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Nebraska Must Disclose Lethal Injection Records

By Christopher "Spike" Eickholt

On May 15, 2020, the Nebraska Supreme Court issued a strong opinion in support of open government and transparency in the death penalty process. The State Department of Correctional Services (Department) had refused to produce government records relating to the identity of a drug supplier from which the state had obtained lethal injection drugs for purposes of carrying out state executions. The case, State ex rel. BH Media Group v. Frakes, 305 Neb. 780 (2020), was a consolidated case of actions filed by the ACLU of Nebraska and reporters, in which the plaintiffs had requested information pursuant to Nebraska's Public Records Act from the Department as to the identity of their drug supplier.

Even though the Department had provided the requested information to plaintiffs in earlier public records requests, the Department—for the first time—claimed that the records were exempt under the Public Records Act because some of the information contained in the requested records could lead to the identity of an execution team members. Nebraska statute provides that the identity of death penalty execution team members is confidential. Neb.Rev.Stat. §83-967 (Reissue 2016). Of note, Nebraska law does not include a drug supplier as an execution team member.

The Nebraska Public Records Act (at Nebraska Revised Statutes §§84-712 to 84-712.09) generally provides that all government documents are presumed to be public unless another statute specifically exempt them and provide that they are not to be released. The Act provides that "except when any other statute expressly provides that particular information or records shall not be made public, public records shall include all records and documents, regardless of physical form, of or belonging to this state". Neb.Rev.Stat. §84-712.01(1) (Reissue 2016). As a general rule, governmental records are considered public in Nebraska unless they are specifically made non-public. The Department claimed that a statute which provided that the identity of execution team members be confidential also provided that the lethal injection drug supplier's identity could not be disclosed either.

The plaintiffs prevailed at the trial court and the trial court directed the Department to produce most of the requested records. At trial, the Department claimed that the records should not be released, because their release might lead to the identity of an execution team member. The trial court rejected the assertion of the Department that disclosure might lead to the identity of a team member as "speculative at best". The court did refuse to direct the Department to produce some of the records that contained information "on their face" relating to the identity of an execution team member.

The Department appealed to the state Supreme Court and the plaintiffs cross-appealed requesting that withheld documents be produced after the identifying information being redacted.

The Nebraska Supreme Court decided unanimously that the trial court was right to reject the Department's assertion that release of the requested records could lead to the identity of the team members as speculative. The Supreme Court restated its earlier holdings that statutory exceptions to the Public Records Law are to be interpreted narrowly, and consistent with open government. A statute must "expressly provide" that otherwise public records are exempt from disclosure. A statute cannot generally or implicitly provide for exemption from public records. The Supreme Court emphasized that the provisions of the public records law are to be read with a liberal interpretation for openness in government records and documents. The trial court was right to reject the Department's assertion that the statute providing for confidentiality of team members justified withholding the requested records.

Referring to plaintiff ACLU of Nebraska, the Department also argued that it should be allowed to withhold records because the requesters were death penalty opponents and sought the records as part of a national advocacy effort to oppose the death penalty. The Court rejected the argument as having "no merit" because "[the Department's] duty to disclose public records does not depend on who makes the request". State ex rel. BH Media Group v. Frakes 305 Neb. 780, 800 (2020). And more fundamentally, "[a]s a general rule, citizens are not required to explain why they seek public information." Id. at 801.

With respect to plaintiffs' cross-appeal, the Supreme Court reversed the trial court's ruling permitting the Department to withhold certain documents and directed the trial court to order the Department to produce the requested records after redacting information identifying team members. The withholding of an entire document by an agency is not justifiable simply because some of the material therein is subject to an exemption. The Supreme Court explained that a public agency cannot simply claim that requested records contain exempted material and then withhold the documents. The public body must do more than merely assert an exemption and instead has the burden to show that the exempt portion of the documents are not segregable from the non-exempt material. Any justification offered by the public body must be relatively detailed, correlating the specific part of the requested documents with the basis for the applicable exemption, and must provide detailed justification other than conclusory statements that the document is not reasonably segregable. Id. at 806.

The Supreme Court remanded the case to the trial court to direct the trial court to mandate that the Department produce all records requested, and to redact several categories of records that in fact identified an execution team member. The Supreme Court further awarded attorney fees to the plaintiffs.

Christopher "Spike" Eickholt is an attorney at Eickholt Law, Nebraska. Shawn D. Renner, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., represented BH Media Group, Inc., and Lee Enterprises, Inc.

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