News organizations file lawsuits against Missouri for failing to release execution drug records

Missouri's failure to release records regarding the drugs it uses in executions keeps the public from providing oversight of the death penalty. That's what the Associated Press and four other news organizations are arguing in a suit filed Thursday against the state. Another suit filed the same day by a reporter for St. Louis Public Radio, the Reporters Committee for Freedom of the Press and the American Civil Liberties Union of Missouri also challenges the secrecy.

The journalists say the public has a constitutional right to know what drugs are being used in executions carried out by the state. But the Missouri Department of Corrections maintains that drug providers are part of the "execution team." Under state law, the identity of members of the execution team cannot be disclosed.

The news organizations had previously submitted requests for records that would provide details including the name, source and chemical composition of execution drugs used by the state. They also wanted records that dealt with the "assessment or approval" of these drugs. The state denied these requests "pursuant to the state secret doctrine."

Documents entered into court record in the lawsuit of one prisoner on death row show that the Louisiana Department of Corrections had documents that would have fulfilled a records request made by The Lens in 2013.

The Lens, a non-profit newsroom in New Orleans, had previously requested records pertaining to the purchase and inventory of the state's supply of pentobarbital, as well as communications about the lethal injection drug. The only documents received in response to this request were ones showing that the department had purchased the drug for about $5,000. A later request also asked for records related to the expiration date of the state's pentobarbital. The state responded that it had no such records.

The department maintains that it "never intentionally withheld documents" and that a "due and diligent" search for records that met the criteria of The Lens' request had taken place.

According to The Lens, the department is in violation of state public records laws. It maintains that no statutory reason was ever given for why the documents were kept from The Lens. Its request continues to go unfulfilled more than a year after the initial request was submitted.

Some New York state officials are using private email accounts to conduct official business. One reporter at ProPublica received an email from Howard Glaser, director of state operations and a top adviser to New York Gov. Andrew Cuomo, regarding an open records request. This email was sent from Glaser's personal email account. But later, when the reporter filed a request for emails sent from Glaser's private account, he was informed that the state had no such records. Even after submitting the request again (this time with the email that he had received from Glaser attached as evidence) the ProPublica reporter was told that his request could not be filled.

Email records raise a host of transparency issues: What sorts of emails constitute a public record? How long should emails be retained? What constitutes official business, and when should official, rather than personal, email accounts be used?

ProPublica reported that aides to Cuomo are sending official emails from private accounts in order hide these communications from the public. This is a common tactic used by politicians to avoid being transparent, and one that, at least in New York, may be against state policy.

Cuomo had in the past pledged to "use technology to bring more sunlight to the operation of government." And policy put out by the Office of Information Technology services — signed by the governor — requires state employees to get authorization for using personal email accounts for offical business.

Still, Gov. Cuomo's office has become known for its "obsession with secrecy," according to ProPublica.

Faculty emails and unpublished university research can be deemed “proprietary” and withheld under the Virginia Freedom of Information Act, the Virginia Supreme Court announced last week.

The law was called into question in 2011 when the American Tradition Institute and Virginia Del. Robert Marshall filed a request for emails of Michael Mann, a prominent climate scientist and former University of Virginia professor.

According to the Washington Post:

Lawyers for U-Va. turned over about 1,000 documents to Marshall and ATI, led by former EPA attorney David Schnare, but withheld another 12,000 papers and e-mails, saying that work “of a propriety nature” was exempt under the state’s FOIA law.

A Circuit Court judge in 2012 sided with the university. The state Supreme Court upheld that decision.

Read more from the Washington Post and The Cavalier Daily, the U-Va student newspaper.

The city of Tupelo, Miss. violated open-records laws by not providing the Daily Journal with text messages it requested last year.

The paper had requested the texts from the mayor's personal cell phone over the course of three days last October, when a city official resigned, the Journal wrote.

The Mississippi Ethics Commission all agreed that the mayor's texts were considered open records under state open records laws.

"'Any text message used by a city official in the conduct, transaction or performance of any business, transaction, work, duty or function of (the city), or required to be maintained by (the city) is a public record subject to the Act, regardless of where the record is stored,' the commission wrote in the advisory opinion," according to the Journal.

The mayor was surprised, the Journal reported, but is going to try to make a "digital records policy" for the city.

In many states, recent or pending legislation could impact the transparency of public information. Though several states are taking strides to make public records more open and accessible, a few seem to be adding obstacles to obtaining public information. Here's a breakdown of what's happened in recent months and what could be on the horizon.

Alabama: SB 191, which passed the Senate in February and is pending in the House, would amend the Open Meetings Act. The bill is chiefly concerned with regulating “serial meetings.” These meetings are used to deliberate an issue, but require no quorum or prior public notice. The bill would prohibit serial meetings in an attempt to prevent officials from deciding how to vote in a secret meeting.

Connecticut: Passed last year following the Sandy Hook shooting, PA 13-311 allowed images of homicide victims to be withheld under FOIA if the disclosure of such images could lead to an unwarranted invasion of privacy for the surviving relatives. The statute also established a task force to consider the tension between victims' privacy and the public's right to know. The state legislature may consider recommendations from the task force this session.

Florida: The Senate on Feb. 13 passed SB 1648, which would establish that public records requests do not need to be submitted in writing unless otherwise required by law. It also would order state agencies to train employees on the requirements of open records laws and specify a reasonable cost of enforcement.

Missouri: Sen. Kurt Schaefer, R-Columbia, proposed SB 843, which would impose penalties from $100 to $5,000 for violating state open records laws. It would also not allow state agencies to charge for time spent reviewing whether requested records are exempt from the law, and it would require the government to pay attorney fees when a court determines that a violation of the law has occurred.

Wisconsin: The Senate is considering SB 526, which seeks to restrict information available on the Wisconsin Circuit Court Access website. Records of cases where an individual has been found not guilty or charges have been dropped would no longer appear in the database.

And on the national front…

The U.S. House of Representatives in late February passed a bill that would, among other things, require state agencies to make public information covered by FOIA available in electronic formats. The FOIA Oversight and Implementation Act also seeks to expand the rights of those who wish to appeal a FOIA request determination and enact measures that would improve agencies’ compliance with the law.

U.S. Rep. Mike Quigley, D-Ill., in March introduced the Transparency in Government Act. The bill is designed to increase political transparency, largely by requiring that more information about members of Congress – such as personal spending data, lobbying data and voting records – be put online. The law also requires that completed FOIA requests be published in an online database, and that notice be given of attempts to create exemptions to FOIA.

To celebrate Sunshine Week we'll be sharing exclusive audio, tipsheets and reporting on FOIA battles and open government. Newspapers across the country kicked off the week with stories analyzing FOIA responses and violations. Here's a look at some of the coverage:

Few cited for open government violations | Gannett Wisconsin Media Investigative Team Public officials in Wisconsin can be fined hundreds of dollars for violating open government laws, but only seven citations have been imposed in the past five years for open meetings violations, and none for public records cases,court records show. Prosecutors say this is because public officials are largely complying with the law, residents don’t complain much and cases are typically minor and best left to corrective action rather than penalty. But some state residents say another factor is in play — their complaints can fall on deaf ears.
Shedding light on public information: National push celebrates power of open-records laws | Poughkeepsie (NY) Journal In 2013, 96 percent of open records requests made to local school districts were approved, according to a Poughkeepsie Journal analysis of area school data. One-third of these were for the Wappingers Central school district. Some school district officials have seen the number of records requests decline. They attribute this decrease to the increasing availability of information online.
Your right to know | (Rochester, N.Y.) Democrat and Chronicle From domain name renewals to auto parts, lollipops for recreation program parties and everything in between, municipal check registers and credit card statements are the truest way to see exactly how government officials are spending your tax dollars. There are payouts for salad fixings, pond liners, library books, rain pants, work boots, dental insurance, health insurance, office supplies — and that's just a cursory snapshot of the spending habits of local municipalities as reviewed by the Democrat and Chronicle.
Unlocking public information: How Pocono municipalities fare | Pocono Record How public is public information and how responsive are municipalities and agencies in the Poconos to requests for such material? Depending on who is responding, the answer can range from getting the information right away to replies that can drag on for weeks, a Pocono Record audit found.

A reporter from The Patriot Ledger in Quincy, Mass. caught city employees burning reams of public records, all without approval from the state.

Old purchase orders, payroll records and utility bills, along with a handful of other documents, went up in smoke. The city’s public works commissioner “emphasized that all of the records burned in recent weeks were old and useless,” according to the paper.

The revelation has caused all kinds of problems for city officials, who said they “jumped the gun.”

It gets even worse:

"Not only were the DPW records disposed of without permission, the manner in which they were destroyed may have been illegal as well, according to state Department of Environmental Protection regulations. The DEP’s waste ban says recyclable paper cannot be burned or sent to a landfill. Also, the state does not allow open burning after 4 p.m."

Two days later the state approved the city’s request to destroy the files. Officials said the early burning wasn’t intentional and that all of the documents were eligible for destruction.

In the flood of paperwork that made its way each year to the Hawaii legislature, a shocking statistic slipped under the radar: About once a week the Honolulu Police Department was suspending or firing an officer for misconduct.

Often the offenses were serious – abusing suspects, lying to federal investigators, tipping off drug dealers. And for nearly two decades the information was kept quiet. Legislators paid little attention to the annual reports. Officers who resigned or got suspended for misconduct were shielded by a political loophole in the state’s public records law. Paperwork documenting the wrongdoing was often destroyed.

Civil Beat reporter Nick Grube didn’t know any of this when, after a few months on the job, he decided to pull some files on police misconduct. But when he asked for the names of officers who'd been suspended or discharged, an official told him some of that information was confidential. Under the state's public records law, the department only had to release the names of those who'd been dismissed.

The secrecy surprised Grube and Civil Beat editor Patti Epler. 

“We’re constantly shocked that things routinely available on the mainland aren’t here,” Epler said.

There’s a saying on the island, “the nail that sticks up gets smashed down,” Epler said. "Nobody wants to talk about anything here."

Grube started combing the vague legislative reports, building a database to classify, organize and analyze the data. Next he scoured newspaper clippings and court records to see what additional information existed in the public realm. The third step, Grube said, was to put the public records law itself under a magnifying glass. Police officers, he learned, were treated differently than other public employees.

Law enforcement officials believed releasing details about police misconduct would result in officers being “paraded in the media,” “subject to scorn and retaliation.”

For its five-part series, “In The Name Of The Law,” Civil Beat decided not to focus on the misconduct, but rather the secrecy surrounding it. The anecdotes Grube gather helped to tell a deeper story, he said.

“I had to continue to reevaluate that it wasn’t about the cop who beat up his girlfriend,” Grube said. “It was about the fact that we don’t know much about the other officer who got drunk and crashed his patrol car.”

It wasn’t until after the series ran, however, that Civil Beat decided to consider challenging the secrecy in court. The news outlet narrowed its request to 12 cases involving officers who had been suspended for 20 or more days. Some appeared to have committed crimes, Grube said.

It wouldn’t be the first time the issue played out in court. In the mid-1990s a group of journalism students fought a similar battle for the records. The Hawaii Supreme Court sided with the students, but the state’s police union dodged the ruling when it got lawmakers to carve out a records law loophole for cops.

Civil Beat met with an attorney, who said the journalists would likely win if they were prepared to spend lots of money. That’s where the Civil Beat Law Center for the Public Interest came in, Epler said. Civil Beat publisher Pierre Omidyar established the nonprofit center largely because of the organization’s fight for misconduct records. It became the center’s first case.

This month a Hawaii Circuit Court judge ruled in Civil Beat’s favor, deciding that police do not have a right to secrecy when it comes to bad behavior.

If the ruling sticks – the state police union could still file an appeal – it will set an important precedent in Hawaii, where the police have long sat above the law. That means a lot of “nuts and bolts” coverage for Civil Beat moving forward.

“I think we now need to follow up on the ruling and actually go see which records are available and see what story we can tell,” Grube said. “Nobody has been looking for two decades, if not longer.”

Epler hopes Civil Beat and the law center can use the momentum to challenge the next piece of the public access equation – cost.

Police once quoted Civil Beat $2,000 for three files. The governor’s office wanted more than $1,000 for a year’s worth of travel records, Epler said. No ordinary citizen would be able to pay those fees, she said.

“It’s one thing to get a declaration that they’re a public record,” Epler said of the misconduct files. “But they’ll charge us $10,000 to look at them.”

Right now, she said, the only way to get access is to file an expensive lawsuit. The law center is a way to “turn things around here in Hawaii,” Epler said.

“The biggest barrier to bringing about better behavior is that they just ignore you, they just say no, and the only option is to sue and no one can afford to sue,” she said.

“We figure four or five or six of these public records cases where they have to pay the fees, maybe they will quit screwing around.”

Follow the Civil Beat team on Twitter: Nick Grube (@nickgrube), Patti Epler (@PattiatCB), Civil Beat (@CivilBeat). Connect with IRE Web Editor Sarah Hutchins on Twitter @sarhutch.

The New York Police Department’s Freedom of Information Law Unit is refusing to release its FOIL guide. Yes, you read that right.

Public records request service MuckRock asked for the document in late December. Last week a lieutenant in the department’s records unit denied the request, calling the guide “privileged as an attorney-client communication.”

You can be sure MuckRock is appealing the decision.