Can Delaware's prison system keep the identity of its execution drug supplier secret under FOIA?

Official title

11-IB14 RE: Freedom of Information Act Appeal Concerning Department of Correction

Plain-English summary

Associated Press reporter Randall Chase asked the Delaware Department of Correction (DOC) for all records of its purchases and transfers of the execution drugs pentobarbital and sodium thiopental since January 2010. DOC refused, offering four separate justifications.

The AG rejected all four. DOC's claim that the records related to pending litigation over execution methods did not hold up once the underlying execution had already taken place, and in any event, records about who supplies the drugs are not really "records pertaining to" that litigation. DOC's argument that FOIA disclosure would conflict with its statutory duty to carry out executions failed because the death penalty statute contains no explicit FOIA exemption, and the AG would not read one in without a clear directive from the legislature. On vendor confidentiality, DOC said the supplier was hard to find, did not want to be involved, and worried about its reputation and business, concerns the AG called a "want" rather than a "need," not enough to overcome FOIA's presumption favoring disclosure, especially since the reporter said he had been given the same kind of supplier information in a 2006 FOIA request. Finally, a federal court's protective order in a death-row inmate's lawsuit had sealed the identities of the execution team and the pronouncing physician, but the order never mentioned or covered the drug vendor, so it provided no exemption either. The AG ordered DOC to produce the requested records.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a Delaware corrections department withhold records about who supplies its execution drugs?

Not on the grounds tried here, according to this opinion. The AG rejected pending-litigation, statutory-conflict, vendor-confidentiality, and court-protective-order arguments, finding none of them actually exempted the purchase and transfer records from FOIA.

Does a vendor's stated wish to stay anonymous when doing business with the state make its identity exempt from FOIA?

Not by itself, according to this opinion. The AG found the vendor's stated concerns, difficulty being located, reluctance to be involved, and worry about reputation, described a "want" for anonymity rather than a "need" for confidentiality, and did not overcome FOIA's presumption favoring disclosure.

Did a court order sealing the identities of the execution team also protect the drug supplier's identity?

No, this opinion found. The protective order in a death-row inmate's federal lawsuit covered only the execution team members and the physician who pronounced death; the State never sought to include, and the court never included, the drug vendor within that order.

Background and statutory framework

FOIA exempts records "pertaining to pending or potential litigation," 29 Del. C. § 10002(g)(9), and records "specifically exempted from disclosure by statute or common law," 29 Del. C. § 10002(g)(6), as well as "trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature," 29 Del. C. § 10002(g)(2). DOC argued that all three applied, along with a fourth argument based on a federal court's protective order.

The AG found the litigation exception did not fit records concerning who supplies execution drugs, particularly once the relevant execution, of Robert Jackson, on July 29, 2011, had already occurred, since such records concern carrying out a sentence rather than the litigation over the sentence itself. On the statutory-conflict argument, the AG found DOC's duty to carry out executions under 11 Del. C. § 4209(f) contains no explicit exemption from FOIA, and declined to infer one. On vendor confidentiality, the AG found DOC's showing, that the vendor was hard to locate, did not want to be involved in the execution process, and feared reputational or business harm, did not carry DOC's burden to overcome FOIA's presumption favoring disclosure, particularly given the reporter's account that similar supplier information had been disclosed in response to a 2006 FOIA request.

Finally, the AG examined a federal court's protective order from Jackson v. Danberg, C.A. No. 060-300-SLR (D. Del.) (Order, June 8, 2007), issued in a death-row inmate's lawsuit challenging his sentence. That order protected the identities of the lethal injection team and the physician who pronounced death, information the inmate would have learned through discovery, but no discovery had been sought as to the drug vendor, the State never included the vendor in its proposed order, and the order itself did not extend that far. Because none of DOC's four justifications withstood scrutiny, the AG ordered DOC to produce the requested purchase and transfer records.

Citations

• 29 Del. C. § 10002(g)(9) (exemption for records pertaining to pending or potential litigation)
• 11 Del. C. § 4209(f) (DOC's statutory duty to carry out executions; contains no FOIA exemption)
• 29 Del. C. § 10002(g)(6) (exemption for records specifically exempted by statute or common law)
• 29 Del. C. § 10002(g)(2) (exemption for confidential trade secrets and commercial or financial information)
• Jackson v. Danberg, C.A. No. 060-300-SLR (D. Del.) (Order, June 8, 2007) (federal court protective order; covered the execution team and pronouncing physician, not the drug vendor)

Source

• Landing page: https://attorneygeneral.delaware.gov/2011/08/30/11-ib14-re-freedom-of-information-act-appeal-concerning-department-of-correction/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 11-IB14 (Del.A.G.), 2011 WL 4062225

Office of the Attorney General

State of Delaware

Opinion No. 11 – IB14

August 30, 2011

RE: Freedom of Information Act Appeal Concerning Department of Correction

*1 Mr. Randall Chase

The Associated Press

P.O. Box 934

Dover, DE 19903

Dear Mr. Chase:

On July 22, 2011, you requested a ruling from the Chief Deputy Attorney General as to whether the Delaware Department of Correction (“DOC”) violated the Freedom of Information Act, 29 Del. C. ch. 100 (“ FOIA ”), in denying your My 7, 2011 request for “all records, including but not limited to purchase orders, invoices, billing records, shipping records, inventory records and emails, related to any and all purchases, receipts and/or transfers of pentobarbital and sodium thiopental by and/or on behalf of the Delaware DOC since Jan, 1, 2010.” I have reviewed your request and arguments in support thereof as well as the denial by DOC and its state reasons. I conclude the DOC has erred under FOIA for the following reasons.

First, the DOC pointed out that it is “currently facing multiple legal challenges to the manner in which it is to carry out executions.” 29 Del C. § 10002 (g)(9) (exception for records relating to pending or potential litigation). I can fairly presume these legal challenges surrounded the execution of Robert Jackson, which took place on July 29, 2011. In light of Mr. Jackson’s execution, the “pending litigation” exception would seem to be mooted, at least for the moment. It is also a safe assumption, however, that there will be further litigation in the future, preceding the next execution. The difficulty with the position of DOC then, is not only that it is mooted by Jackson’s execution, but also that all future executions are in some state of litigation, virtually from the date of a judge’s determination of the sentence of death. The information concerning the supplier of lethal chemicals in an execution do not appear to me to be “records pertaining to pending or potential litigation,” but rather are more akin to records pertaining to a sentence to be carried out pursuant to litigation that will have, by that time, be over. For both of these reasons, this position advanced by DOC is not persuasive.

Second, the DOC maintains that it has an obligation pursuant to 11 Del. C. § 4209 (f) to carry out executions and that this request “in this context” is “directly in conflict” with its statutory mandate. It therefore urges that these records are “specifically exempted from disclosure by statute or common law.” 29 Del. C. § 10002 (g)(6). The difficulty with this argument is that nothing in 11 Del. C. § 4209 (the death penalty provisions) contains any explicit exemption from FOIA . DOC is thus asking us to “read in” an exemption from FOIA that the death penalty statute does not contain. This is inconsistent with the policy of FOIA , which is that information be made available unless an exception applies. We are not inclined to find an exception from FOIA in the death penalty statute absent a specific directive from the General Assembly.

*2 Third, the DOC asserted the company from which it obtained the chemicals has “asserted a commercial need for confidentiality.” There is indeed an exemption under FOIA for “trade secrets and commercial or financial information obtained from a person which is of a privileged or confidential nature.” 29 Del. C. § 10002 (g)(2). Were this need for confidentiality further developed and articulated, it may well be dispositive. When DOC was invited to develop its position further with respect to this issue, however, it said only that the Commissioner of Corrections was of the view that the vendor was located only with some difficulty, that it did not want to be involved in the execution process at all, and that it was concerned generally that it might suffer a loss of reputation or a loss of business. This does not strike us as a “need” so much as a “want.” On the other hand, the statute permits the exemption to apply whenever the information is “of a privileged or confidential nature,” terms that are not further defined or explained. While the Commissioner’s difficulties are certainly not insubstantial, the identity of a vendor who does business with the state but seeks to do so namelessly strikes us as problematic under FOIA . We do not believe the agency has overcome FOIA’s presumption favoring disclosure and its burden of proof on the agency seeking to avoid disclosure. While the record is not further developed, it is at least noteworthy that Mr. Chase has argued that he himself was given the identity of the lethal chemical supplier pursuant to a 2006 FOIA request. We do not know the details of that request or its response, but it does seem that the same general arguments about “privileged or confidential” business information would have held equal sway five years ago.

Fourth and finally, DOC has posited that it is exempt from disclosing the vendor of the lethal chemicals pursuant to a court order protecting the identities of the individuals who are members of the lethal injection team. That order was issued in a suit by a prisoner challenging his death sentence. Order, June 8, 2007, Jackson v. Danberg, et al. , C.A. No. 060-300-SLR (D.Del.). The order was filed in response to Jackson’s discovery request for the State to identify the lethal injection team. The State sought and received a protective order prohibiting the plaintiff from revealing “the identities of the members of the lethal injection team or of the physician who pronounced the death of the condemned,” which he would learn as a result of discovery. No discovery was sought as to the vendor of the lethal drugs, the State did not include the vendor in its proposed order, and the court’s order does not extend to the vendor. Had the Order extended that far, the identity of the vendor would clearly be exempt under FOIA . It did not. Therefore the court order cannot serve as an exemption.

For the reasons stated here, I find that the DOC must provide the documents you requested.

Very truly yours,

*3 Charles E. Butler

Chief Deputy Attorney General

Del. Op. Atty. Gen. 11-IB14 (Del.A.G.), 2011 WL 4062225