Metropolitan News-Enterprise


Wednesday, December 21, 2011


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Documents Identifying Suppliers of Execution Drugs Are Public Record, Court of Appeal Rules


By SHERRI M. OKAMOTO, Staff Writer


The state cannot withhold the names of the pharmaceutical companies from which it acquires the drugs used in its lethal injection protocol in response to a Public Records Act request for this information, the First District Court of Appeal ruled yesterday.

Div. Two concluded “the passionate nature of the death penalty debate…heightens public interest in the information at issue in this case” and “justifies nondisclosure only to the extent it may show that that disclosure of that information would pose a potential security threat of some sort” to the pharmaceutical companies from which the California Department of Corrections and Rehabilitation sought to obtain sodium thiopental.

Sodium thiopental is a barbiturate sedative intended to render a condemned inmate unconscious and anesthetize him from the pain resulting from the two subsequently injected drugs—pancuroniam bromide, a neuromuscular blocking agent that induces paralysis, and potassium chloride, which causes cardiac arrest—used in executions in California.

Last September, a death row inmate scheduled to be executed intervened in federal proceedings challenging the California protocol and sought a stay of execution. The district court hearing that case issued a conditional stay order directing the inmate to make an election whether to be executed by the three-drug protocol or by injection of sodium thiopental only. The inmate declined to make the election and instead filed a motion in the Ninth U.S. Circuit Court of Appeals to stay execution. 

The Ninth Circuit later ruled that the district court’s unilateral decision to provide the inmate the one-drug option was “improper,” and in its decision, the court acknowledged a dispute regarding whether the state had a sufficient supply of sodium thiopental to implement the one-drug option. The appellate panel further noted that the state’s supply of sodium thiopental was set to expire Oct. 1, 2010.

After the expiration date passed, the American Civil Liberties Union of Northern California sent a request to the CDCR a request for documents and other materials pertaining to its acquisition and use of the drug, including documents indicating “how much the state paid for the newly acquired sodium thiopental, how payment was made and from what account,” from whom the department most recently acquired the drug, “[a]ll communications, internal or external, regarding efforts by CDCR to obtain sodium thiopental between August 1, 2010, and today,” and “[a]ll documents relating to attempts by the CDCR to acquire sodium thiopental, successful or unsuccessful,” during that period.

The state responded that the request was “partially denied” since some of the requested materials were “protected by the attorney-client privilege, attorney work product, or were specifically prepared for CDCR’s use in pending litigation” and therefore exempt from disclosure. Others, the state said, “would impose an unwarranted invasion of personal privacy, personnel records, or records deemed ‘protected information’ ” by a federal protective order.

The ACLU then commenced a writ proceeding in the San Francisco Superior Court, and Judge Charlotte Walter Woolard issued a ruling authorizing the state to withhold “the names of pharmaceutical companies and other businesses and individuals, and the names of these companies’ employees, the CDCR contacted in connection with its efforts to obtain sodium thiopental.” 

Woolard also approved two challenged redactions which deleted information from e-mails between CDCR employees on the found that the redacted portions were “not responsive” to the ACLU’s request.

The ACLU petitioned for a writ on mandamus challenging both of these rulings.

Writing for the appellate court, Presiding Justice J. Anthony Kline said that Woolard’s determination that nondisclosure was warranted “to protect privacy and security interests for the reasons identified in CDCR’s supplemental brief” was not supported by substantial evidence.

He acknowledged that capital punishment evokes strong reactions in many members of the public, and that such controversy could place those involved in the execution process in danger, but reasoned that since “CDCR offered no evidence of any potential threat to the security of any pharmaceutical company or an employee of such a company, or potential invasion of privacy, the record provides no basis upon which to exempt the information at issue….”

The justice also explained that the act does not bar an agency from redacting non-responsive information from a disclosed document, but said that agency bears the burden of affirmatively showing that withheld materials need not be disclosed. 

Kline suggested that “there may be a particular reason for concern” in such a situation since any need for redaction “seems highly questionable, as the information is not claimed to be exempt.”

He said these circumstances raise a risk of an agency “using nonresponsiveness as an excuse to avoid disclosure of information that is not exempt but that the agency for some other reason does not want public,” which would defeat the purpose of the act.

Joined by Justices James R. Lambden and James A. Richman, Kline ordered the portions of the trial court’s decision authorizing the state to withhold documents identifying pharmaceutical companies and other entities from which CDCR sought to obtain sodium thiopental and to redact portions of disclosed documents the agency deems “not responsive” to the ACLU’s request be reversed. The panel remanded the case to the superior court for further proceedings.

The case is American Civil Liberties Union of Northern California v. Superior Court (California Department of Corrections and Rehabilitation), A131111.


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