Former state Sen. Joan Bray and several media outlets — including the Associated Press — plan to appeal Tuesday's appeals court ruling that Missouri's Corrections department didn't violate the state's Sunshine Law when it didn't answer all questions about the state's execution protocol, including the sources of the drugs that are used in executions.
Tuesday's 13-page opinion by a three-judge panel of the appeal court's Kansas City division overturned several rulings by Cole County Circuit Judge Jon Beetem in what began as three separate cases against the department.
Those cases had been filed by Bray on Jan. 28, 2014; by the Reporters Committee for Freedom of the Press and the American Civil Liberties Union of Missouri Foundation on May 15, 2014; and by the Guardian News and Media, the AP, the St. Louis Post-Dispatch, the Kansas City Star and the Springfield News-Leader newspapers also on May 15.
All had sought information from the department about the drugs used in Missouri executions, the makers of those drugs and the pharmacists who helped with the execution process — then filed suit in Cole County, asking the court to order the department to release more information under the Sunshine Law.
In an opinion written by Judge Anthony Rex Gabbert, the appeals court noted Beetem first found, on July 15, 2015, "the statutes cited by the (department) do not protect from disclosure any records relating to the source of the execution drugs."
On March 21, 2016, Beetem "entered judgment in the three separate cases, (incorporating) the July 15, 2015, orders finding that records containing the identities of (two pharmacists) are not protected by an exemption" under the Open Records law, the appeals court noted.
However, Beetem agreed with Corrections officials that the doctor who writes prescriptions for the pentobarbital used in executions "provides direct support for the administration of the lethal chemicals and is, therefore, properly included in the 'execution team' that is protected from disclosure by a state law" — even though not present during the executions.
However, the appeals court determined, state law also clearly allows Corrections to withhold the other information sought by Bray, the media and the ACLU.
"The Missouri Legislature delegated authority to the (department) and its director to exercise its own discretion in selecting an execution team, by providing that 'members of the execution team' be defined by the (department) in the execution protocol," Gabbert wrote for the court. "The language selected by the Legislature places no limits on the director as to what individuals or professional titles can be selected for the execution team."
The court noted state law requires the Corrections department to obey any execution order issued by the state Supreme Court.
Gabbert wrote: "It is apparent that the intent of the Legislature was to protect the identities of those individuals essential to the execution process so that the (department) may effectively carry out its statutory duty of performing lawful executions.
"It is a foreseeable consequence of releasing the identifying information of pharmacists supplying execution drugs that such pharmacists could face harassment, or even threats of violence, by those seeking to thwart executions via avenues which bypass the Legislature.
"Releasing the identities of the drug suppliers could serve as a backdoor means to frustrating the state's ability to carry out lawful executions by lethal injection."
Since Beetem's orders last year wrongly said the Corrections department had violated the Sunshine Law, the appeals court rule, he also was wrong in requiring the department to pay attorneys' fees for the various parties that had sued, the appeals court said.