Open-records dispute centers on lethal drugs

Associated Press

COLUMBUS

Ohio’s prison system must produce records about lethal drugs it wants shielded from public view for justices on the state Supreme Court to review privately as part of an open records dispute, the court ruled.

At issue is a lawyer’s request for multiple records about Ohio’s lethal injection drugs, including who made them and when they expire, and whether a state secrecy law prohibits that information from release.

The high court ordered the Department of Rehabilitation and Correction on Dec. 29 to provide the records for justices to review within 10 days.

Among other disputed documents are correspondence related to Ohio’s efforts to obtain those drugs, and correspondence from the prison system to or from any manufacturers.

The open records complaint was brought on behalf of Elizabeth Ochs, a Denver lawyer whose firm, Hogan Lovells, previously represented a Virginia death row inmate challenging the constitutionality of that state’s lethal drugs. Killer Ricky Gray was executed in January 2017 for killing a family in 2006.

Drug companies providing lethal drugs to Ohio must apply to the state to receive confidentiality under the secrecy law, but Ohio hasn’t provided any evidence it received such a request from any drug maker, Cincinnati attorney John Greiner, representing Ochs, said in a court filing last year.

In a twist, two drug makers have joined the lawsuit to urge the records’ release. Both produce the kind of drugs used by Ohio to put inmates to death.

Illinois-based Fresenius Kabi USA makes midazolam, rocuronium bromide and potassium chloride. New Jersey-based Sandoz Inc. produces rocuronium bromide. Both companies oppose the use of their drugs in executions. It’s unknown if the companies’ products are among the supplies of drugs Ohio has obtained.

Because the companies have not asked for confidentiality, the records should be produced, an attorney for both firms argued in a July 10 filing with the state Supreme Court.

“Any refusal by the state to disclose the manufacturers of its lethal injection drugs directly undermines the manufacturers’ interests, impeding their ability to preserve the integrity of their contracts,” the companies said.

The state argues it provided the lethal injection records sought by Ochs more than a year ago and explained the parts of Ohio law that allowed some records to be shielded.

Records obtained by The Associated Press last year show Ohio has been able to replenish part of its lethal drug supply in recent months, and could carry out nearly 20 additional executions under certain conditions.

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