ACLU argues Idaho judge should force disclosure of execution drugs

BOISE, Idaho – Idaho’s attempt to withhold information about the source of its lethal injection drugs is similar to hiding the type of ammunition used by firing squads or the brand of rope used in a hanging, an attorney for the American Civil Liberties Union of Idaho told a state judge on Monday.

The arguments from the ACLU’s Ritchie Eppink came at the close of a trial pitting the Idaho Department of Corrections against a University of Idaho professor who sued for access to execution documents under the state’s Public Records Act.

Similar lawsuits have been filed across the U.S. in recent years with varying results, as prison officials struggle to find lethal injection drug suppliers in the wake of sometimes botched executions.

Professor Aliza Cover, who studies how the public interacts with the death penalty, requested the documents from prison officials in 2017. She sued after the state largely denied her request, and Judge Lynn Norton heard closing arguments in the case on Monday.

Idaho Department of Correction officials fear that revealing information about where they obtained the lethal drugs used in executions in 2011 and 2012 will prompt protests by anti-death penalty advocates and cause other lethal drug suppliers to refuse to sell to the state.

“The public has an interest in its public agencies carrying out lawful orders, which the death warrant is,” said corrections department attorney Jessica Kuehn, referring to the court document that orders an execution to be carried out.

But she characterized the public interest in the source of execution chemicals as “minuscule.”

Kuehn said the Idaho Legislature has given the Board of Correction the authority to determine which documents to withhold from public record releases, and the courtroom is not the forum to contest that.

But Cover’s attorney said her record request was essentially a request for public reassurance that the state is acting appropriately and not resorting to illegal, unethical or unsavory drug suppliers when carrying out executions, Eppink said.

“Instead, the department argues, `If we told you where this came from, the public might not allow you to do it again,“’ Eppink said. “The Legislature or the market might respond by removing these suppliers from the options that we as society consider acceptable.”

Other states have faced similar lawsuits with mixed results. In Arizona, news organizations including The Associated Press sued in hopes of finding out where prison officials sourced their execution drugs, but a federal judge ruled in 2017 that the media outlets did not show they had a First Amendment right to the information.

A public record lawsuit in Nevada forced that state to reveal the types of drugs it planned to use for lethal injections, and that information prompted three pharmaceutical companies to sue to stop the state from using their drugs in executions.

The pharmaceutical companies contended Nevada prison officials obtained the drugs by subterfuge by having them shipped to a non-prison address. That lawsuit is ongoing.

A Nebraska judge ordered prison officials there to release public records related to lethal injection drugs – including records that identify the state’s supplier – and pay court costs to the ACLU and two newspapers who sued for the information. Prison officials have appealed that decision and the records remain undisclosed.

Eppink claimed the Idaho corrections department had a pattern of hiding, losing or destroying documents rather than providing them to people who seek them under the state’s Public Records Act. He said the department administers the death penalty on behalf of the public, and the public deserves to know if that responsibility is being carried out well.

“When the department’s team injects those drugs, we all push those drugs in,” Eppink said. “To prevent the public from putting sunshine onto that apparatus … suggests we are so ashamed we must hide it like a profound regret.”

Kuehn acknowledged that the department has record retention problems and said officials are working on the issue.

Norton said she will begin deliberating on the case on Feb. 13 and will issue a written ruling sometime later.