LINCOLN, Neb. (CN) — The Nebraska Supreme Court ruled Friday that corrections officials in the state must share documents related to the state’s half-decade effort to acquire and use new lethal-injection drugs.
For five years, Scott Frakes, director of the Nebraska Department of Correctional Services, has resisted Freedom of Information Act requests from ACLU Nebraska and two newspapers in the state to hand over internal communications. His argument was that such records are not subject to public records statutes, and he appealed a Lancaster County District Court ruling that determined he was in error.
Friday’s ruling by Justice Jeffrey J. Funke mandates that Frakes and corrections officials honor the information requests.
“An exemption from disclosure should not be misunderstood as an exception to the laws of public records statutes,” Funke wrote, criticizing a broad interpretation that was used as an end run around precedent and state public record laws.
Funke cautioned that, were the court to accept Frakes’ view that confidentiality laws grant his department “complete exception to public records statutes,” then public officials would be under no obligation to grant requests, keep requests on file or even acknowledge the existence of certain records.
“Because Frakes’ contentions contradict the text of Nebraska’s public records statutes and are adverse to this court’s public records precedent, we find that his appeal is without merit,” Funke wrote for the high court.
On a cross-appeal filed by the Omaha World-Herald, Lincoln Journal Star and ALCU of Nebraska, the court ruled that for records which contain some confidential information, the department should redact the sensitive parts but otherwise release information that is public record.
The state has refused to redact specific lines and argued that the presence of confidential information made an entire document confidential, as the information could lead to the identification of drug suppliers and specific “execution team” members.
This logic was used to keep inventory logs, chemical analyses and purchase orders secret from media scrutiny. Two reporters who testified had asserted that they would contact and interview drug suppliers if they were known.
Barring further delays, the information could be made available as soon as June.
Danielle Conrad, executive director of ACLU of Nebraska, praised the ruling.
“We’re pleased the court agreed that Nebraskans have a right to know what the state is doing with taxpayer dollars and will finally bring transparency to this suspect process,” Conrad said in a statement.
In a statement, Nebraska Attorney General Doug Peterson said he "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 state’s saga with capital punishment has been especially fraught the last five years.
In 2015, the Nebraska Legislature banned executions, though that was overturned by a ballot initiative a year later. In the meantime, the state illegally purchased execution drugs from a broker in India — only to see the shipment confiscated by federal regulators — then developed a new execution protocol that it has been able to keep largely secret from public view.
Despite concerns about the legitimacy of the protocol and transparency objections raised by pharmaceutical companies, Nebraska executed prisoner Carey Dean Moore in August 2018, its first execution in 21 years. Since then, corrections officials have acknowledged they lack the drugs to proceed with another execution, as their old supply expired and no manufacturer will sell them the needed compounds if they will be used for harm.
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