Open Records court case

ACLU Attorneys Ritchie Eppink and Molly Kafka and confer during trial at the Ada County Courthouse, Monday, Jan. 28, 2019.

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We are now — finally — getting a more complete picture of why the state government is so reluctant to disclose the drugs it uses to administer lethal injections in death penalty cases and where it gets those.

The apparent explanation is even worse than a two-bit, pulp fiction writer could imagine.

First of all, as it turns out, it would appear that the state of Idaho was reaching out to some sort of middleman in India about getting the drugs from who knows where.

And the reason the state was contacting this middleman, whose identity the state kept a secret, is because the companies that make the drug, including a Danish pharmaceutical company, don’t want their drugs used to administer the death penalty.

So our man in India was somehow getting the drugs and selling them to states across the country. To this day, we still don’t even know for sure whether Idaho got our drugs from this guy in India. But we do know that the state of Idaho paid $10,000 in cash to an unknown drug supplier. Was it paid via delivery of a briefcase containing unmarked $100 bills? This is straight out of a bad James Bond movie.

But it gets worse.

The reason that death penalty drugs is an issue at all is because some really bad — unintended — stuff has happened in the administration of these drugs.

In April 2014, the state of Oklahoma badly botched the lethal injection of Clayton Lockett, who struggled, groaned, convulsed, spoke, tried to get up and writhed in pain for 43 minutes before he finally died. Maybe the state got bad drugs from some broker in the Philippines. Who knows? Certainly not the public.

News organizations across the country began asking questions related to the drugs that states were using for the death penalty.

Mysteriously, state officials — including Idaho officials — refused to answer questions about these drugs and either denied public records requests or just flat-out ignored such requests.

In September 2017, University of Idaho law professor Aliza Cover filed a public records request, seeking information about drugs Idaho used in recent executions, as well as drugs the department might use in future executions, and the source for those drugs. The Idaho Department of Correction fought the release of that information, saying it would ruin the state’s relationship with its providers. The case went to trial, which began began Monday, with the ACLU of Idaho representing Cover.

What came out during the trial is that in 2011, Warden Randy Blades, then at the Idaho Maximum Security Institution, emailed Chris Harris — an India-based salesman with no pharmaceutical background, who sold lethal drugs to American prison systems — asking about the availability of a given drug. “Mr. Harris I am contacting you about availability of pentobarbital,” according to the email from Blades. When BuzzFeed News journalist Chris McDaniel asked in 2015 in a public records request for information about that correspondence, the department told him the records did not exist.

Turns out, though, the records did exist, which is either, at best, a case of gross incompetence or, at worst, outright deception and a deliberate violation of the state’s public records law. Either way, not good.

Further, department officials hadn’t bothered to look for many of the records Cover could have received in her request until the summer of 2018, nearly a year after she filed it. The department had since released more than 3,000 pages of documents to her.

Part of the problem appears to be poor organization. According to testimony at last week’s trial, department employees kept finding records they didn’t know existed. An employee organizing his cubicle found a box containing paper copies of execution-related requests, which authorities were unaware of. Another employee found similar records in her work area. Yet another batch of documents they hadn’t been aware of was found in an archive in a department storage room, alongside unused furniture.

In the end, the state of Idaho needs to be transparent about the drugs it’s using for lethal injections and about where they’re getting those drugs. We see no exemption in the public records law for protecting a relationship with a drug provider.

The state’s behavior in this case is atrocious and shows the need for Idaho’s public records law. Unfortunately, it’s requiring that the state get sued to release public information. Thank you to Aliza Cover and the ACLU for forcing the state to do what it should have done in the first place.

Our editorials are based on the majority opinions of our editorial board. Not all opinions are unanimous. Members of the board are Publisher Matt Davison and community members Buzz Beauchamp, Nicole Bradshaw, Rex Hanson, John Jolley and Kathleen Tuck. Editor Scott McIntosh is a nonvoting member.

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