State Uses Pharmacy to Supply Drugs for Lawful Lethal Injection

Issue of the Case

A southern state where the appropriate state agency administers court-ordered executions by lethal injection has declined to disclose the identity of the pharmacy supplying the medications for that use.

Does a limitation in the statute governing the public’s access to governmental information apply to support the agency’s position?

Facts of the Case

Three attorneys representing defendants convicted of capital crimes and residing on death row in a state penitentiary had concerns related to mis- management of executions by lethal injection by staff of the state’s department of criminal justice. They submitted written requests for the following information from the department: execution protocol the department intended to use; the drug or drugs the department intended to use; the source of those drugs; the dates the drugs were ordered and received; and any testing of the drugs to ensure integrity, potency, and purity.

Agency officials eventually responded by releasing all the requested information except for the source of the drugs. State law dictated that if an agency declines to release some information, it must request a legal opinion from the office of the state attorney general. The focus of that review is whether release of the requested information falls under some exception in the relevant open records statute.

The agency justified its denial of the request on a statutory provision stating that “information can be withheld if public disclosure ‘would subject the employee or officer to a substantial threat of physical harm.’”

The attorney general agreed with the agency and ruled that the “physical-safety exception” applied to the situation and protected identifying information from being disclosed.

The 3 attorneys then turned their attention from the executive branch of government to the judicial branch. They went to state court, where each side—the 3 attorneys vs the state agency—filed motions for sum- mary judgment, an action that asked the trial court judge to decide the matter without a full trial. The motions sought to have the judge declare that there was no genuine dispute regarding a material fact at issue and that the matter could be resolved by the judge ruling in favor of 1 party or the other based on the relevant law.

The judge reviewed evidence submitted by the state agency that it felt showed a substantial threat of physical harm. That included a blogger’s post about the pharmacy and capital punishment, com- ments on the website of a pharmacy that formerly supplied the medications for this purpose and emails sent to the owner of that pharmacy, and an email message sent to a pharmacy in a neighboring state that supplied medications for such use.

The trial court judge agreed with the 3 plaintiffs when he ruled that the evidence did not establish “a substantial threat of physical harm,” and therefore, the exception in the statute was inapplicable.

The state agency took the matter to the state court of appeals, which affirmed the decision of the trial court. The matter then advanced to the state’s highest court.

The Ruling

The state supreme court reviewed the entire record and concluded that the physical safety exception in the statute did apply and the agency could withhold the identity of the source of supply of the medication.

The Court's Reasoning

The court began by emphasizing that the statute under review “embodies a powerful policy that ‘each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees.’”

Further, the legislature had mandated that the statute “shall be liberally construed in favor of granting a request for information.”

However, it also noted that the legislature “had enacted more than 50 exceptions to the broad rule of disclosure.”

The court reviewed an earlier appellate decision, which noted that there is a “common law interest in freedom from physical harm, which extends to every person.”

The burden of establishing a “physical-safety exception that would justify withholding information” rests with the governmental agency issuing the denial of access.

The court pointed out that the target of any threats is “largely unknown. No one but the department and the pharmacy itself knows the identity of the source that supplies the lethal injection drugs to the state.”

The court emphasized that physical harm means to a person and does not include economic or harm to physical property or potential loss of business or employment. The threat must be “directed at a person or persons.”

The highest court of the state concluded that the statutorily established right of the public to information about governmental operations “must yield in this context because that right is superseded by other highly important interests” and that an earlier “firestorm of hate mail” directed at the pharmacy formerly supplying the medications demonstrated “a substantial threat of physical harm that is directly connected to the identity of the pharmacy providing lethal injection drugs.”

Joseph L. Fink III, JD, DSc (Hon), FAPhA, BSPharm, is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.