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.”