House, Senate Judiciary committees back secrecy rule for execution drugs, as state appeals court ruling

From the Twin Falls Times-News


BOISE — Companies that supply Idaho with drugs used to execute death row inmates will remain secret for now, despite objections from some lawmakers and open-government advocates.

Rules outlining the state’s process for the death penalty were approved Wednesday by committees in the House and Senate.

The rules prevent the Department of Correction from sharing information that could jeopardize the ability to carry out an execution. They were updated last year to clarify specific exemptions, like the names of medical staff carrying out the execution.

But the update also included a provision that prevents disclosure of information that would identify the pharmaceutical company supplying the state with lethal injection drugs — a long-debated issue in the state.

Department director Josh Tewalt said most details on executions are already publicly available. Allowing the supplier to be identified would create negative attention, limiting the state’s access to the drugs, Tewalt said.

“Our interests are aligned with people who have concerns about the process,” he said. “None of us want this to be a process that is conducted without integrity, without professionalism.”

University of Idaho law professor Aliza Cover sued for access to the supplier information in 2018. A state judge ruled the department had violated the public records law by withholding the information, but the decision was appealed and will go before the Idaho Supreme Court later this year.

Cover said the rule undermines democratic participation and government accountability and increases concern about “botched” executions. As execution drugs have become less available, states like Idaho have increased secrecy and many in the public may be uncomfortable if they knew the process, Cover said.

“Idahoans, whatever their view on the death penalty, have an interest in knowing how their officials are obtaining those drugs and how they are using taxpayer dollars,” she said. “It seems now the Board of Correction is seeking not to increase its transparency but to limit it further.”

Members of the ACLU and the Idaho Press Club also spoke in opposition to the rule.

Agencies in Idaho use administrative rules to interpret and enforce state laws. Idaho’s public records law allows the Board of Corrections to set it’s exemption rules but requires them to balance the need for secrecy versus the public’s right to know.

Rep. Jason Monks, R-Nampa, said the rule simply clarifies the existing rules.

“I believe the department had the ability to withhold that information before because this … could jeopardize the department’s ability to carry out that execution,” Monks said.

A court already decided the rule violated public records law, and adding it would open the state up for more litigation, Rep. John Gannon, D-Boise, said.

“I think the best thing to do at this point is to follow the decision that’s been made and to be careful what we put in rules,” Gannon said. “It will just end up costing more money in legal fees if the department is wrong again.”

A motion in the House committee to reject only the section related to the exemption for suppliers failed 7-11. The rules were approved as written on a subsequent vote.

The Senate committee also approved the rules as written, with Sen. Grant Burgoyne, D-Boise, casting the lone vote against. He said the rule could violate public records law and disclosure benefits those for and against the death penalty.

“I do not think that looking at (the statute) that the interest in confidentiality clearly outweighs the public interest,” Burgoyne said.

From the Twin Falls Times-News

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