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Judge Orders Missouri DOC to Disclose Names of Pharmacies that Supply Execution Drugs; Appellate Court Reverses

On March 21, 2016, a circuit court judge in Cole County, Missouri ruled in favor of several news media agencies and ordered the state’s Department of Corrections (DOC) to release the identities of the pharmacies that supply lethal drugs used to execute prisoners. The court rejected the DOC’s argument that the pharmacies were part of its “execution team” and thus exempt from disclosure under Missouri’s Sunshine Law, which requires that all DOC records be open to the public “unless otherwise provided by law.”

The case began when a group of media outlets, led by The Guardian, submitted a written request to the DOC’s custodian of records requesting access to several documents, including “the name, chemical composition, concentration, and source of the drugs approved for use in lethal injection executions.” The DOC failed to produce any documents responsive to the request, arguing that the “source” of the drugs was nondisclosable because the providing pharmacies were part of the execution team and thus exempt from disclosure under section 546.720 of the Sunshine Law. That section, enacted in August 2007, states that identities of members of an execution team – which are exempt from disclosure – include personnel “who provide direct support for the administration” of the lethal drugs.

However, Circuit Court Judge Joe E. Beetem had little trouble in finding the DOC’s interpretation of the Sunshine Law’s exemptions was overly broad and in fact violated the statute itself. The judge also held the DOC had purposely violated the law, entitling the plaintiffs to costs and reasonable attorneys’ fees.

“Section 546.720 does not create an exemption for records that identify or might identify the entities that supply the execution drugs,” Beetem wrote. The DOC “knowingly violated the Sunshine Law,” and its refusal to disclose the names of the pharmacies supplying it with lethal injection drugs “was based on an interpretation of section 546.720 that was clearly contrary to law.”

“Hopefully this will serve as a deterrent to the department and other governmental bodies from committing similar violations in the future,” said a spokesman for Yale’s Media Freedom and Information Access Clinic, which co-represented the plaintiffs in the lawsuit along with attorney Bernard Rhodes of Lathrop & Gage, LLP in Kansas City, Missouri.

The court ordered the DOC to pay $73,335 in legal costs and fees to the plaintiffs’ attorneys. Judge Beetem stayed his ruling, however, including the disclosure of non-privileged documents, pending an appeal. See: Guardian News and Media LLC v. Missouri Department of Corrections, Cole County Circuit Court (MO), Case No. 14AC-CC00251.

“Without this information, the public is unable to exercise meaningful oversight of the executions carried out in its name,” Rhodes noted. “One of the primary purposes of a free and independent press is to perform a watchdog function over government activities, and this lawsuit is a perfect example of that.”

The state appealed, however, and on February 14, 2017 the Court of Appeals reversed the circuit court’s order. The appellate court concluded, in a consolidated ruling with another case filed by four Missouri taxpayers challenging the state’s execution protocol, that the DOC had not in fact violated the Sunshine Law.

The Court of Appeals wrote: “The Missouri legislature delegated authority to the DOC and its Director to exercise its own discretion in selecting an execution team by providing that ‘members of the execution team’ be defined by the DOC in the execution protocol of the DOC.” In October 2013, the DOC had amended the definition of its execution team to include “individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure.”

Therefore, because the pharmacies were considered members of the execution team and thus protected by statute, the trial court had erred in “finding that the DOC purposefully and knowingly violated the Sunshine Law when it refused to disclose identifying information,” and “[b]ecause the DOC did not violate the Sunshine Law, the court erred in awarding attorney fees for Sunshine Law violations,” the appellate court stated. “Lastly, because the identities of the suppliers of lethal injection drugs are protected by statute, the trial court erred in finding that the DOC violated the Sunshine Law by not producing records already in the public domain.” See: Bray v. Lombardi, 2017 Mo. App. LEXIS 72 (Mo. Ct. App. 2017). 

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Related legal cases

Bray v. Lombardi

Guardian News and Media LLC v. Missouri Department of Corrections