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.”