Are Local Jail Rules Trade Secrets?

By Christopher Coble, Esq. on April 01, 2019 | Last updated on April 04, 2019

In any given workplace, there are (or should be) a definitive set of rules and policies that guide employee and company behavior. That way, if something goes wrong, the first question can be: "Did we follow our rules?" After that, you can determine if the rules or policies should be updated or changed to avoid future incidents.

These rules and policies are also helpful when it comes to potential legal action -- both sides will want to know if everyone did everything "by the book" in a given scenario. But what if that "book," along with the rules, policies, and any record of compliance are kept secret? That's what many local jails are doing under some creative use of trademark laws.

A Recipe for Disaster?

Most of us wouldn't compare a jail's operations manual to the recipe for Coca-Cola. But according to one incarceration expert (and his legal team) there is a secret formula for running a detention facility. Gary DeLand has sold his formula to jails in at least 19 states in the past 40 years, according to a report from Mother Jones, and contends that any release or publication of his model guidelines "would destroy their value." DeLand has successfully invoked copyright law to block the production of his guidelines in at least two major lawsuits, arguing that they amount to trade secrets.

But, as we pointed out above, this can be a problem if something goes wrong and anyone outside of the jail is trying to figure out what the protocols were for that situation, and if jail staff followed its own protocols. Mother Jones highlights the case of Heather Miller, an inmate in Davis County Jail outside Salt Lake City who ruptured her spleen after falling from her bunk in 2016. EMTs didn't arrive for three hours, during which time jail staff only gave Miller ibuprofen. She died shortly after she got to the hospital.

Miller's mother, who only found out about her daughter's death from an old roommate, is now suing Davis County for negligence. And she is hoping to have better luck than the American Civil Liberties Union when it comes to getting information on the jail's emergency or medical protocols. The Utah State Records Committee rejected the ACLU's request for the jail's guidelines when while investigating Miller's death and others at the county jail. "If the jail wrote and kept these standards itself, they would be public," ACLU attorney David Reymann argued, but because they were created by DeLand and sold to the jail, they could remain secret.

A Recipe for Success?

To be sure, not all jails or prisons used privately purchased guidelines, and there's even been some push back to publish parts of DeLand's secret recipe or allow public lawmakers to view them. But both DeLand and, more importantly, the jails that use his guidelines, see the value in keeping them secret. "The standards have had a tremendous effect," DeLand told Mother Jones. "If you can find any other state where the jails have had more success than Utah has had in preventing losses in court cases, I'd sure as hell like to know."

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