MFIA Clinic Secures Win in Lethal Injection Case

The Media and Freedom Information Access Clinic secured a victory in a Missouri Circuit Court on March 21, 2016 when a judge ruled that the Missouri Department of Corrections (DOC) was required under state law to disclose the names of the pharmacies from which it purchases the drugs used to execute inmates on death row. The order was issued in a lawsuit filed by five news organizations after their Sunshine Act requests for information on the State’s drug suppliers were refused in 2014. It requires the disclosure of the source of drugs used in the execution of five men between October 2013 and May 2014. The news organizations are represented in the case by the Media Freedom and Information Access Clinic (MFIA) at Yale Law School and Bernard Rhodes of Lathrop & Gage LLP in Kansas City, MO.

The Order by Circuit Judge Jon Beetem rejected arguments by the Missouri DOC that the source of drugs could be kept confidential under Missouri’s Black Hood Law, which allows it to withhold names of those who are part of the execution team. Monday’s ruling held that the suppliers of drugs cannot properly be considered part of the team that carries out a death sentence. The Missouri DOC is expected to appeal.

In ordering disclosure, the court also awarded $73,335.41 in attorneys’ fees and out-of-pocket expenses to the plaintiffs in Guardian News & Media LLC, et al. v. Missouri Department of Corrections. The five news organizations that brought suit included the GuardianUS, the Associated Press, and the three largest newspapers in Missouri, The St. Louis Post-Dispatch, The Kansas City Star, and The Springfield News-Leader.

The ruling is the latest decision in ongoing litigation over the public’s right to access information about Missouri’s lethal injection practices. In 2011, death penalty states like Missouri halted a longstanding practice of using a three-drug cocktail containing sodium thiopental for lethal injections, after manufacturers stopped exporting the drug. States like Missouri were forced to seek alternatives, but the source, quality, and composition of these drugs have remained secret from the press and the public, according to the lawsuit.

“Without this information, the public is unable to exercise meaningful oversight of the executions carried out in its name,” said Rhodes. “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 Missouri case began when the news organizations sought information about the drugs under the state’s open records act, the Sunshine Law. The DOC denied the request, citing Missouri’s Black Hood Law. The media organizations filed a lawsuit on May 15, 2014, arguing that the Sunshine Law guarantees access to the records and that DOC exceeded its statutory authority.

On July 15, 2015, the Circuit Court granted the news organizations’ motion for summary judgment on its Sunshine Law claim, finding that DOC violated the Sunshine Law by withholding the requested information and failing to respond to the request in a timely manner. The plaintiffs then filed in support of an award of attorney’s fees, pursuant to a section of the Sunshine Law that authorizes fees when a governmental body violates its disclosure obligations.

To date, the Missouri DOC has not released any of the requested information, as the state’s attorneys continue to dispute the ruling’s scope, redactions, and other related issues. Meanwhile, the use of the death penalty has continued apace in Missouri. Since the Sunshine Law claim was first filed, thirteen individuals in the state have been executed by lethal injection, according to Rhodes.

“Today’s ruling recognizes that the Department of Corrections knowingly violated the Sunshine Law in refusing to disclose the requested information,” said Ben Picozzi ’16, a law student intern from MFIA, which provided representation for the litigation. “Hopefully this will serve as a deterrent to the Department and other government bodies from committing similar violations in the future. However, the Department still refuses to release its lethal injection records critical for public oversight.”

MFIA is also working on a related case challenging the refusal of the Arizona Department of Corrections to disclose information about the source and quality of drugs used to carry out lethal injection executions. The outcome of the case is still pending. 

The Media Freedom and Information Access Clinic is a law school clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression through impact litigation, direct legal services, and policy work. MFIA is part of the Abrams Institute for Freedom of Expression, which is affiliated with and administered by the Information Society Project at Yale Law School.