The ACLU of Nebraska filed a lawsuit Friday alleging the Department of Corrections violated the state's open-records law and asserting Corrections Director Scott Frakes must disclose records relating to lethal injection drugs.
The organization said the department didn't comply with the ACLU's open-records requests related to Nebraska’s lethal injection protocols and information on the sources of execution drugs. The Lincoln Journal Star, the Associated Press and other media outlets have also reported their requests for records have been denied.
The complaint is against Frakes and the Department of Corrections, and was filed in Lancaster County District Court.
Department of Corrections spokeswoman Dawn-Renee Smith said the department does not comment on pending litigation.
Gov. Pete Ricketts' spokesman, Taylor Gage, said that as the agency has indicated, it can deny certain records requests based on state law, and did so in this case.
“Here in Nebraska, the Department of Corrections has been stepping up transparency, working with multiple legislative oversight committees, as well as a new ombudsman created by the Legislature, and pushing out a high level of public information," Gage said.
"Among all state agencies and corrections departments nationally, it is arguably subject to the highest levels of scrutiny and transparency by the media, the Legislature, and the public."
The Journal Star, AP and other media requested information on the suppliers of the drugs and other pertinent facts immediately after the state sent notification to death row inmate Jose Sandoval of the four drugs that would be used in a pending execution.
The state has not yet filed a request with the Nebraska Supreme Court for an execution date for Sandoval, but could ask for a date 60 days after the notification was given to him.
The drugs purchased by the state for an execution are diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride. The department has not made public either the supplier of the drugs or whether they came from a known drug manufacturer or a compounding pharmacy. It did say they were purchased in the United States.
The state open-records law is clear that the government has to make available all documents that relate to public business, said ACLU of Nebraska legal director Amy Miller. That is true especially with lethal injection drugs, in which the state has a history of backroom deals, money that was wasted and efforts to obtain drugs illicitly, she said.
"This is an issue that the public, the ACLU, lawmakers all have a right to know what's happening with our state Department of Corrections," Miller said.
Public-records requests by the ACLU and the media over the past couple of years are the only reason a public debate on the state's efforts to procure lethal injection drugs took place, she said.
Those requests enabled knowledge of the state's troubling behavior of importing drugs without licenses, spending taxpayer money on drugs that were never received, and now purchasing a combination of drugs from unknown sources that have never been tested in an execution, she said.
This is the first time in those recent requests the state has refused to produce the records.
"There is every intention in state law to have transparency and sunshine in government practice," Miller said.
Most recently, the department responded that documents, forms, invoices, reports and purchase orders were attorney-client privilege. But even if the department copied its attorney on emails and documents, it would not mean they would be subject to attorney-client privilege, Miller said.
"It would still be documents the public would have a right to see," she said.
The fundamental concept of open government is at issue in this case, the complaint said. The taking of a person's life is the most extreme use of state power. And the death penalty should not be implemented in the shadows.
ACLU of Nebraska Executive Director Danielle Conrad said open, transparent government is a bedrock of Nebraska tradition deeply valued by citizens across the political spectrum because it provides a check on the abuses of big government.
In recent years, the department has complied with open-records laws and revealed the lethal injection drug supplier. The law has not changed, Conrad said.
“This lawsuit lays out Nebraska’s shady history of backroom deals and attempts to circumvent federal law to obtain lethal injection drugs," she said in a news release. "In recent years, Nebraska taxpayers have spent over $54,000 to obtain drugs that have never been used and taxpayers' dollars still have not been refunded."
The state’s remedy is simple: Comply with Nebraska law and make public records public, Conrad said.
The ACLU understands that Nebraskans hold differing opinions about the death penalty, she said, "but we shouldn’t allow the Department of Corrections to disregard the law and the Nebraska tradition of open government for pure political reasons.
"Decisions made in darkness don’t belong in Nebraska government.”