Reymann said it’s rare for a GRAMA issue to be decided in court.

Some people appealing records denials can’t afford to take an agency to court, Reymann said, “and even the cases that are brought, they take so long that the information they are seeking is somewhat dated.”

“Usually they end up being fights of principle,” he said.

You can reach reporter Mark Shenefelt at mshenefelt@standard.net. Follow him on Twitter at @mshenefelt.

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