LINCOLN — The Nebraska Supreme Court ruled Friday that state officials must release documents revealing where Nebraska got the lethal injection drugs used to execute Carey Dean Moore in 2018.
The ruling marked a victory for the Omaha World-Herald, the Lincoln Journal Star and the ACLU of Nebraska, which had sued the state Corrections Department for denying their separate public records requests.
The state argued that the records should be confidential because they could lead to the identification of members of the execution team. Those identities are protected under state law.
But the high court rejected the state’s arguments, saying that they “contradict the text of Nebraska’s public records statutes and are adverse to this court’s public records precedent.” It ordered the department to redact confidential portions of the documents, such as the names of execution team members, and release the rest.
Paul Goodsell, managing editor for The World-Herald, said the ruling upheld the intent of the state’s public records laws.
“Nebraskans want their government officials to be transparent and accountable in conducting the public’s business, as state law requires with limited exceptions,” he said. “This ruling makes clear that officials can’t sidestep their disclosure obligations.”
State ACLU Director Danielle Conrad also hailed the ruling, calling open government “a bedrock Nebraska tradition” because it provides a check on government abuses.
“We’re pleased the court agreed that Nebraskans have a right to know what the state is doing with taxpayer dollars and will finally bring transparency to this suspect process,” she said, noting that the documents concern the power to put someone to death.
State officials offered a measured reaction to the ruling but no timeline for producing the documents. It could take as long as four months, depending on whether the state seeks a rehearing on the case, how long it takes to be sent back to the lower court and how quickly that court acts.
Gov. Pete Ricketts said he had just received the ruling and did not know how soon the information would be released. But he said state officials would abide by the ruling.
Suzanne Gage, a spokeswoman for Attorney General Doug Peterson, said he “appreciates the court providing clarity on multiple issues of first impression and on prior case law. Going forward, the attorney general expects the parties will work together to bring this to a resolution.”
The three entities went to court after corrections officials withheld documents that each had sought in separate Freedom of Information Act requests. The requests were filed before Moore’s execution and after prison officials announced that they had obtained supplies of four drugs they planned to use for an execution.
The documents at issue include purchase orders, chemical analysis reports, communications with the drug supplier, federal Drug Enforcement Administration forms, invoices, inventory logs and a photograph of the packaging in which the drugs arrived.
In June 2018, Lancaster County District Judge Jodi Nelson ruled that most of the records should be turned over except those that directly identify members of the execution team.
The Nebraska Attorney General’s Office appealed the portion of the ruling that required the state to release documents. The three plaintiffs cross-appealed, arguing that the state should be ordered to turn over all documents after redacting the information protected by law.
The newspapers and the ACLU filed their Freedom of Information requests in October and November 2017. In the past, state officials have released documents related to the state’s acquisition of execution drugs. In 2015, such disclosure led to the discovery that Nebraska officials lost $54,400 in state money by attempting to purchase foreign drugs that state officials had been told they could not legally import.
Information about the origin of lethal injection drugs has been used in other states to cut off supplies of the drugs. Many drug manufacturers don’t want their products used for executions and require distributors not to provide them for such use. Public pressure also has been used to stop sales.
In response, some states shield the identity of lethal injection drug suppliers. Nebraska lawmakers have debated but did not pass a bill that would have offered such protection.
As of December, Nebraska’s stock of lethal injection drugs had expired and no effort appeared to have been made to restock them after Moore’s execution. The state used four drugs to execute Moore: diazepam, fentanyl, cisatracurium and potassium chloride. It was the first time nationally that the four drugs had been used in an execution.