Evenly Split Indiana Supreme Court Affirms Ruling Requiring Release of Execution-Drug Records

An even­ly divid­ed Indiana Supreme Court has affirmed a tri­al court rul­ing that requires the Indiana Department of Correction (IDOC) to release records relat­ed to the lethal injec­tion drugs Indiana has used in car­ry­ing out exe­cu­tions, includ­ing the iden­ti­ties of the drug sup­pli­ers. The doc­u­ments were the sub­ject of a pub­lic records suit filed by Washington, D.C. lawyer A. Katherine Toomey under the Indiana Access to Public Records Act (APRA).

In a state­ment issued after the deci­sion, Toomey’s appeal lawyer, Peter Racher, hailed the state supreme court’s deci­sion as ​“a vin­di­ca­tion of Indiana’s Access to Public Records Act.” 

“Ms. Toomey made her request for lethal injec­tion pub­lic records back in 2014,” Racher said. ​“Pursuant to APRA, she should have received all the records she request­ed. … Now that the Indiana Supreme Court has spo­ken, we look for­ward to obtain­ing all the respon­sive records from the Department of Correction as soon as possible.”

On October 24, 2016, a tri­al court ordered IDOC to release the records to Toomey, rul­ing that they were sub­ject to pro­duc­tion under the APRA. While the IDOC’s appeal of that deci­sion was pend­ing, the Indiana leg­is­la­ture adopt­ed a retroac­tive secre­cy statute to block the rul­ing from tak­ing effect. At 2:00 a.m. on the final day of the 2017 leg­isla­tive ses­sion, the leg­is­la­ture insert­ed a two-page secre­cy pro­vi­sion into the state’s 175-page bien­ni­al bud­get bill. The secre­cy law pro­hib­it­ed the dis­clo­sure by any per­son of the iden­ti­ty of any­one who con­tract­ed with the state gov­ern­ment to pro­vide or man­u­fac­ture ​“lethal sub­stances nec­es­sary to car­ry out an exe­cu­tion by lethal injection.” 

In 2018, Marion County Circuit Judge Sheryl Lynch struck down the retroac­tive appli­ca­tion of the secre­cy law and again ordered IDOC to pro­duce the exe­cu­tion doc­u­ments, say­ing that the law vio­lat­ed the sep­a­ra­tion of pow­ers and the First Amendment. Neither side in the appeal com­mand­ed a major­i­ty of the vote in the court’s February 25, 2021 rul­ing. However, under the court’s rules, a tie vote lets stand the rul­ing issued by the low­er court. That rul­ing also includ­ed an order direct­ing IDOC to pay more than a half mil­lion dol­lars in attor­ney fees for its bad faith non-com­pli­ance with the state’s pub­lic records act. 

Toomey’s records request gained the sup­port of 16 local news­pa­pers, the Reporters Committee for Freedom of the Press, and 15 nation­al orga­ni­za­tions devot­ed to press free­dom and open gov­ern­ment. A friend-of-the-court brief filed by the Reporters Committee argued that the secre­cy statute ​“uncon­sti­tu­tion­al­ly sti­fles pub­lic debate and dis­cus­sion about exe­cu­tions car­ried out by the State.” The reporters’ brief denounced the secre­cy statute as ​“a pri­or restraint that chills reporter-source com­mu­ni­ca­tions con­cern­ing the enti­ties that pro­vide lethal injec­tion drugs to the State, a con­tent-based restric­tion on speech that stymies the abil­i­ty of the news media to report on this mat­ter of sig­nif­i­cant pub­lic inter­est, and a denial of the public’s qual­i­fied First Amendment right of access to infor­ma­tion about the source of the drugs used in executions.”

The brief filed by the Indiana news­pa­pers argued that ​“declar­ing death penal­ty records con­fi­den­tial” by bury­ing a secre­cy statute deep with­in the legislature’s bien­ni­al bud­get bill vio­lat­ed Indiana’s con­sti­tu­tion­al require­ment lim­it­ing the scope of state leg­is­la­tion to a sin­gle sub­ject. “[T]he Indiana Constitution,” the news­pa­pers’ brief said, ​“for­bids such deceptive bill-packaging.”

Indiana is one of eleven states with secre­cy statutes that con­ceal the iden­ti­ty of the sup­pli­ers and man­u­fac­tur­ers of drugs used in exe­cu­tions. Indiana argued that the refusal of com­pa­nies to pub­licly pro­vide these drugs has led to short­ages and delayed exe­cu­tions in many states, includ­ing Indiana. In their brief to the state supreme court, the state con­tend­ed ​“the lack of con­fi­den­tial­i­ty has made it increas­ing­ly dif­fi­cult for states to car­ry out law­ful­ly imposed sentences.”