Greg Abbott: Keep execution drug supplier secret

In an about-face from previous open government decisions, Attorney General Greg Abbott’s office said Thursday that Texas prison officials must keep secret the source of the state’s execution drugs.

Disclosing the drug supplier’s name would place the compounding pharmacy or pharmacist at substantial risk of “physical harm,” Abbott’s office said in a letter to prison officials.

The decision reversed course at the attorney general’s Open Records Division, which had previously ordered prison officials to reveal the state’s drug suppliers under the Texas Public Information Act.

Although Abbott’s office still rejected attempts to withhold other information — such as purchase dates and drug-testing data — Thursday’s finding was a victory for the Texas Department of Criminal Justice, which has been fighting efforts by defense lawyers to identify the state’s new supplier of the execution drug pentobarbital.

Defense lawyers argue that the information is needed to verify the drug’s effectiveness, ensuring that death row inmates aren’t subjected to a painful death in violation of the U.S. Constitution’s prohibition on cruel and unusual punishment. Prison officials counter that disclosing the information would jeopardize the state’s drug supply if pharmacists, fearing a public backlash, decline to deal with the state.

Last October, the pharmacist in charge of the Woodlands Compounding Pharmacy near Houston demanded that Texas return 16 vials of pentobarbital when a “firestorm” erupted after its identity was revealed under open records laws.

Prison officials refused the pharmacy’s request, then ramped up efforts to keep subsequent drug suppliers secret.

Abbott, the Republican candidate for governor, didn’t sign Thursday’s letter — a common practice for open records findings from his agency.

But defense lawyer Maurie Levin, who has sued prison officials in an attempt to force disclosure of the state’s pentobarbital supplier, said the reversal raised questions about Abbott’s commitment to government transparency.

“It is deeply disturbing and frankly quite shocking that the highest law enforcement official in the state has suddenly reversed his position on disclosure when it comes to lethal injection, particularly considering the horrifically botched execution in Oklahoma last month that was the direct result of secrecy surrounding the process,” Levin said. She was referring to the execution of Clayton Lockett, 38, who died of a heart attack after Oklahoma prison officials halted his execution — using a new drug cocktail — as he was writhing on the death chamber gurney.

Thursday’s letter from Abbott’s Open Records Division cited a 2011 Texas Supreme Court ruling that said typically public information “may be withheld if disclosure would create a substantial threat of physical harm.”

Prison officials had tried — and failed — to use that Supreme Court ruling in previous attempts to withhold the name of the state’s execution drug supplier. In July 2012, for example, Abbott’s office found that prison officials had failed to prove that harassment of suppliers “could escalate into violence.”

The latest effort, however, included a “threat assessment” from Department of Public Safety Director Steve McCraw that changed the outcome, according to the letter written by Assistant Attorney General Yen-Ha Le.

“It is our assessment that some of the threats made to the Woodlands Compounding Pharmacy that we identified should be taken seriously,” McCraw wrote. “Pharmacies by design are easily accessible to the public and present a soft target to violent attacks.”

Naming the state’s execution drug supplier “should be avoided to the greatest extent possible,” McCraw wrote.

In the letter to prison officials, Le said the Supreme Court noted that “deference must be afforded” to risk assessments made by law enforcement experts. Given McCraw’s evaluation, Le concluded, “We find the department must withhold the identifying information of the pharmacy and pharmacist.”

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