State Supreme Court again rules state must release execution drug labels, if redacted | Arkansas Blog

Thursday, March 29, 2018

State Supreme Court again rules state must release execution drug labels, if redacted

Posted By on Thu, Mar 29, 2018 at 4:47 PM

On Thursday, the Arkansas Supreme Court partially affirmed a circuit court ruling that ordered the state Department of Corrections to release package inserts and labels for its supply of potassium chloride, one of three drugs Arkansas uses in lethal injections.

However, the court agreed with the state's assertion that it was still required to redact certain information from the labels that could identify who sold or supplied the drug to the state. The justices remanded the case back to Circuit Judge Wendell Griffen to determine which specific information must be redacted.

Here's the opinion, authored by Justice Karen Baker.

The ruling mirrored a decision made by the court in November over another drug used in the execution protocol, the sedative midazolam. Attorney Steve Shultz filed almost identical Freedom of Information Act complaints against the state last year — one for midazolam, one for potassium chloride — over the prison system's unwillingness to release drug labels.

The state argued in both cases that it was shielded from the FOIA by a law passed by the legislature to provide secrecy to those who supply the state with lethal drugs — a critical issue because drug manufacturers object to the use of their products for capital punishment. Arkansas, like many states, has struggled to obtain drugs that it can use to carry out executions.

The two cases landed in different circuit courts — the potassium chloride complaint with Griffen, the midazolam complaint with Circuit Judge Mackie Pierce. Both judges ruled against the state, and which appealed both cases to the Supreme Court.

The state had argued it should be able to prevent release of the labels so as to protect its access to drugs. In the past, reporters and attorneys have been able to determine the identity of drug manufacturers by comparing redacted labels and inserts, which are often "unique with respect to format, style, diction, font, organization, grammar, spelling, size, shape, coloring, and appearance," according to a state affidavit referenced in the court's opinion.

As with its decision on the midazolam case, the court Thursday said that the FOIA exemption law created by the legislature applies only to drug sellers and suppliers — not to drug manufacturers, which are typically different companies.

But, the justices added, "if we agree with the circuit court that the confidentiality of manufacturers is not protected under the statute, it is still required to redact certain information such as lot, batch, and/or control numbers that could lead to the identification of other sellers and suppliers in the chain of distribution."

As with the November ruling, the court was split. Justices Jo Hart and Courtney Goodson agreed fully with Baker. Justices Rhonda Wood and Shawn Womack agreed that supplier information should be redacted but said manufacturer information should also be withheld.

Chief Justice Dan Kemp and Justice Robin Wynne also dissented in part, pointing to their reasoning in the midazolam case. In that instance, they disagreed with sending the case back to Judge Pierce to consider what information should be redacted from the labels.

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