AUSTIN - A state appellate court hinted Wednesday that it had little interest in expanding government secrecy in a case involving the public's right to know who supplies the lethal drugs Texas uses to execute convicted criminals.
A decision in favor of openness by the state's 3rd Court of Appeals could have a limited effect because the Texas Legislature passed a law last year requiring state prison officials to keep the identities of the drug makers secret.
The appellate judges, however, appeared more concerned about the broader question of when potential safety concerns should trump the public's right to know how the state is spending taxpayer money.
"Where do we draw the line … without blowing a hole in the (Public Information Act) big enough to drive a truck through anytime the government says, 'Well, gee, this can cause harm?' " said Chief Justice Jeff Rose during a hearing in a case that dates to 2014, when the identities of lethal-drug suppliers still were public.
The case, now on appeal after an Austin state district judge ordered state officials to make information about the state's drug supplier public, was filed by attorneys representing two condemned convicts challenging their impending executions.
At a time when executions in other states had been botched amid questions about the quality of execution drugs, they wanted the names and other information to validate the quality of pentobarbital that Texas was using to execute condemned killers.
Texas at the time confirmed it was using a compounding pharmacy in The Woodlands as its source, and the convicts' attorneys had argued that pharmacies that custom-make drugs are not as tightly regulated for purity as other drug makers.
Both convicts were executed while the case was pending.
Deputy Solicitor General Matthew Frederick told the court that state officials need to keep the names and details about the suppliers secret to prevent them from being threatened or harmed by death-penalty opponents.
"The Department of Public Safety and the attorney general's office determined that disclosing the identity of the pharmacy … creates a substantial threat of physical harm," Frederick said.
Austin attorney Phillip Durst, representing the convicts' attorneys - Maurie Levin, Hillary Sheard and Naomi Terr - argued that the threats were vague and should not preempt public disclosure of the information.
Texas Department of Criminal Justice officials, he said, could not keep secret a supplier's identity without showing "a substantial probability of physical harm," which he said the state had not shown.
Frederick countered that a 2011 decision by the Texas Supreme Court created an exemption to the release of some information under the Public Information Act when that information would compromise "physical safety."
That decision allowed DPS to keep secret some details about the governor's security detail, including data showing how many plainclothes officers travel with the governor and details of their travel.
"Pharmacies don't have security details. They are uniquely vulnerable," he told the justices "Their only protection is anonymity. Once you take that away … there's nothing they can do to protect themselves."
Rose and other justices questioned whether that exemption could render the Texas Public Information Act toothless, as state agencies would claim safety concerns as a way to avoid disclosing information that should be public.
"It seems a potentially boundless exemption," Justice Bob Pemberton said.
Justice Cindy Bourland agreed and questioned whether such a broad exemption could "swallow the PIA."
"It is not as if there's a known assailant out there who says any compounding pharmacy will be attacked. It's not that specific," she said.
Frederick insisted that execution-drug suppliers should be given the same protection of secrecy provided to executioners, prison doctors and other officials involved in the death penalty process, to protect them from public notoriety and judgment.
"The public-safety exemption does not require us to wait until somebody gets hurt," he said. "There's an identifiable group of people who think lethal injection is wrong - morally, politically and socially - and they are determined to oppose it."
The justices gave no hint as to when they may decide the case that is being watched nationally for its impact as part of a recent move by states to thwart death-penalty opponents and accountability by imposing secrecy on their execution processes.
In recent years, death penalty opponents successfully have pressured drug manufacturers to stop producing or selling lethal drugs to Texas and other states to be used in executions.
That has resulted in increasing shortages of approved drugs, leading some states to delay or stop executions.
Texas has been able to continue its executions as the nation's busiest death chamber, but officials recently indicated they are facing a shortage after supplies are exhausted.
One thing is sure: A decision by the Austin-based appeals court almost certainly will be appealed to the Texas Supreme Court, putting a final decision in the case off for months, if not years.
Source: Houston Chronicle, Mike Ward, May 12, 2016