Judge orders IDOC to disclose execution drug source, rules public records withheld in bad faith

From the Idaho Press

By TOMMY SIMMONS

A district court judge has ordered the Idaho Department of Correction to release an array of documents it denied in a 2017 records request — and included in those documents is the name of a source for chemicals used in a 2012 execution. The judge’s order also ruled the department’s deputy director acted frivolously and that its public information officer acted in bad faith in denying the public records request.

Aliza Cover, a law professor at University of Idaho, filed that request in September 2017. She wanted information about the Idaho Department of Correction’s source for chemicals it used to concoct the lethal injections used in executions in 2011 and 2012. Many pharmaceutical companies do not allow their drugs to be used in executions, and, in response many state departments of correction have turned to smaller compounding pharmacies and at least one other, overseas source. It creates the potential for the use of poorly regulated chemicals — and thus, torturous, botched executions. For example, the compounding pharmacy the department purchased drugs from for the 2012 execution can no longer supply drugs, because it could not meet the necessary standards.

But Idaho Department of Correction officials largely denied Cover’s request for information about the source of the drugs used in the 2011 and 2012 executions. If the names of their sources became public, officials argued, the public pressure on those sources would be so strong that they would no longer have dealings with the state — and thus the department would no longer be able to carry out executions.

That denial spawned a lawsuit, in which attorneys from the ACLU of Idaho represented Cover. The case went to trial in January and February, and revealed the department’s poor record-keeping practices, as well as the fact that department officials had contacted an India-based salesman for the necessary drugs, then responded inaccurately to a BuzzFeed News reporter’s request about it, saying they had not.

Since attorneys made closing arguments in February, 4th District Court Judge Lynn Norton has considered her ruling in the case, which she handed down Thursday.

While the department must turn over documents that will reveal the source of drugs used in the 2012 execution of Richard Leavitt — as well as information about those chemicals — they do not have to disclose the source of the chemicals used in the 2011 execution of Paul Ezra Rhoades, according to a news release from the ACLU of Idaho.

In addition to that, Norton found Jeff Ray, public information officer for the Idaho Department of Correction, acted in bad faith in withholding the information from Cover. She ordered him to pay a $1,000 fine — the most she could have ordered, according to Ritchie Eppink, attorney for the ACLU of Idaho, who litigated the case.

While Norton did not sanction Jeff Zmuda, the department’s deputy director, she did find he acted frivolously in withholding information as well.

“The court also found that Zmuda had testified disingenuously in an affidavit filed in the case,” according to the news release.

Norton’s order, known as a writ of mandate, is effective immediately, said Eppink. He said the ACLU of Idaho will demand the department turn over the documents previously withheld, and hopes to receive them not long after that.

Ray, the department’s spokesman, told the Idaho Press Thursday officials are “studying the ruling and weighing our options with legal counsel.”

From the Idaho Press

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