IDOC tightens execution drug secrecy rules

From the Associated Press

By Rebecca Boone

BOISE, Idaho (AP) — Idaho prison officials have changed their administrative rules to ensure secrecy surrounding the source of the state’s lethal injection drugs.

Like previous versions, the rule updated earlier this year forbids the Idaho Department of Correction from disclosing “under any circumstance” information that department director Josh Tewalt determines could jeopardize the department’s ability to carry out an execution. But this version also specifically forbids the release of information that could potentially identify both past and future suppliers of lethal injection drugs.

The rule doesn’t include allowances for court orders. That could complicate an appeal in a lawsuit against the department from a University of Idaho professor who is seeking access to lethal injection records. A state judge has ordered the state to turn over the documents, but prison officials have appealed and the state Supreme Court is expected to hear the case next year.

“This certainly raises some concerns with what the judge has ruled,” Kathy Griesmyer, policy director with the ACLU of Idaho, said on Monday.

The American Civil Liberties Union is representing the professor, Aliza Cover, who sued the Idaho Department of Correction under Idaho’s public record law for access to the documents and won much of what she sought under a ruling from 4th District Judge Lynn Norton.

Shortly after correction attorneys filed the appeal in May, the Board of Correction approved the rule change.

Similar attempts to increase secrecy have failed in the past. In 2015, Tewalt — then the deputy prison chief — pushed for a state law that would have made it illegal for the department to turn over records involving the source of lethal injection drugs in response to subpoenas or other preliminary legal inquiries. The legislation never made it beyond the Senate Judiciary and Rules Committee amid concerns that it was overly broad.

Idaho Department of Correction spokesman Jeff Ray said the rule was adopted during a public meeting and doesn’t exempt any new information or make substantive changes to current procedure.

“Rather, the revisions articulate precisely what information is exempt from disclosure,” Ray wrote in an email on Tuesday.

The rule is part of the Idaho Administrative Procedure Act, a document of state policies that also spells out how state agencies interpret and enforce state law.

The state Public Records Act itself doesn’t specifically exempt the source of lethal injection drugs from being released, but does give the Board of Correction the authority to set the administrative rules regarding executions.

Still, the law says those rules have to be done pursuant to a “balancing test,” a process in which board members must weigh the need for secrecy against the public’s right to know.

That balancing test is at the heart of Cover’s lawsuit against the department.

“What this non-disclosure rule does is circumvent that balancing test,” said Griesmyer. She said her organization would ask lawmakers to reject the rule during the upcoming legislative session.

From the Associated Press

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