Gov. Lee’s office refuses to release execution records
State officials — including Gov. Bill Lee — continue to shield public information about last month’s delayed execution of Oscar Franklin Smith.
Lee’s office cited the deliberative process and attorney-client privileges in response to multiple requests from The Tennessean and other news organizations for public records from the Tennessee Department of Correction and his own office.
The Lee administration has broadly used both deliberative and so-called executive privilege exemptions throughout his administration, and the habit has been challenged under state open records laws.
Lee paused all executions in Tennessee through at least the end of 2022 to allow an independent review by former U.S. Attorney Ed Stanton, the Republican governor announced Monday. Stanton is a former U.S. attorney for West Tennessee under the Obama administration.
Smith, 72, was set to be executed on April 21 but received a temporary reprieve from Lee approximately an hour before his scheduled death. Early responses to reporters deferred to Lee’s initial statement, which only mentioned an “oversight” in the lethal injection protocol.
On Monday, Lee expanded the statement to “technical oversight,” indicating the drugs to be used in Smith’s execution were not properly tested.
Tennessee’s lethal injection protocol is public but many details, including the source of the drugs’ raw materials and their processing, are shielded. The drugs are supposed to be tested for potency, sterility and purity.
In a statement announcing the external review, Lee indicated the drugs were not properly tested for endotoxins, a sign of bacterial contamination.
Emails released to The Tennessean under a records request were few and showed the governor’s staff directing all queries to the initial “oversight” statement and the executive’s office.
Prison officials did not previously respond to a query on why the agency was not acting as custodian of its own
records. A spokesperson for the agency on Wednesday said responsive records were still being redacted. State law shields the identity of anyone who performs an execution in Tennessee.
Lee’s disputed practice of citing deliberative process has already made its way to the courts. A state employee last year sued his office over the privilege, leading the state to release parts of a $1.5 million taxpayer-funded report rather than continue to fight the suit. The state is currently fighting a related but broader lawsuit on the issue filed by the Nashville Post.
There is no mention in state open records laws to a deliberative process exemption, which is specifically outlined in federal law. The few times Tennessee judges have weighed in on the issue have involved private discussions, such as meeting notes or staff communications.
The administrations of both Democratic Gov. Phil Bredesen and Republican Gov. Bill Haslam also cited deliberative process in withholding records from the public.