Media file lawsuit challenging secrecy of Missouri execution drug

ST. LOUIS -- The Associated Press, the Guardian US and three other news organizations filed a lawsuit Thursday challenging the secret way in which Missouri obtains the drugs it uses in lethal injections, arguing the state's actions prohibit public oversight of the death penalty.

The lawsuit asks a state court judge to order the Missouri Department of Corrections to disclose where it purchases drugs used to carry out executions along with details about the composition and quality of those drugs.

"We assert that there is a constitutional right for the public to know the drugs that are used when a state puts someone to death," said Dave Schulz, an attorney for the news organizations and co-director of the Media Freedom and Information Access Clinic at Yale Law School.

A spokeswoman for Missouri Attorney General Chris Koster, Nanci Gonder, declined to comment when asked Thursday about the lawsuit.

Missouri is among the many U.S. states that refuse to disclose where they purchase execution drugs, their makeup and how they are tested.

The sourcing of execution drugs has become an issue countrywide since major drugmakers, many based in Europe, began to refuse selling their products if they were to be used in an execution.

Many states have turned to compounding pharmacies, which are not as heavily regulated as traditional pharmaceutical companies but are able to make the required drugs. Several have refused to name their supplier, sometimes citing security concerns and threats to the pharmacies.

Asked about these threats, law enforcement officials in several states have told the AP they do not know about them, are not actively investigating them or do not consider them to be serious.

Missouri law prohibits naming anyone who is part of the "execution team." The Missouri Department of Corrections considers the drug provider part of that team.

Six men have been executed in the state with the single drug pentobarbital since November. Another execution is scheduled for Wednesday, when Russell Bucklew is set to die for killing a romantic rival as part of a crime spree in southeast Missouri in 1996.

The lawsuit was filed in Jefferson City by the AP; Guardian US, the British newspaper's New York-based American operation; The Kansas City Star, the St. Louis Post-Dispatch and the Springfield News-Leader.

The news organizations submitted requests to the Department of Corrections under Missouri's public records law that sought the "name, chemical composition, concentration, and source of the drugs approved for use in lethal injection executions," details about quality test of the drugs and information about the qualifications of those involved in the process. They also asked for policy statements, regulations and memos related to "assessment or approval" of drugs for lethal injection.

On April 25, the Department of Correction's deputy general counsel, Matthew Briesacher, responded to the Guardian US request with a copy of the protocol. But he refused to release other documents, writing that some of the information is closed under Missouri law, and records are closed "pursuant to the state secret doctrine."

Briesacher did not define the "state secret doctrine." The lawsuit said the Missouri Supreme Court has previously rejected such a "state secrets" privilege, noting further that the AP and the other news organizations have not requested any "state secrets."

The AP, the Star, Post-Dispatch and News-Leader received identical responses on Monday.

As CBS News correspondent Holly Williams reported last month, pentobarbital was developed to treat epilepsy, but in the high doses used in lethal injections, it causes respiratory arrest.

Maya Foa, who works for a British group which campaigns against the death penalty, discovered that the only company with approval from the FDA to sell pentobarbital in the U.S. was a Danish group called Lundbeck.

The death penalty has been banned in the European Union so she made the information public, hoping to force Lundbeck to stop selling pentobarbital to U.S. prisons.

"It was a scandal," Foa said. "It was extraordinary. It was a scandal. It was a big deal in Denmark, and it was a real problem for the company."