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Indiana Department of Correction v. Toomey

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  1. Freedom of Information

Amicus brief filed by the Reporters Committee for Freedom of the Press, Society of Professional Journalists and 15 media organizations

Court: Indiana Supreme Court

Date Filed: Jan. 17, 2020

Update: On Feb. 25, 2021, the Indiana Supreme Court published a one-page order reporting that it had deadlocked 2-2, with one justice not participating. As a result, per the Indiana Appellate rules, the decision of the trial court is deemed affirmed. 

Background: In May 2014, A. Katherine Toomey submitted a request under Indiana’s Access to Public Records Act seeking records about the state Department of Correction’s lethal injection drugs. Among other things, Toomey requested information on any manufacturers, pharmacies and other entities the department has been in contact with regarding such drugs.

The Department of Correction withheld responsive records, including documents revealing the identity of lethal injection drug suppliers, prompting Toomey to file suit.

In October 2016, the trial court ordered the department to provide Toomey with documents identifying the manufacturers and vendors of the drugs used in its lethal injections. The department appealed, and while the appeal was pending, the Indiana Legislature passed a statute making the identity of lethal injection drug suppliers confidential. The statute also applied retroactively to requests for information made under APRA.

After the “Secrecy Statute” was signed into law, the Department of Correction filed a motion to modify the trial court’s October 2016 order, arguing that sections of the information the department was ordered to release were now confidential. The trial court denied the department’s motion on a number of grounds, one of which was a holding that the Secrecy Statute is an unconstitutional prior restraint. The Department of Correction appealed the trial court’s decision to the Indiana Supreme Court.

Our position: The Indiana Supreme Court should affirm the trial court’s ruling that the Secrecy Statute violates the First Amendment and Article 1, Section 9 of the Indiana Constitution.

  • The Secrecy Statute is a prior restraint that will inhibit important reporting on a matter of public concern.
  • The Secrecy Statute is a content-based restriction on speech that cannot overcome strict scrutiny, which requires that the law be narrowly tailored to serve a compelling state interest.
  • The Secrecy Statute impermissibly burdens the public’s First Amendment right of access to information regarding the identities of execution drug suppliers.

Quote: “The Secrecy Statute is a prior restraint that chills reporter-source communications concerning the entities that provide lethal injection drugs to the State, a content-based restriction on speech that stymies the ability of the news media to report on this matter of significant public interest, and a denial of the public’s qualified First Amendment right of access to information about the source of the drugs used in executions.”

Related: Attorneys for the Reporters Committee filed a public records lawsuit in Oklahoma in 2014 on behalf of journalist Ziva Branstetter and Tulsa World seeking documents related to the botched execution of Clayton Lockett. In 2018, an Oklahoma judge issued a first-of-its-kind ruling in the state that officials violated open records laws by failing to provide timely access to execution records.

In 2015, the Reporters Committee and the American Civil Liberties Union of Missouri prevailed in a lawsuit challenging Missouri officials’ authority to hide the identities of pharmacies and laboratories that compound, test and supply lethal injection drugs.

In a 2015 letter to the Virginia House of Delegates, the Reporters Committee expressed its opposition to a bill that would have exempted information on lethal injection drugs and their suppliers from the state’s Freedom of Information Act. The bill was ultimately defeated by a vote of 56-42.