Judge: Durham sheriff can keep some jail policies from public view
Durham County Sheriff Clarence Birkhead can keep some jail policies hidden from the public, a judge ruled Thursday. That includes the jail’s search, restraint and housing assignment policies.
Emancipate NC, an anti-mass incarceration nonprofit, has pushed for the release of the jail’s full policy manual since 2023 after starting to investigate the conditions inside.
But sections of that document contain sensitive information exempted under the state’s Public Records Act, Special Superior Court Judge Hoyt G. Tessener said in court on Thursday during a hearing on a lawsuit the nonprofit filed.
Tessener supported a sheriff office motion to dismiss Emancipate’s lawsuit after reviewing the policy manual earlier this week, he said.
Tessener noted case-law cited by Curtis Massey, a Durham deputy county attorney, that shows courts have largely deferred to law enforcement officials on these types of issues — and said Sheriff Birkhead is a duly elected official.
Before Tessener announced his decision, Simpson argued that two other counties — Mecklenburg and Buncombe — had released more of their jail policies when asked.
But Massey said the policy manual contains specific security information and other plans for the correctional facility. If certain parts of the policy were made public, it could undermine corrections officers from doing their jobs.
For instance, if people knew the jail’s search policy, they could use the information to find loopholes in the process, Massey said during the hearing.
Elizabeth Simpson, the nonprofit’s attorney and strategic director, agreed with the concern but said Emancipate NC wasn’t asking for specific times or the schedule of searches — just for the policy to ensure it met state and federal safety standards.
After the hearing, she said she was frustrated that she wasn’t able to see the information being shielded.
“It’s frustrating that this can be done in camera without my ability to even view what was redacted,” she said, meaning the judge reviewed the unredacted jail policy without the attorneys present.
Massey declined to comment on the court’s decision after Thursday’s hearing. The Durham County Sheriff’s Office did not immediately respond to a request for comment.
Tessener noted case-law cited by Massey that shows courts have largely deferred to law enforcement officials on these types of issues — and said Sheriff Birkhead is a duly elected official.
“He can decide what’s secret and the courts won’t stop him,” Simpson said. “That means the only remedy is an election.”
