MFIA’s Lethal Injection Access Litigation: Statutory and Constitutional Strategies

The Clinic is currently litigating two cases seeking access to information about states’ lethal injection drugs. In Arizona, the Clinic is pursuing a § 1983 action asserting a First Amendment right of access to information about Arizona’s lethal chemicals. This post’s focus is on lethal injection access litigation that the Clinic has been carrying out in Missouri on behalf of five national and state news organizations: Guardian News and Media LLC; the Associated Press; Cypress Media, LLC; Gannett Missouri Publishing, Inc.; and the St. Louis Post-Dispatch LLC. In Guardian News & Media LLC v. Lombardi, the Clinic seeks access under Missouri’s Sunshine Law to information on the state’s use of execution drugs.

Before going into the details of the case, it’s helpful to take a step back and note the difference between the constitutional right of access at issue in the Arizona Guardian case and the statutory right of access in the Missouri Guardian case. The constitutional right of access in the Arizona case stems from the First Amendment and a long line of cases granting the public access to certain government proceedings and related documents. The statutory right of access, conversely, derives from the Missouri legislature’s decision to enact a Sunshine Law that grants the public broad access to government documents. Exemptions do exist within the law, but they are to be narrowly construed in favor of disclosure. In other words, if the Missouri government wants to withhold information, it needs to show that the document clearly falls under one of the specified exemptions provided for by the legislature.

In the Missouri Guardian litigation, our clients requested information under the Sunshine Law related to Missouri’s use of lethal injection drugs. The requested information included information about the drugs’ composition and source, results of quality tests, the qualifications of those administering the drugs in executions, and internal policies regarding lethal injection drugs.

The Missouri DOC effectively ignored the requests for the qualifications of the nurse and anesthesiologist present at the execution and for internal policies regarding the use of the drugs. As for the other requested information, the government responded by asserting a panoply of exemptions centering on the idea that information that could identify the state’s lethal injection drug supplier was exempt. This argument relied on Missouri’s “black hood” law, which provides that the director of DOC shall select an execution team consisting of “those persons who administer lethal gas or lethal chemicals and those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals.” The black hood law further requires the identities of members of the execution team to be kept confidential. DOC’s argument was that because the lethal injection drug suppliers had been designated as part of the lethal injection team by DOC, DOC was required to keep their identities confidential.

Our clients initiated a lawsuit in Missouri state court, arguing that the black hood law does not extend to Missouri’s lethal injection drug suppliers. The circuit court agreed, holding that pharmacists and other drug suppliers do not provide direct support for lethal injection, and granting our clients access to much of the information they requested. DOC appealed in Missouri’s Western District appellate court, and the Clinic submitted its opposition brief on October 21. DOC filed its reply brief in the Missouri case on November 22, 2016, and oral argument is scheduled for December 14, 2016.

In many ways, the Missouri case represents the statutory analogue of the Arizona case. In both cases, news organizations seek to obtain critical information about lethal injections—information they have a right to receive. In the Arizona case, the question is whether that state is authorized to withhold the information in light of the access guaranteed by the First Amendment. Here, the question is whether DOC is authorized to withhold the information in light of the access guaranteed by Missouri’s own state law. Because Missouri’s law is clear on this point, the clinic argues that it alone requires the disclosure of the requested information, regardless of whether a constitutional right of access does or does not apply.

We’ll continue to post updates from both this case and the Arizona case as they progress.