Arkansas judge rules state's lethal injection records are exempt from Freedom of Information Act

Death-row inmates cannot use Arkansas' open records law to obtain information about the origin, history of quality of the drugs the state will use to execute them, a state judge ruled Monday.

Pulaski County Circuit Judge Collins Kilgore ruled after a hearing Monday that communication between the Department of Correction and a drug company was not subject to disclosure under the Arkansas Freedom of Information Act - even for the inmates who may one day receive a fatal dose.

6 condemned killers sought the information despite a section of the FOI law that limits the release of certain information about execution procedures - including how the drugs are obtained. The Legislature last month changed execution procedures after the state Supreme Court ruled in 2012 that previous lawmakers had given the Correction Department too much control over the process.

Kilgore said that, following a review of emails and other communication between the Department of Correction and a drug company, he had to reject the inmates' request. A Department of Correction official testified Monday the documents reflected an attempt to open an account with a drug manufacturer to procure new lethal injection drugs.

An attorney for the 6 inmates, Jeff Rosenzweig of Little Rock, had said they should have a right to the information because of problems with drugs obtained in the past. He noted in a court filing that his clients discovered in 2011 that the state was seeking to execute them using "unregulated, non-FDA-approved chemicals that it obtained from a business operating out of the back of an overseas driving school."

After Kilgore's decision Monday, Rozenzweig said the inmates would appeal.

In 2011, Arkansas turned its supply of sodium thiopental over to federal officials amid questions about how it was obtained. The sedative is used in some lethal injections, but has been hard to come by since its sole U.S. manufacturer stopped making it, so Arkansas and at least a half-dozen other death-penalty states turned to overseas suppliers.

The state Legislature last month enacted a new lethal injection law that spells out in greater detail the procedures that must be followed - Arkansas must use a lethal dose of a barbiturate, but leaves it up to the Department of Correction to determine which drug.

Arkansas' most recent execution occurred in 2005; the state currently does not have any scheduled for the 37 men on death row. Attorney General Dustin McDaniel this month asked the Arkansas Supreme Court to lift stays of executions for 6 death-row inmates who have exhausted their appeals.

Source: Associated Press, March 26, 2013

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