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CA Court of Appeal: Documents Identifying Suppliers of Execution Drug are Public Records

On December 20, 2011, a California Court of Appeal held that the California Department of Corrections and Rehabilitation (CDCR) may not withhold the names of pharmaceutical companies and other sources from which it sought to acquire a drug used in the state’s lethal injection protocol, when a request for that information is made pursuant to the California Public Records Act (CPRA), Government Code § 6250 et seq.

In October 2010, the American Civil Liberties Union of Northern California (ACLU) submitted a CPRA request for documents related to the CDCR’s acquisition and use of sodium thiopental, the first of three drugs administered to condemned prisoners when they are executed. The CDCR declined to turn over the requested records and the ACLU filed a petition for writ of mandamus in San Francisco Superior Court.

In February 2011, relying on its perception of a “potential problem with boycott and business interests,” the Superior Court allowed the CDCR to withhold, among other information, the names of pharmaceutical companies and other businesses and individuals the CDCR had contacted in order to acquire sodium thiopental.

The ACLU appealed, and the 1st District Court of Appeal found that “the passionate nature of the death penalty debate ... heightens public interest” in the requested documents and “justifies nondisclosure only to the extent [the CDCR] may show that disclosure of that information would pose a potential security threat of some sort” to the pharmaceutical companies or other entities from which the CDCR tried to obtain the drug.

On the merits, the Court of Appeal held that no evidence in the record supported the trial court’s determination that the requested records would pose a potential security threat. With respect to the possibility of an economic boycott of the companies involved, the appellate court noted that the CDCR had explicitly disassociated itself from that argument, and thus concluded that the Superior Court’s ruling was “based, at least in part, on a judicially perceived threat not credited by CDCR.” See: ACLU v. Superior Court, 202 Cal.App.4th 55, 134 Cal.Rptr.3d 472 (Cal.App. 1 Dist. 2011).

States have been scrambling to find new supplies of execution drugs after the overseas companies that produce them have increasingly banned them for use in lethal injections. [See: PLN, June 2011, p.1]. Several states are turning to different execution protocols, including Arizona, Ohio, South Dakota, Idaho, Texas and Washington. On July 18, 2012, Texas used a single dose of pentobarbital to execute prisoner Yokamon Hearn, 33. Other states, such as Missouri, have switched to a different drug – propofol – for lethal injections.

Additional sources: Metropolitan News-Enterprise,,

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Related legal case

ACLU v. Superior Court