OMAHA, Neb. – Nebraska prison officials cannot withhold public records that reveal where they purchased their supply of lethal injection drugs, the state's highest court said Friday in a ruling that could threaten Nebraska's ability to carry out executions for the dozen men on its death row.
In ordering the documents to be disclosed for public scrutiny, the Nebraska Supreme Court sided with two newspapers and a prisoner advocacy group that sued the Department of Correctional Services after its 2017 refusal to release them. Before that, the department had regularly disclosed such records to anyone who requested them.
At the time, the agency was under mounting pressure to obtain lethal injection drugs as death-penalty critics questioned whether Nebraska would ever carry out another execution.
Pharmaceutical companies object to their products being used in executions and have sought to prevent pharmacies from providing them. Some states have moved to keep their suppliers secret, but Nebraska lawmakers have rejected “shield laws” that would have given prison officials the authority to withhold such records.
Media outlets including The Associated Press, The Omaha World-Herald and The Lincoln Journal Star filed formal requests in 2017 for purchase orders and other records that would have identified Nebraska's supplier. A leading prisoner advocacy group, the American Civil Liberties Union of Nebraska, filed a similar request.
The Omaha World-Herald, the Lincoln Journal Star and the ACLU of Nebraska sued after those request were denied, arguing that the department had violated Nebraska's open-records laws.
Prison officials said the supplier should be considered a member of the official “execution team,” whose identities are confidential under Nebraska law.
The high court rejected that, writing that the department’s “contentions contradict the text of Nebraska’s public records statutes and are adverse to this court’s public records precedent.”
Danielle Conrad, the ACLU of Nebraska’s executive director, said she was pleased with the court’s ruling “that Nebraskans have a right to know what the state is doing with taxpayer dollars.”
“Open, transparent government is a bedrock Nebraska tradition; it’s so deeply valued by citizens across the political spectrum because it provides a check on the abuses of big government," Conrad said.
A spokesman for the Department of Correctional Services said Friday that the state's supply of execution drugs has expired. Corrections Director Scott Frakes told a legislative committee in 2017 that it would be “very difficult” to acquire more drugs if the department was forced to identify its suppliers.
The Nebraska attorney general's office, which represented the department, issued a statement saying: “The Attorney General appreciates the Court providing clarity on multiple issues of first impression and on prior case law. Going forward, the Attorney General expects the parties will work together to bring this to a resolution.”
The case had been under appeal since a district court judge ordered the department to release the records in 2018. That same year, Nebraska executed its first inmate since 1997, using the drugs prison officials obtained from the unknown supplier.
Nebraska lawmakers narrowly abolished capital punishment in 2015, largely due to a coalition of conservative legislators who viewed it as a waste of money given how long it had been since the state had an execution. As lawmakers were considering the move, prison officials and Republican Gov. Pete Ricketts sent $54,400 in state money to a broker in India who promised to deliver lethal injection drugs. The broker later said his shipments were being blocked and refused to return the money.
The next year, voters approved reinstating capital punishment in a ballot measure that was partially financed by Ricketts, a death penalty supporter.
German drugmaker Fresenius Kabi told the AP in 2017 that one of its products had ended up in Nebraska's lethal injection supply. A spokesman said the company tried unsuccessfully to get the state to return the drugs.
Fresenius Kabi later alleged in a lawsuit that the state had procured even more of its drugs in violation of distribution contracts that prohibit the company's products from being sold to correctional departments.
The state currently has no executions scheduled.
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