By Claire Withycombe • The Bulletin

What are the ‘Oregon Jail Standards’?

Jails in Oregon follow voluntary standards that are maintained by the Oregon State Sheriffs’ Association. The standards are applied on top of state and federal policies regarding county jails. But unlike state, county or sheriff office policies, these are created and maintained by a nonprofit organization — one that says the standards, which were first copyrighted in 1999, are also a “trade secret” under ​state law.

A U.S. District Court in Eugene agreed recently to keep confidential a set of standards used to inspect county jails after the state sheriff’s association intervened in a wrongful death lawsuit against Deschutes County.

As they prepare to argue the $10.7 million suit, attorneys for Edwin Burl Mays Jr. have asked the county for “Oregon Jail Standards, Policies and Criteria that were used in inspections of the Deschutes County Adult Jail between 2010 and 2015,” court records show. Mays’ son, Edwin Mays III, died of a methamphetamine overdose in the jail nearly a year ago.

Those standards might shed some light on the best practices the sheriff’s office aspired to at the time of Mays’ death, which is under investigation by the Oregon Department of Justice. His father’s attorneys have argued that Mays asked for medical help; the jail’s video of the night Mays died, released to The Bulletin in March, shows him behaving erratically while deputies mock him.

Though Mays’ attorneys can have the so-called Oregon Jail Standards, they remain sealed because they’re the property of the nonprofit Oregon State Sheriffs’ Association. The association says the standards are proprietary content. The standards, which are voluntary, are distinct from state and federal laws and are used in biannual inspections of county jails.

The standards can be released to Mays’ attorneys under a protective order, U.S. District Judge Ann Aiken determined Nov. 24. A protective order means in this case the standards are sealed and can only be shown to a select group of people directly or indirectly involved in the lawsuit — such as experts and court recorders .

Aiken’s Nov. 24 order also states any “documents, testimony, written responses or other materials” in the case that contain information the sheriffs’ association reasonably believes is confidential can be designated as such.

Although the standards are applied in the inspection of public facilities, the association argues they are a “trade secret” under Oregon law because the association owns them. John Bishop, the association’s executive director and the retired sheriff of Curry County, in an email Wednesday compared the standards to “the formula for Coca Cola or the recipe for KFC.”

“Making the standards public would destroy their value,” Bishop wrote.

Unlike the sheriff’s office or county policies, the jail standards are owned by the sheriff’s association, Bishop said, and go beyond the requirements of state and federal law. Both county and sheriff’s office policies are considered public record. But the association, a 501(c)(3) nonprofit, Bishop wrote, isn’t a public body subject to Oregon public records law.

The stated mission of the sheriffs’ association is to “promote, protect, preserve, enhance and support the office of sheriff as conservator of the peace in providing public safety services to the citizens of Oregon,” according to its 2013 tax form.

Elmer Dickens, a lawyer representing the sheriffs’ association, wrote in an email Thursday the association had not “authorized” him to comment.

The association is currently the only external body conducting consistent inspections of county jails, though the state reserves the right to do inspections, according to Tillamook County Sheriff Andy Long.

Long, who sits on the Corrections Policy Committee of the state’s Department of Public Safety Standards and Training, said keeping the standards under the purview of the association has made the best practices more consistent across counties and better suited to the needs of local jails.

“The state was inspecting county jails and they were inspecting them like they were prisons,” Long said in a phone interview Thursday. “… There’s some serious differences there.”

Furthermore, Long said, he felt the standards codify more thoroughly what jails ought to do than Oregon laws. The Clackamas County Sheriff’s Office, in a May news release, said the standards “reinforce and enhance staff professionalism.”

“The Standards are stringent and encompass every aspect of jail operations, in minute detail,” wrote Clackamas Sheriff’s Sgt. Nathan Thompson.

Online U.S. Copyright Office records show the association registered a copyright for the first edition of the Oregon Jail Standards in 1999; the most recent registry is for the fifth edition of the standards in 2012. A representative of the Portland office of the law firm that handled the most recent registration, Lane Powell PC, could not be reached for comment.

Generally, the public is prohibited from duplicating material that’s under a copyright, according to University of Oregon law Professor Emeritus Dominick Vetri, but that doesn’t necessarily bar the public from knowing what the work contains.

A request to view the standards, submitted Thursday to the Library of Congress, was not responded to. Not all works registered with the Copyright Office are kept at the Library of Congress, and not all are published. If a work is published, the library determines whether it will maintain a copy for public viewing.

Deschutes County Counsel David Doyle said in an interview Thursday that the county was prohibited from sharing the Oregon Jail Standards.

“What the interplay is between copyright law and public records law, that’s an interesting issue,” Doyle said. “I’m a big believer in … disclosure and recognize the public interest in matters, but at the same time, we’re obligated by law to recognize the copyright and it was a condition of our receipt of this document in the first place, so we’re obligated to honor that.”

Doyle said that the plaintiffs in the Mays case sought standards regarding the medical care of inmates. Jennifer Coughlin, who is representing the Mays family, could not be reached for comment.

Mays’ attorneys can contest the confidentiality of a document. If that disagreement can’t be resolved informally, the Nov. 24 order states, they can file a motion to disclose the document publicly.

The issue of obtaining the jail standards isn’t the first of its kind: In 2012, attorneys representing Mark Andrew Kemp, who alleged Lane County sheriff’s deputies assaulted him and ignored his medical needs, filed a motion to compel Lane County to release the Oregon Jail Standards after a protracted back-and-forth with the association and a county attorney.

A judge ordered the standards released under a stipulated protective order, electronic court records show. The case was settled in mid-2013.

­— Reporter: 541-383-0376,

cwithycombe@bendbulletin.com

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