By Chuck Lindell
Austin American-Statesman
AUSTIN, Texas — A state appeals court ruled Thursday that Texas prison officials must identify the pharmacy that supplies the state with drugs used in executions.
Prison officials have worked for years to avoid identifying the source of its lethal injection drugs, fearing the publicity would produce protests and threats from death penalty opponents that would deter suppliers from selling to the state.
The Austin-based 3rd Court of Appeals, however, ruled that exceptions in the Texas Public Information Act didn’t apply to the information, sought in 2014 by three lawyers who represented death row inmates, because state lawyers could point only to vague threats of violence against suppliers.
The ruling will be appealed to the Texas Supreme Court, said Jason Clark, spokesman for the Texas Department of Criminal Justice.
“As we have said repeatedly, disclosing the identity of the pharmacy will result in the harassment of the business and will raise serious safety concerns for the business and its employees,” Clark said.
One of the lawyers who sought the information, however, said the ruling likely will have limited impact because the Legislature passed a law in 2015 that allowed state prison officials to keep secret the name of the pharmacy or company that sells execution drugs to Texas.
“It only applies to the request we made in 2014,” lawyer Maurie Levin said. “But I think (the ruling) affirms how pivotal open government is. It strengthens the commitment of open government and says that it shouldn’t be shaped by politics.”
The dispute began when three lawyers for death row inmates, wanting to verify that the state’s execution protocols wouldn’t produce an unconstitutional level of pain and suffering, asked the Texas Department of Public Safety to reveal the drugs used in executions, any testing performed to verify their effectiveness and the source of the drugs.
Prison officials declined to name the source, saying only that execution drugs were purchased from a licensed compounding pharmacy in Texas. An opinion from state Attorney General Ken Paxton agreed that the source of execution drugs must be kept secret because of the threat of harm to the company and its employees.
But writing for the appeals court’s three-judge panel, Justice Bob Pemberton said prison officials could point to no more than isolated, vague threats against suppliers of execution drugs.
That was not enough to show a “substantial threat of physical harm,” a standard established by the Texas Supreme Court in 2011, to withhold the information under state law, Pemberton wrote.
Pemberton warned that allowing governments to withhold information based on a threat of violence could vastly expand the amount of information that could be kept from the public. That’s why it’s important, he said, to require proof of a “substantial” threat of physical harm.
“Virtually all who participate in our government and its functions face not only the potential comment and criticism that are fair game in our free society, but will at some point bear some degree of risk of … physical violence,” he wrote.
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