LINCOLN — Lawyers for a civil rights group and Nebraska media argued Tuesday that state corrections officials violated public records laws in withholding documents that identified the supplier of lethal injection drugs used in an August 2018 execution.
In years past, the state had provided records that identified the source of drugs to be used in executions, the lawyers said. But “at crunch time” before the 2018 execution of Carey Dean Moore, they said that corrections officials changed their minds and rejected public records requests filed by the ACLU of Nebraska and two newspapers, including the Omaha World-Herald.
Instead of denying such records requests, corrections should have “used a Sharpie,” one attorney said, and redacted portions of the purchase records that identified any members of the state’s execution team (which, by law, are to remain confidential), then released the records.
“You’re required to take out the confidential information and provide the records,” Shawn Renner, the attorney for The World-Herald and the Lincoln Journal Star, told the seven judges.
However, the lawyer for the State Department of Correctional Services told the court that the state’s public records laws didn’t apply to this case, and that the prison agency enjoys an “exemption” elsewhere in state statutes from disclosing the identity of its execution team or “any information reasonably calculated to lead to the identity of such members.”
Ryan Post of the Nebraska Attorney General’s Office argued that releasing the identity of the drug suppliers could lead reporters to investigate and ultimately unmask those prison staffers who participated in the execution.
“We know that in death penalty cases, any new shred of information is going to be investigated,” Post said.
The arguments came fast and furious as lawyers tried to present their cases within the time allotted by the Supreme Court and answer multiple questions from the judges. Six of the seven judges asked questions. Typical oral arguments get far fewer questions and fewer judges involved.
The ACLU, followed by the two newspapers, filed lawsuits in December 2017 after a prison official refused to release records revealing the identity of Nebraska’s lethal injection drug supplier.
After a trial before Lancaster County District Judge Jodi Nelson, the judge ruled that corrections had violated the Nebraska Public Records Act and must release all communications with the drug supplier, Drug Enforcement Administration records, invoices, inventory logs and photographs of drug packaging. The judge did rule, however, that the prison agency could withhold records that directly identified execution team members.
Then, in January, Nelson ruled that the state should pay $60,000 in legal fees to the newspapers and ACLU. She said the media and civil rights group had “substantially prevailed” in their arguments that the records were public.
The state appealed Nelson’s rulings, which led to Tuesday’s oral arguments before the State Supreme Court. A decision is not expected for several weeks.
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Renner, as well as the ACLU lawyer, Spike Eickholt of Lincoln, said the case is clearly about public records statutes. Renner told the judges that the Nebraska Legislature had twice debated and rejected proposals to keep secret the identity of the execution drug suppliers. Gov. Pete Ricketts, a death penalty proponent, has backed such proposals.
Several death penalty states, along with Nebraska, have tried to keep the identity of drug suppliers secret amid increasing difficulties in obtaining the necessary drugs. Several manufacturers have barred the use of their drugs in executions, and several states, including Nebraska, have been forced to change the drugs they use because some are no longer available.
Nebraska, in its past searches for execution drugs, has made some missteps in looking overseas. In 2010, federal authorities destroyed one batch of drugs because the state lacked the proper import license. In 2015, the state paid a broker out of India $54,000 for another batch of drugs, but never received a shipment.
A prison official did say that the four drugs used in the Moore execution were obtained in the U.S. but did not reveal the source.
The ACLU, which opposes capital punishment, has argued that it’s impossible to determine the purity of lethal injection drugs, and whether they’ll work, if the supplier is unknown. The newspapers consider the identity of the drug suppliers a matter of public interest and maintain that the state improperly withheld that information.