Texas must reveal lethal-drug suppliers
State court ruling supports public’s right to know in death penalty cases
AUSTIN — A Texas appeals court ruled Thursday against expanding government secrecy in a case involving the public’s right to know which companies supply the lethal drugs Texas uses to execute death row inmates.
The decision in favor of openness by the state’s 3rd Court of Appeals addressed the broader question of when potential safety concerns should override the public’s right to know how the state is spending taxpayer money.
Advocates for open government applauded the ruling.
“The public has a right to know how the state is handing out its ultimate punishment, and that means knowing details of the execution drug,” said Kelley Shannon, executive director of the Freedom of Information Foundation of Texas, a nonprofit promoting open government laws and the First Amendment rights.
Officials with the Texas Department Criminal Justice said they will appeal the ruling. The state had argued that the names and details about the suppliers should be kept secret to prevent them from being threatened or harmed by death-penalty opponents.
“As we have said repeatedly, disclosing the identity of the pharmacy will result in the harassment of the business and will raise serious safety concerns for the business and its employees,” said TDCJ spokesman Jason Clark.
The ruling upholds a decision by a state district judge in Austin that ordered officials to make information about drug suppliers public.
The lawsuit and appeal were filed by attorneys representing two condemned convicts challenging their impending executions. Both convicts were executed while the case was pending.
Attorneys for the inmates have argued that any threats are vague and should not preempt public disclosure.
The ruling likely will have limited effect immediately, because the Texas Legislature passed a law requiring state prison officials keep the identities of the drug makers secret.
But the case has been watched closely because it could be significant in other cases where the state has withheld information by claiming release could create “a substantial threat of physical harm” — a litmus test put in place by the Texas Supreme Court in a 2011 ruling involving gubernatorial security records.
The ruling is considered significant because it overruled the state’s assertion that the suppliers of lethal drugs were confidential under the Texas Public Information Act, said Maurie Levin, an Austin attorney who was one of three parties who challenged the secrecy.
“It’s a significant opinion because it affirms that the reasons (the state) used to withhold the information were not appropriate,” she said.
Shannon, with the Freedom of Information Foundation, testified during the 2015 legislative session that regardless of which side a person is on regarding capital punishment, the public needs to be able to scrutinize how the government is handing out justice.
“Transparency is key to having trust in the system,” she said. “The more transparency we have in government at all levels, the better. Government is not something that is supposed to operate in secrecy—not in our country.”