Can’t show lethal- drug labels, state says in case
The state says it cannot comply with some public disclosure requirements of the Arkansas Method of Execution Act because news reporters figured out where prison officials got some lethal- injection drugs using the limited materials the law allowed officials to release, according to a lawsuit filed Thursday.
The four- page lawsuit disputes that the Department of Correction can legally withhold those materials and is asking Pulaski County Circuit Judge Wendell Griffen to force department Director Wendy Kelley to release them.
The agency is breaking the law, both the execution law and the state’s Freedom of Information Act, by refusing to release the materials, the suit states.
The department’s “interpretation renders portions of Arkansas Code Ann. 5- 4- 617 … meaningless. In the context of these records, the [ execution law] specifically requires [ the department] to disclose the very materials requested by plaintiff in this action: the ‘[ p] ackage inserts and labels, if the drug or drugs … have been made by a manufacturer approved by the United States Food and Drug Administration,’” the lawsuit states.
The department’s “stated reason for refusing to produce the requested records is contrary to the plain meaning of the [ execution law] and constitutes a violation of the [ Freedom of Information Act]. Furthermore, [ the department’s] actions are contrary to established [ department] policies and procedures regarding disclosure of package inserts and labels.”
No hearing has been scheduled, but Little Rock lawyer Steven Shults is asking for the judge to hear the case within a week, since the state plans to begin two- aday executions on April 17 to put eight convicted killers to death.
The execution law bars the department from making public any information that shows where Arkansas gets the lethal- injection drugs. But the law allows the release of the drug labels and packaging inserts as long as some information is redacted.
The department has decided it cannot release even those materials since The Associated Press figured out the manufacturer of one of its drugs last year by comparing the redacted materials to readily available information on the Internet.
The department “has determined that it is prohibited from disclosing the pharmaceutical package inserts and labels,” Correction Department spokesman Solomon Graves stated in a letter contained in the lawsuit. The department “has determined that it would be impossible to disclose the inserts and labels … while simultaneously maintaining as confidential the identity of the suppliers and sellers of those drugs.”
The AP was able to show that the muscle relaxant Arkansas had acquired originated with the Hospira subsidiary of the pharmaceutical giant Pfizer, which has tried to prevent its products from being used in executions. Who sold the drugs to the state has never been revealed.
The drug labels are too distinctive to be made public and still maintain the level of secrecy required by the law, according to a March 10 letter to Shults from Graves.
“Given variations in format, style, diction, font, organization, grammar and spelling between the labels and inserts used by various manufacturers, a news outlet’s ability to identify the suppliers and sellers is unsurprising,” the letter states.
“Moreover, many manufacturers place semicolons and dashes in different places, include tables and charts, use different symbols and employ different numbering conventions. As a result, it is not possible to redact the labels or packaging inserts in a manner that would — as required by the Method of Execution Act — maintain confidentiality.”
According to the lawsuit, Shults has been regularly checking on the Correction Department’s lethal- injection drug stocks since October.
His inquiries, using the Freedom of Information Act, came shortly after a state legislator proposed that Arkansas study the possibility of suffocating inmates with gas if the Correction Department could not replenish its supply of lethal- injection drugs.
Shults began a weekly open- records request in February just as the U. S. Supreme Court refused an appeal by the eight inmates of the Arkansas Supreme Court decision that allows the state to resume lethal injections after 11 years of litigation.
Shults’ Freedom of Information Act request asked for a copy of the label for the 100 vials of potassium chloride the department acquired earlier this month. The department’s previous stock of the chemical expired on Feb. 1. Federal law bars the use of expired medications.
Potassium chloride is one of three compounds that state law requires to be used in executions. The drug stops the heart and is the last of the three to be administered. Inmates are first injected with the sedative midazolam to induce unconsciousness, then the paralytic vecuronium bromide to stop breathing.
The state’s supply of midazolam expires May 1 while the vecuronium bromide is good for another year.
Shults declined to comment Thursday afternoon on his interest in the drugs. Licensed since 1978, he is in practice with his father, Robert Shults, in the four- member Shults & Brown firm established by the senior Shults in 1965.
The firm prides itself on the free work it offers on cases related to education, the environment, race relations, poverty, efforts to improve the justice system and publichealth matters.
A graduate of Yale University and Harvard Law School, Steven Shults has been a member of the state Supreme Court Committee on Professional Conduct since 2006.