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 Corrections (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 Corrections 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."

(J. Moritz, "Arkansas high court rules prisons agency can keep some execution-drug information secret," Arkansas Democrat-Gazette, November 2, 2017; M. Brantley, "Supreme Court orders release of some execution drug information," Arkansas Times, November 2, 2017; A. DeMillo, "Arkansas ordered to release more info on execution drug," Associated Press, November 2, 2017.) Read the Arkansas Supreme Court's decision here. See Lethal Injection