Lawsuit claims state stonewalled request for documents on drugs used in capital punishment

A view of the death chamber from the witness room at the Southern Ohio Correctional Facility shows an electric chair and gurney Aug. 29, 2001 in Lucasville, Ohio. Photo by Mike Simons/Getty Images.

An attorney claimed the state has stonewalled her public records request, for the second time since 2016, seeking documents on drugs Ohio uses for capital punishment.

Elizabeth Och, a Denver attorney, alleged to the Ohio Supreme Court in November that the state Department of Rehabilitation and Correction has failed to respond outright to a July request for records related to the state’s acquisition of drugs used in the execution process.

“No well-informed public office would reasonably believe that completely failing to respond satisfies the public office’s obligation to affirmatively or negatively respond to a request within a reasonable time,” she wrote in a court filing.

On Monday, Chief Justice Maureen O’Connor ordered the department to answer to the lawsuit in court within the next three weeks.

Och’s most recent records request, which she provided to the court, is dated July 19, 2019. It seeks inventory logs, expiration dates of drugs, acquisition documents, correspondence with drug manufacturers, destruction notices, “chain of custody” documents, quality testing documents, the state’s execution protocol and other documents — all related to the state’s practice of executions via lethal injection.

The state failed to respond, she alleged, let alone provide the records she sought.

The lawsuit marks Och’s second public records battle with the ODRC over documents related to lethal injections. It comes as the state’s practice of capital punishment has been in a holding pattern due to a struggle to obtain drugs used to perform executions. Ohio has not put a killer to death in 18 months, and Gov. Mike DeWine has issued eight execution delays since taking office, according to a Statehouse News Bureau report.

An ODRC spokeswoman declined to comment on either lawsuit.

Och made a similar request in 2016, which snowballed into a lawsuit before the Supreme Court and a January 2019 ruling in Och’s favor.

In an interview, John Grenier, a Cincinnati attorney representing Och, said they got most of the information they were seeking after the court handled the issue. He said they filed the second request (and subsequent lawsuit) in 2019 seeking updated records.

“It’s déjà vu,” he said. “We made the request to go back and pick up the records that had accumulated when they were ignoring us. And then they ignored us again.”

In late 2016, Och filed a substantively similar records request. An ODRC representative at the time acknowledged receiving the request but failed to furnish the documents or deny the request and claim a specific exemption to Ohio public records laws.

All told, it took nearly 10 months and a lawsuit until ODRC began producing documents.

“ODRC’s conduct in this case is patently contrary to the public policy of open government,” Och alleged in 2016.

After Och filed her 2016 lawsuit, the state furnished some records while withholding others.

The Ohio General Assembly passed a law in 2013 allowing corporations that manufacture lethal injection drugs to remain anonymous, should they request as much in writing to the department.

ODRC lawyers, citing this law, argued they have the right to withhold information that could be used to identify the manufacturers — not just documents explicitly identifying the manufacturers.

“The General Assembly essentially concluded that without the ability to protect the identities of its drug sources, the state would be severely hampered in carrying out executions,” the ODRC wrote.

Two drug manufacturers, however, filed briefs supporting Och.

Both Fresenius Kabi and Sandoz Inc. said they do not want their drugs to be used for capital punishment (although Fresenius Kabi said it has no position on capital punishment generally). They argued they have an interest in the case because they should have a right to know whether their drugs are being used as devices of death, not medicine.

“The use of the medicines in lethal injections carries with it serious reputational, fiscal and legal risks for the manufacturers of these medicines,” the manufacturers wrote. “The manufacturers have a keen and important interest in knowing whether any department of corrections have obtained their drugs despite and in contravention of their distribution controls and contracts.”

The court ultimately sided with Och, ordering DCR to furnish some, but not all, of the documents and pay for the court costs and Och’s attorney fees.

Grenier said he generally agrees that the state has the right to withhold information that could be used to out manufacturers who seek privacy but thinks the state has applied it too broadly.