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Nebraska Supreme Court Rules Execution Drug Documents Subject to Disclosure

BH Media Group, doing business as (dba) Omaha World Herald, Lee Enterprises, Inc., dba Lincoln Journal Star, and Amy Miller and ACLU of Nebraska Foundation (relators) filed separate public records requests seeking information from the Nebraska Department of Correctional Services (DCS) related to the department’s procurement of drugs used for lethal injection executions.

The DCS provided some documents and informed them that it had withheld additional documents because they were exempt from disclosure under Neb. Rev. Stat. § 83-967(2) and not public records under § 84-712.01(1).

The relators separately petitioned a district court for a writ of mandamus to compel disclosure.

DCS officials testified that disclosure would either reveal the privileged name of an execution team member that was written on the document or reveal the name of the drug supplier, who then could be asked the name of the execution team member.

The court found that the documents with execution member names on them were exempt from disclosure, but those with the supplier’s name were not. It reasoned that it was speculative that the disclosure of the supplier’s name would lead to the discovery of the execution team member’s name and noted that the DCS could simply ask the supplier not to disclose the name.

In post-judgment proceedings, the court granted relators attorney fees and costs.

On appeal, the cases were consolidated. Attorney Shawn D. Renner of Cline, Williams, Wright, Johnson & Oldfather represented the media while attorney Christopher Eickholt of Eickholt Law represented Amy A. Miller and the ACLU of Nebraska Foundation.

The Nebraska Supreme Court noted that § 83-967(2) exempts the identities of execution team members from disclosure. It does not exempt documents that might possibly lead a reporter to eventually discovering an execution team member’s identity by disclosing the supplier.

Therefore, it upheld the district court’s ruling that required disclosure of the documents revealing the supplier’s name.

Related legal case

State ex rel. BH Media Grp., Inc. v. Frakes