By Jeremy Kohler
St. Louis Post-Dispatch
ST. LOUIS — The American Civil Liberties Union of Missouri is suing the state corrections department, alleging that it ignored the group’s request to view records about the state’s execution drug.
In the lawsuit filed Friday in circuit court in Cole County, the group said it submitted a written request on Aug. 26 for records concerning the state’s supply of the drug propofol, which the state plans to use for executions on Oct. 23 and Nov. 20.
The department responded two days later to say it would take three weeks to respond. But the records were not provided, and the department did not return phone messages on Monday and Wednesday this week, the lawsuit said.
The ACLU asked the court to find that the department knowingly violated the law and to order the department to release the records and pay civil damages and lawyers’ fees.
The Missouri Sunshine Law provides that public records are presumed to be open to inspection by the public, and that government agencies must apply exemptions narrowly. The public body must act on the request as soon as possible and within three days of receiving the request, but that the body can take more time if it is needed, for example, when records are stored at an offsite archive. If access can not be granted immediately, the law says the custodian of records must explain the cause of the delay and provide a date the records will be available.
Any person who knowingly violates the law is guilty of a class-A misdemeanor, punishable by up to one year in prison.
Department of Corrections representatives did not immediately respond to a phone call and email from a reporter seeking a response.
“It has now been more than five weeks without the records, without communication, and without responding to phone calls,” Tony Rothert, the the ACLU’s legal director, said in a statement.
The Associated Press reported last week that the anti-death penalty European Union is considering export limits on propofol if it is used for lethal injections. Makers of the drug say that could slow movement to the U.S. and create a propofol shortage that could endanger the well-being of patients.
The ACLU was seeking to determine how the state was able to obtain the drug when all the leading makers, who oppose its use in executions, refuse to sell it to prisons or corrections departments, according to the lawsuit. The request also sought records to determine the expiration date of Missouri’s supply.
“There is serious doubt that the Missouri Department of Corrections lawfully or ethically possesses the drug it plans to use to end a life later this month,” said Jeffrey A. Mittman, executive director of the ACLU of Missouri, in a statement.
“The public has a right to know the details of how the state came into possession of this highly controlled drug. Propofol’s makers have gone to great lengths to ensure their drug is not used for executions, so the DOC’s plan to do so may jeopardize the U.S. supply of the drug, which is widely used as a safe and effective anesthetic.”