Appeals court may consider judge’s ruling that state wrongfully withheld information on execution drugs

The Tennessee Department of Correction successfully evaded a Knox County judge’s order to release by the close of the business day yesterday public records about the expiration date of the drugs set to be used in the upcoming execution of Harold Wayne Nichols. The execution proceeded this morning.

However, the Court of Appeals that issued a temporary stay on the judge’s order on Wednesday evening has not ruled yet on whether to grant the state’s request for an interlocutory appeal of the judge’s order or on the judge’s finding that the records were being wrongly withheld by the state.

Megan Kerrigan with Federal Defender Services of Eastern Tennessee had sought to get the expiration date of the drugs to be used in the execution, in part concerned that faulty or expired drugs could lead to problems in the execution. She also sought records from two previous executions this year. After being denied access, she filed a  lawsuit under the Tennessee Public Records Act on Oct. 27 in Knox County.

Prison officials resist releasing expiration date on execution drugs

The Department of Correction said that releasing the expiration dates would allow the public to identify the source of the drugs, and cited a statute that makes confidential the names of the entities that provide the state execution drugs. The statute says (with relevant part in boldfaced and underlined):

(h) (1) Notwithstanding any other law to the contrary, those parts of the record identifying an individual or entity as a person or entity who or that has been or may in the future be directly involved in the process of executing a sentence of death shall be treated as confidential and shall not be open to public inspection. For the purposes of this section “person or entity” includes, but is not limited to, an employee of the state who has training related to direct involvement in the process of executing a sentence of death, a contractor or employee of a contractor, a volunteer who has direct involvement in the process of executing a sentence of death, or a person or entity involved in the procurement or provision of chemicals, equipment, supplies and other items for use in carrying out a sentence of death. Records made confidential by this section include, but are not limited to, records related to remuneration to a person or entity in connection with such person’s or entity’s participation in or preparation for the execution of a sentence of death. Such payments shall be made in accordance with a memorandum of understanding between the commissioner of correction and the commissioner of finance and administration in a manner that will protect the public identity of the recipients; provided, that, if a contractor is employed to participate in or prepare for the execution of a sentence of death, the amount of the special payment made to such contractor pursuant to the contract shall be reported by the commissioner of correction to the comptroller of the treasury and such amount shall be a public record.
(2) Information made confidential by this subsection (h) shall be redacted wherever possible and nothing in this subsection (h) shall be used to limit or deny access to otherwise public information because a file, a document, or data file contains confidential information.

Knox County Chancellor John Weaver rejected the state’s argument. On Monday, Weaver ruled that the state must immediately produce records with the expiration dates, allowing the state to redact only information identifying the manufacturer or distinctive to the manufacturer.

On Wednesday, he gave the state until the close of the business day to produce the records.

At 4 p.m. on Wednesday, the state filed an emergency motion with the Court of Appeals to stay the chancellor’s order saying the records showing the expiration dates of the drugs “have a substantial risk of unmasking Tennessee’s source of lethal injection chemicals.” The Court of Appeals granted the motion in a short per curiam decision, halting Weaver’s order until it either granted or denied the state’s application to appeal. The court of appeals did not rule on the substance of Weaver’s ruling on the public records law. That could come at a later date.

In the case, Kerrigan v. Patrick Newport, Weaver examined the records responsive to Kerrigan’s request in an in camera review.

In his ruling, Weaver said the in camera review showed the correction department had records showing use-by dates on lethal injection materials, appearing on the packaging and bottles or vials for the chemicals. Because the packaging or vials could have distinctive characteristics that could identify the manufacturer, Weaver said the state should extract the nonconfidential information and produce it, noting extracting the use-by dates would take minimal effort. He also said expiration dates should not be redacted from the state’s certificates of compliance and analysis that go to quality assurance and quality control testing.

Some of the requested records also related to information about the execution drugs for two other executions earlier this year — of Oscar Smith and Byron Black.

In addition to asking for expiration dates for drugs, Kerrigan sought and was denied access to the the vital sign monitoring strips of Smith and Black in the previous executions. The correction department had said that the monitoring strips, such as an EKG strip, was confidential under a public records exemption that covered “medical records of persons receiving medical treatment, in whole or in part, at the expense of the state, county or municipality.”

Weaver said in his ruling that there was no suggestion that the vital sign monitoring strips of an inmate during the execution were records of a patient receiving medical treatment, but rather “are records from the execution of inmates.”

And the correction department, at the show cause hearing after the lawsuit was filed, withdrew this reason and asserted instead that monitoring strips were exempt instead under the department’s rules and regulations, specifically, Tenn. Comp. R. & Reg 0420-01-02-06. That regulation states:

0420-01-02-.06 CONFIDENTIAL INMATE INFORMATION.

(1) The following information is considered confidential and shall not be released to the general public absent a valid court order or subpoena:

(a) Inmate medical or mental health records.

(b) Inmate educational records.

(c) Investigative records or reports of the Department’s internal affairs section.

(d)   The name or any identifying information relating to any Department of Correction employee, law enforcement officer or informant or inmate, the public disclosure of which would tend to place the safety of said individual in jeopardy. Inmates may, however, review and obtain copies of their educational, medical or mental health records as provided for in Department of Correction policy, and copies of these records may be released with the inmate’s consent.

(2) Any individual whose request for information from an inmate’s record is denied shall be informed of the reason for the denial of the request and may appeal any such denial to the commissioner, or an individual designated by the commissioner to hear such appeals.

(3) Any individual whose request for inmate information is denied following appeal to the commissioner, or his designee, may obtain judicial review of the denial pursuant to TC.A. §10-7-505.

Weaver rules that prison department regulations can’t trump the public records law

Weaver ruled that the department’s regulation does not apply, saying in his order that “any such rule or regulation would be in conflict with the governing statute for public records and ineffective for relieving the TDOC of its duties under the Public Records Act.”

Weaver noted that the correction department “has enacted its own confidential records provisions…(and) such provisions are invalid to the extent that they conflict with the Tennessee Public Records Act.”

Finally, Kerrigan stated in her petition that she is not seeking attorney’s fees, but asked that Weaver make a finding that the Department of Correction knew that the records it withheld were public and willfully refused to disclose them.

Weaver wrote in his ruling that there was no evidence outside the Kerrigan’s petition on the issue and that “(t)he issue of ‘willfulness’ has not been sufficiently heard.” Weaver said he would set the issue of “willfulness” and assessment of costs, excluding attorney’s fees, for a subsequent hearing.

2022 investigative review reveals missteps in executions

This is not the first time the state has faced questions and resisted efforts to get information about executions.

In 2022, an investigative review released by Gov. Bill Lee has revealed a number of missteps, sloppiness and failures by prison leadership and staff and the individuals and companies with which they worked to carry out executions.

Importantly, the investigation exposed that the department of correction for years has not followed its own protocols for testing the lethal injection drugs it received from a non-traditional pharmacy to ensure they were not defective.

The investigation, led by former U.S. Attorney Edward L. Stanton III with Butler Snow law firm, found that the state simply had a focus different from the integrity of the execution itself.

“TDOC leadership viewed the lethal injection process through a tunnel-vision, result-oriented lens rather than provide TDOC with the necessary guidance and counsel needed to ensure that Tennessee’s lethal injection protocol was thorough, consistent, and followed,” the report said.

Of the seven executions carried out since a new protocol was established in 2018, only once were any of the lethal injection chemicals tested for endotoxins as required by the protocol, the 2022 investigation showed. Testing for endotoxins ensures that injection drugs have not been contaminated and will work as intended.

This is significant because questions about defective lethal injection chemicals have been an ongoing concern, particularly as states have turned to secret compounding pharmacies to get the drugs and as one of the drugs that is supposed to sedate the inmate, midazolam, has become suspected in botched executions around the country.

After the investigative report, the state said it would update its execution protocols.