The director of the Department of Correctional Services has denied public-information requests from the Journal Star, other media and a civil liberties group for names of manufacturers, drug compounders or suppliers of lethal injection drugs it has purchased.
The Journal Star sent a Freedom of Information Act request Nov. 9 asking the department for suppliers of the drugs diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride, to be used in the potential execution of death row inmate Jose Sandoval.
A request by the newspaper with more questions sent Nov. 15 was also denied, except that the department supplied a public copy of the execution protocol.
The drugs have never been used in this combination for an execution.
State regulations require the prisons chief to notify condemned inmates 60 days prior to the attorney general requesting an execution warrant. Attorney General Doug Peterson said he is prepared to request the Supreme Court issue Sandoval's execution warrant after at least 60 days have elapsed after the notice.
In denying the media request, Corrections Director Scott Frakes cited a state law that makes the execution team confidential, or any information that could lead to the identity of members.
The records requested include communication between a Corrections staff member and a supplier, Drug Enforcement Administration forms, and photos of packaging, invoices and purchase orders, according to Communications Director Dawn-Renee Smith.
"These documents constitute attorney work product, are subject to the attorney-client privilege, are not public records and/or are confidential and exempt from disclosure under Neb. Rev. Stat. 83-967 (2)," Smith said in her response to the Journal Star request.
The ACLU also asked for documents relating to attempts to obtain lethal injection drugs. While some information was provided, none contained names of manufacturers of the drugs the department plans to use.
ACLU of Nebraska Director Danielle Conrad said the organization believes the Department of Corrections has acted in bad faith with both the timing and substance of its response to the ACLU's open-records request to identify the source and supplier of execution drugs.
"State officials knew they were rushing to an execution and that the clock was ticking," she said. "Nebraskans of goodwill do have differing viewpoints on the death penalty. We fully understand and respect that."
However, this issue is about open government and transparency, she said, which Nebraskans across the political spectrum value to check big-government abuses.
Omaha Sen. Burke Harr, an attorney and former prosecutor, said the purchase of drugs is seldom, if ever, protected by attorney-client privilege nor should it be exempt from disclosure.
"In this case, I don't know why transparency is a bad thing," he said.
Sen. John Kuehn of Heartwell introduced a bill (LB268) last session that would allow the state to keep secret the names of lethal injection drug suppliers and manufacturers. The bill got three hours of debate but no vote was taken. It could come back for debate this session if Kuehn could show he has 33 votes to break a filibuster of the bill.