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

The Texas 3^rd 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.