Idaho Supreme Court considers lethal injection records case

BOISE, Idaho (AP) — The Idaho Board of Correction didn't follow its own public records rules when prison officials refused to turn over some lethal injection records, American Civil Liberties Union of Idaho attorney Ritchie Eppink told the Idaho Supreme Court on Monday.

But deputy attorney general Jessica Kuehn, the lawyer representing the board and the Idaho Department of Correction in the case, said that state law grants the Board of Correction far more discretion than it allows other state agencies. She said the board acted correctly when it allowed prison officials to decide which lethal injection documents to release.

The arguments came in a lawsuit brought by University of Idaho professor Aliza Cover against the state after prison officials largely denied her public record request for execution-related records in 2017.

Cover, who studies how the public interacts with the death penalty, was seeking records about the lethal injection drugs used for the state's two most recent executions.

Last year, a state judge sided with Cover and the ACLU and said prison officials had to turn over much of the information, including documents that name the supplier of the drugs used in Idaho's most recent execution eight years ago.

The state agencies appealed, contending that making the information public would prevent them from getting execution drugs in the future because suppliers would not want their identities to be revealed.

"This is a public records case through and through," Eppink told the justices in a hearing held by video conference because of the coronavirus pandemic. "There's a procedure problem, an exemption problem and a burden problem."

The board violated the public record law by repeatedly missing deadlines and failing to turn over hundreds of responsive documents, Eppink said.

He also said board members did not follow their own rules in weighing the public interest against prison interests in whether or not to release some documents. Eppink added that the rule granting the board the discretion to make those decisions is invalid because the board never officially adopted it.

"I'm going to jump to the end of this because I think it might be the juiciest: The burden problem," Eppink said. "The agency says it's concern is that it won't be able to execute someone if these records are disclosed."

Neither the Department of Correction nor the Board of Correction has ever presented any evidence to support that claim, Eppink claimed.

Prison officials testified that no executions have been delayed because of a lack of access to lethal injection drug and that there has never been a credible threat of harm to anyone participating in an execution. No lethal injection providers have ever told the state that they would not provide lethal injection chemicals if the names of those companies were released, Eppink said.

"You would hope that no matter who you are, you would have some difficulty getting highly regulated substances. We know it's not going to be just a trip to Walgreens," Eppink said. "The department, it was their burden, the agency's burden, to connect those two dots. They completely failed to do that."

Kuehn, the attorney for the state, said the Legislature granted the Board of Correction special authority to make exemptions to the public records law because lawmakers recognized the issue's importance.

"The Legislature has treated the Board of Correction uniquely, generally granting the board wider authority than other state agencies," Kuehn said.

That includes allowing the board to use a streamlined rule-making process and to decide what information is exempt when it comes to executions, she told the high court.

The statute "makes it clear that the board — not the Legislature or the courts — is responsible for identifying certain exempt records," Kuehn said.

The Department of Correction's access to lethal injection drugs depends on the confidentiality of its suppliers, said Jessica Kuehn. Because of that, she said documents that identifies the source of drugs used in previous executions must be protected.

"In Idaho, public records are presumed to be open but the right of the public to access these records is statutorily defined and constrained," Kuehn said.

Idaho Supreme Court Chief Justice Roger Burdick said the court would issue a ruling some time in the future, but did not say when.