Arkansas Supreme Court Orders Partial Disclosure of Information on State’s Lethal-Injection Drugs

The Arkansas Supreme Court has ruled that the state’s Freedom of Information Act requires the Arkansas Department of Correction (ADC) to release copies of the phar­ma­ceu­ti­cal drug and pack­ag­ing labels for the sup­ply of the drug mida­zo­lam that it intends to use in upcom­ing exe­cu­tions, but that the secre­cy pro­vi­sions of the state’s Methods of Execution Act per­mit the depart­ment to redact the batch and lot num­bers that appear on the labels. 

The high court’s November 2 deci­sion revers­es part of an ear­li­er rul­ing by a Pulaski County Circuit Court that had direct­ed the ADC to dis­close the entire pack­ag­ing labels. The appeals court rul­ing effec­tive­ly per­mits the pub­lic and the phar­ma­ceu­ti­cal indus­try to iden­ti­fy the com­pa­ny that man­u­fac­tured the mida­zo­lam that Arkansas pur­chased for the exe­cu­tion of Jack Greene on November 9, but the redac­tion pre­vents dis­clo­sure of infor­ma­tion that could allow the pub­lic and the man­u­fac­tur­er to learn the iden­ti­ty of the com­pa­ny or com­pa­nies that sup­plied and sold those drugs to the state. 

The iden­ti­ties of both the man­u­fac­tur­ers and sup­pli­ers of the drugs used to exe­cute pris­on­ers have been at the cen­ter of a con­tin­u­ing con­tro­ver­sy in Arkansas, as both drug man­u­fac­tur­ers and their dis­trib­u­tors have alleged that the state improp­er­ly obtained the drugs by mis­rep­re­sent­ing the pur­pos­es for which they would be used or by breach­ing con­tracts between man­u­fac­tur­ers and sup­pli­ers that pro­hib­it the sale of med­i­cines to state pris­ons for use in exe­cu­tions. The Arkansas Department of Correction had argued in the lit­i­ga­tion that the Methods of Execution Act required that mate­ri­als that could reveal the iden­ti­ties of the drug man­u­fac­tur­ers be kept secret because “[a]bsent such an inter­pre­ta­tion, drug man­u­fac­tur­ers will con­tin­ue to be pub­licly iden­ti­fied in pub­lished news reports and will con­tin­ue to inter­ject them­selves into lit­i­ga­tion in an effort to halt the State’s use of their drugs for capital punishment.” 

The state supreme court dis­agreed, say­ing that when the leg­is­la­ture wrote the MEA, it includ­ed spe­cif­ic pro­vi­sions relat­ing to man­u­fac­tur­ers, could have includ­ed man­u­fac­tur­ers among those iden­ti­ties cov­ered by secre­cy pro­vi­sions, and did not do so. The court said that, instead, the leg­is­la­ture required the ADC to con­duct exe­cu­tions with ​“drugs that are made by an FDA-approved man­u­fac­tur­er,” and that with­hold­ing the iden­ti­ty of the man­u­fac­tur­er would make it impos­si­ble for the pub­lic to ​“ver­i­fy whether the ADC is com­ply­ing with that requirement.” 

When drug man­u­fac­tur­er Pfizer learned that Arkansas had obtained sup­plies of its par­a­lyt­ic drug vecuro­ni­um bro­mide for use in exe­cu­tions, it alert­ed its drug dis­trib­u­tor McKesson Medical-Surgical, which sold the drugs to Arkansas, that the sale vio­lat­ed their dis­tri­b­u­tion agree­ment. In April, McKesson sued the state alleg­ing that Arkansas had delib­er­ate­ly mis­led the com­pa­ny to believe that the drug would be used for legit­i­mate med­ical pur­pos­es, and McKesson sought both to recov­er the drugs and an injunc­tion against the use of the drug in the eight exe­cu­tions Arkansas had sched­uled for April. 

Although the Arkansas Supreme Court lift­ed the pre­lim­i­nary injunc­tion that had been issued by the tri­al court, the McKesson law­suit remains active. The com­pa­nies Fresenius Kabi USA, LLC, and West-Ward Pharmaceuticals Corp.—the man­u­fac­tur­ers of the potas­si­um chlo­ride that Arkansas used as the third drug in its exe­cu­tions — also attempt­ed to inter­vene in fed­er­al lit­i­ga­tion to stay the April exe­cu­tions, writ­ing that ​“use of their med­i­cines for lethal injec­tions vio­lates con­trac­tu­al sup­ply-chain con­trols that [they] have imple­ment­ed … to pre­vent the sale of their med­i­cines for use in capital punishment.”