Photos taken in October of the packaging of Nebraska's lethal injection drugs constitute attorney work product and should not be released to the public, an attorney for the state's prison system has argued.
In briefs filed in three lawsuits, Assistant Nebraska Attorney General Ryan Post said the Nebraska Department of Correctional Services denied public records requests seeking purchase orders and chemical analysis reports of the drugs because they directly identified an execution team member.
By law, that disclosure isn't allowed.
But Post went further, arguing the judge also shouldn't direct Corrections to release any information that could lead to the drug supplier being identified — including photos of the vials taken Oct. 23 — because it is just "one step removed" from identifying someone on the execution team.
He said the photos qualify as attorney work product because they were taken at the request of legal counsel in anticipation of litigation.
Post said the execution of condemned inmates remains a divisive and emotionally charged topic nationwide. And disclosing any information "reasonably calculated" to lead to the identity of team members creates a risk that they will be deterred from performing their duties.
He said in Arkansas, despite information being redacted before photos of drug vials were released, it still was possible to identify the manufacturer.
And in Oklahoma, a Missouri prisoner sued a drug supplier, which chose to stop selling the drugs to the state rather than be sued, Post said.
"With this history in mind, it is reasonably likely that an execution team member's identity will be disclosed via a 'connecting of the dots' from released information," he wrote.
Post said Nebraska prison officials withheld a communication between a prison employee and a supplier, DEA forms and invoices because it could lead to an execution team member's identity.
"It is not an imaginative leap to think death penalty opponents will take that step," he said.
One of the three lawsuits, which ask a judge to find that the state had violated the state's open records laws and to force its director, Scott Frakes, to release the records, was filed by the ACLU of Nebraska, an anti-death penalty group.
The others, filed by the Lincoln Journal Star and Omaha World-Herald, came after the prison denied public records requests made by reporters for news purposes.
Lancaster County District Judge Jodi Nelson gave Post a deadline to lay out his argument for why she shouldn't direct the release of the records.
She is expected to move quickly. At a recent hearing, attorneys seeking the information pointed out that two inmates — Jose Sandoval and Carey Dean Moore — have been notified of the lethal injection drugs that would be administered to cause their deaths, a step required before the Attorney General can ask the Nebraska Supreme Court to issue execution warrants.