Tuesday, March 15, 2011

City Weekly prevails in solitary-confinement records lawsuit

Posted By on March 15, 2011, 3:43 PM

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The Utah Department of Corrections voluntarily withdrew its lawsuit against me and the Utah Records Committee today, surprisingly choosing to release records related to solitary confinement, despite their claims that release of the records would jeopardize security.---

City Weekly was represented by attorneys Brian Barnard and Stewart Gollan of Utah Legal Clinic.

The victory for public access to government records comes amidst uproar over the Utah Legislature and Governor Gary Herbert's recent moves to gut Utah Government Records Access and Management Act, more commonly known as GRAMA. For more on HB 477, the recently passed law that may make future requests like this one economically unfeasible, go to CityWeekly.net/HB477.

In August 2010, I requested records pertaining to a list of a dozen inmates, all of which I believe are either currently housed or were at one time housed in long-term solitary-confinement at the Utah State Prison. The request is a part of a long-term investigation that I began in February 2010. Specifically, I requested records going back many years of inmate transfers from one housing unit to another, which would show how long inmates are kept in solitary confinement blocks.

UDC denied my request, citing unspecified security concerns. The Utah Records Committee heard the case January 20 where UDC argued that these records could help reveal "snitches" to other inmates--who, I concede, are savvy enough to know that inmates are often transferred for their own safety after informing on fellow inmates. Inmates are entitled to use GRAMA like other Utahns, and do so from their prison cells.

I argued that long-term solitary confinement is considered torture by many (Recommended reading: this but especially this), and thus government records regarding it should be considered very valuable to the public. Additionally, I conceded that UDC's concerns about security are probably legitimate but almost surely exaggerated to create an excuse for denying public access. I argued the records should be redacted in such a way that security concerns could be lowered to an acceptable level but that information documenting periods of solitary confinement should be released.

The Records Committee split the difference and partially granted my request. They ruled that UDC had failed to persuade them that any security concerns exist regarding records of dead inmates. Two of the names on my list of a dozen were of dead inmates. One of those inmates, sources inside the prison tell me, committed suicide while living in solitary confinement.

UDC sued the Records Committee and myself Feb. 18, seeking to overturn the ruling in 3rd District Court. In their initial filing, the Attorney General's office on behalf of UDC argued that even records of dead inmates pose security threats.

Barnard and Gollan submitted paperwork March 11 indicating they would be handling the case on behalf of City Weekly. The Attorney General's office e-mailed a voluntarily dismissal today.

In a voicemail and e-mail, I asked UDC spokesman Stephen Gehrke:

  • Why did UDC dismiss the case so soon after making serious claims that release of the records would create serious security risks?
  • Have the concerns about security risks related to this records request been eliminated?
  • Will UDC be willing to negotiate some kind of records release that would show how long various prisoners have been kept in solitary confinement but would not create security risks (or at least minimize them to an acceptable level)?

Gehrke declined to comment except to say, "the pleadings speak for themselves." By that he was referring to the legal documents in which UDC argued that releasing the records could reveal snitches, even the records of now dead inmates.

I asked Barnard to comment on why he thinks the UDC voluntarily dismissed its case just weeks after claiming these records create security concerns for them.

"[Gollan] was doing a lot of prep' work and pondering that the other side had no knowledge of [and] was excited and ready for a fight. He called and asked for an extension of time to file an answer to the complaint in the lawsuit. He wrote the letter giving the other side notice that we would be claiming attorney fees if we won," Barnard wrote in an e-mail. "Beyond that, we have no idea why the A.G. would drop their appeal."

Soon after, Barnard forwarded a note indicating UDC would only voluntarily dismiss the case if City Weekly declined to resist the dismissal. Doing so would preclude an immediate opportunity for City Weekly to counter-sue UDC and the Records Committee to seek the records pertaining to live inmates. We made an editorial decision in concert with legal advice that receiving the records from UDC now--for the first time in state history--would better serve the public's right to know than a protracted legal battle whose end result is unpredictable.

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Jesse Fruhwirth

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