Ruling Could Be a Boon for Execution Drug Transparency in Missouri

by | July 20, 2015

By Jeremy Kohler

Public agencies in Missouri that don't respond in three days to requests for public records under the state Sunshine Law give up their right to block the release of the records requested, a judge says in a lawsuit over the release of the pharmacy name in Missouri's executions.

An acknowledgement of the receipt of the request is not enough, the judge said. The law says the public body either has to provide the records, explain the cause of the delay along with a timeline for disclosure, or deny the records citing an exemption in the state law upon request.

If the agency does not immediately point to the statutes that permit closure of records, it waives its right to invoke them later, the judge ruled.

A legal consultant for the Missouri Press Association, an association of news organizations covering the state, said the ruling was exciting for advocates of transparency in state government.

Many public agencies claim they meet the state law merely by sending a letter within three days to acknowledge receipt of the request, said the lawyer, Jean Maneke, of Kansas City.

"This is a slightly different twist than how some courts have read the Sunshine Law," she said. "I think this is something that public governmental bodies need to take note of."

"Your response better hit on all cylinders in the first response because you're not going to get a second bite at the apple," she said. "I think this is an opinion that will hold up."

The ruling by Cole County Circuit Judge Jon E. Beetem found that the Missouri Department of Corrections violated the Sunshine Law by failing to respond in time to requests by media organizations for records about the drugs used for executions.

Beetam's order noted that the court can impose civil penalties on a governmental body for knowingly violating its obligation to provide access to public records, and can order the public body to pay all legal costs for the party that established a knowing violation. A hearing was scheduled for Aug. 28 on the attorney fees and sanctions.

A spokeswoman for Missouri Attorney General Chris Koster said he declined to comment.

The ruling was issued on in a suit filed last year by the St. Louis Post-Dispatch, The Associated Press, Guardian News and Media, and other media companies. Last week, the same judge ruled in a suit by former state lawmaker Joan Bray that the department violated the Sunshine Law. The judge also issued a similar ruling in a suit filed by the ACLU of Missouri, the Reporters Committee for Freedom of the Press and Chris McDaniel, a reporter formerly with St. Louis Public Radio and now the death penalty reporter at BuzzFeed News.

Beetem ruled that even though state law required the identities of individual execution team members to be kept confidential, it did not allow the department to "define the execution team as it wishes, without limitation."

The decision notes that laboratories and pharmacies are not "persons who administer lethal gas or chemicals" or people who provide direct support to administer them.

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