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Nebraska news outlets ask to join lawsuit over release of information on death penalty drugs

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Nebraska Death Row

Nebraska's lethal injection chamber at the State Penitentiary in Lincoln.

A coalition of newspapers and broadcasters in Nebraska has joined a legal battle over the state prison director's refusal to release public records related to lethal injection drugs.

The Lincoln Journal Star, the Omaha World-Herald and Media of Nebraska asked a Lancaster County District Court judge to direct the Department of Correctional Services to release the information.

The legal complaint comes after the Journal Star, World-Herald and the ACLU of Nebraska each filed separate public records requests with the Corrections Department, which denied them.

Asked once again during a Friday news conference why the state won’t identify the source of the drugs, Gov. Pete Ricketts said “we don’t have to disclose those things” under state law.

Ricketts suggested that Nebraska's prison system already is “probably the most scrutinized” corrections department in the country.

The ACLU sued the state Dec. 1, asking a judge to find that Corrections had violated the state's open records laws and to force its director, Scott Frakes, to release the records.

On Friday, Media of Nebraska, which is backed by the Nebraska Press Association and Nebraska Broadcasters Association, filed a complaint to intervene in the ACLU case.

While the ACLU actively opposes the death penalty, Media of Nebraska, a nonprofit that advocates on behalf of the state's print and broadcast journalism outlets, takes no position on the death penalty itself.

Its membership includes news organizations with editorial positions on both sides of the execution debate.

"However, all of the state's news organizations support public access to government records as required by the Nebraska Public Records Act," the Nebraska Press Association said in a press release Friday.

The Journal Star's editorial board has taken a stance opposing the death penalty, but that decision was made independently of newsroom staff who report on the issue. The World-Herald's editorial board has expressed support for the death penalty.

Allen Beermann, a former Nebraska Secretary of State and now executive director of Media of Nebraska, said the people of the state spoke "loud and clear at the ballot box" when they voted to reinstate the death penalty after lawmakers repealed it.

"Our only interest is to make sure any execution is done through an open, above-board and legal process," Beermann said.

In a five-page complaint, Lincoln attorney Shawn Renner, who represents the journalists, said the prison's denial letters to the Journal Star and World-Herald failed to comply with the Nebraska Public Records Act because it didn't correlate specific records withheld to the reasons for the denials.

In a letter to the Journal Star, prisons spokeswoman Dawn-Renee Smith said they had records of communication between a Corrections team member and a supplier of the drugs; DEA forms; photos of packaging; invoices and purchase orders. But, she wrote, the records "will not be provided to you."

Smith said Frakes was denying access to the records based on a state statute related to the identity of the execution team being confidential and exempt from disclosure; and another statute that says records may be withheld from the public if they represent the work product of an attorney.

In Friday's filing, Renner said if Frakes considers a drug supplier or compounding pharmacy to be a member of the execution team, the practice would be inconsistent with Nebraska law and the execution protocol itself.

And, he said, none of the records are protected by attorney-client privilege.

Renner asked the court to order Frakes either to immediately release the records or tell the court why they aren't.

Last month, Frakes served notice on Jose Sandoval of the lethal injection drugs that would be administered to cause his death if an execution takes place. Sixty days following the notification, Attorney General Doug Peterson can ask the Nebraska Supreme Court to issue Sandoval's execution warrant.

The drugs purchased are diazepam, fentanyl citrate, cisatracurium besylate and potassium chloride. But the Corrections Department has not made public its supplier of those drugs or whether they came from a known drug manufacturer or compounding pharmacy. The department did say they were purchased in the United States.

In recent years, the department has revealed its lethal injection drug supplier.

"The ultimate penalty deserves the ultimate scrutiny," said Journal Star Editor Dave Bundy.

Reach the writer at 402-473-7237 or

On Twitter @LJSpilger.


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Public safety reporter

Lori Pilger is a Norfolk native and University of Nebraska-Lincoln graduate who has been a public safety reporter for the Journal Star since 2005.

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