Utah Prisoners’ Request for Information Thwarted by New Legislation Increasing Secrecy in Execution Procedures

On February 16, 2024, Utah Governor Spencer Cox signed Senate Bill 109, Corrections Modifications, into law, “amend[ing] provisions related to the [Utah] Department of Corrections.” S.B. 109, described as an “uncontroversial” legislative measure, was belatedly amended to include a provision preventing the public disclosure of “identifying information” about individuals involved in carrying out executions, the procurement of drugs and supplies needed for executions, and any identifying information about those involved in the manufacturing or producing of the drugs and supplies. The new secrecy provision will now make it almost impossible for members of the public or prisoners to learn critical details about the execution process.

S.B. 109 was introduced in the Utah legislature in early January by Senator Derrin Owens. At the initial House Law Enforcement and Criminal Committee Hearing, along with Executive Director of Utah Department of Corrections (UDC) Brian Redd, he told committee members that the bill would “help improve retention and recruitment, better supervise people on parole, and help people be more successful when they reenter the community and to reduce the number of people who return to prison.” Two weeks after the bill’s introduction, an amendment was introduced “without any discussion, debate, or public comment,” and added the secrecy provision to Utah Code 64-13-27. Importantly, the language of this amendment prevents the release of information even when ordered by a court “through discovery or other judicial processes or orders; and may not be introduced as evidence in civil proceeding, criminal proceeding, an agency proceeding, or any other administrative or judicial proceeding.”

The new legislation is the latest chapter in a year-long effort by Utah death-sentenced prisoners to obtain information about execution methods from the UDC. In March 2023, counsel for several prisoners filed information requests with UDC seeking information regarding the state’s efforts to acquire lethal injection drugs. These attorneys were quickly told by UDC that it did not have any “responsive documents” to their requests. Counsel submitted an additional information request in September 2023, again requesting information related to UDC’s efforts to obtain drugs for executions. UDC took nearly two months to reply, during which time the Third Judicial District Court for Salt Lake City, Utah held oral arguments in UDC’s request to dismiss a lawsuit about the information request. At the hearing, UDC officials told the court that counsel could obtain the requested information under the Government Records Access and Management Act (GRAMA). In November 2023, UDC released “limited information that indicated it was inquiring with the Drug Enforcement Agency about the legality of obtaining Pentobarbital for use during executions.” The information released at this time dates back to 2011, a disclosure at odds with previous official statements that responsive documents did not exist.

After receiving this information, counsel for the Utah prisoners requested that UDC turn over additional information pertaining to drug manufacturing and procurement. Counsel resubmitted a GRAMA request in December 2023, and nearly two months later, were again told that there were no additional responsive records. On February 14, 2024, counsel refiled the GRAMA request seeking updated information on Utah’s efforts to acquire lethal injection drugs. With Governor Cox’s signing of this legislation, UDC denied counsel’s request for new information, citing the language of the newly amended and signed legislation as reason for the denial.

Counsel for the prisoners now allege that Utah “purposefully withheld the release of existing, responsive documents in order to wait out the amendment to GRAMA to avoid disclosing crucial information about the state’s search for drugs,” they said in a recent motion. “Utah’s attempt to conceal the drugs intended for Plaintiffs’ execution is constitutionally intolerable.”