Texas Appeals Court Rules State Must Disclose Identity of 2014 Execution Drug Supplier

The Texas 3rd District Court of Appeals has rejected claims made by state corrections officials that disclosure of the identity of its supplier of the execution drug pentobarbital would expose the company to a “substantial threat of physical harm.” Finding these claims to be “mere speculation,” the appeals court ruled on May 25, 2017, that Texas must disclose the identity of the compounding pharmacy that supplied execution drugs to the state in 2014.

The ruling upholds a Travis County District Court order in a suit that was filed on behalf of two death-row prisoners under the state’s Public Information Act. The prisoners’ attempt to litigate a challenge to the state’s lethal injection practices failed to halt their executions, but the district court later determined that the identity of the drug supplier was “public information” subject to disclosure under the state public records law.

The Texas Department of Criminal Justice (TDCJ) had argued that information concerning the identity of the compounding pharmacy that provided execution drugs fell within a safety exemption in the act, which shields release of otherwise public information where disclosure would create a “substantial threat of physical harm.” The court found that TDCJ had shown nothing more than the risk of public criticism, which it said was not enough to block the supplier’s identity from disclosure. The court recognized that “[t]here are myriad reasons why a private business or professional involved in the [execution] process would not want that fact known publicly—potential adverse marketplace effects, unwanted publicity, critical written or oral communications from members of the public, or protests, to name but a few of the unpleasantries that can accompany one’s association with such a controversial public issue.” But under the law, the “sole permissible focus” is the “threat of physical harm from disclosure of the pharmacy’s or pharmacist’s identity—not, in themselves, any threats of harm to privacy or economic interests, threats of media or political ‘firestorms,’ or even threats of harm to property short of harm to persons.”

In 2016, a BuzzFeed News review of FBI records found that state claims that execution drug suppliers have been the subject of threats by anti-death penalty activists were largely unsubstantiated and exaggerated. Maurie Levin, one of the defense lawyers who filed the public records lawsuit, praised the court’s ruling, saying: “They stuck to the law … and the law affirms that those who are involved in government actions don’t get to be anonymous and might be subject to criticism and protest.” And she added, “That’s the nature of the beast. That is how our government works. I think the affirmation of those principles is really important.”

The decision is limited to the source of the state’s execution drugs in 2014, because the state passed a broader secrecy law after the suit was filed. TDCJ has said it will appeal the ruling to the Texas Supreme Court. Texas is also suing the federal Food and Drug Administration over its seizure of execution drugs the FDA has said Texas attempted to illegally import from India. The FDA seized the drugs in October 2015, and issued a final order in April 2017 refusing to release the drugs.