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Sweeping language on execution drugs flouts courts, open records law

Dennis HetzelBy Dennis Hetzel

The State of Ohio botched its last execution.  The convicted killer struggled for nearly 25 minutes before finally succumbing.  Officials attributed it to the difficulty in obtaining the drug “cocktail” needed – drugs that apparently few companies want to make and sell for the purpose of executions, responding in some cases to public pressure or pressure from their own governments overseas.

The answer to the problem, according to some Ohio legislators and Attorney General Mike DeWine, is more secrecy.

At the Ohio Newspaper Association, we knew that this bill (HB 663) was coming, but we were shocked by the sweeping language and the overall tone of this bill.

How sweeping is the language?  Blanket immunity goes to all the key players. The courts are restricted from obtaining information through subpoena or discovery.  Businesses are restricted from the kinds of contracts they can enter into with other businesses.  The bill inserts government into the relationship between physicians and their professional organizations.

One rationale is that companies that might provide these drugs face significant harassment and even threats, and thus must be protected. However, we have not seen documentation of threats in Ohio that rise above normal types of protests that citizens are entitled to mount against businesses that do controversial things and thus should accept some heat in their corporate kitchens. Nor have we seen documentation as to why the laws we already have against threats and intimidation aren’t good enough when there are legitimate threats.

How sweeping is the language? A new public records exception says this:  “Information and records that relate in any manner to the execution of a sentence of death are made confidential.”  Note the phrase “any manner.” (And, by the way, this would be letter “cc” in the long list of exceptions legislators keep larding onto what was once a model open records law in Ohio.  We have run out of single letters.)

We agree with Rep. Mike Curtin, D-Columbus, who said this bill is not about whether one is for or against capital punishment. That is the law in Ohio. It is about upholding the long tradition of the process being as transparent as possible.

To that end, we have some suggestions. If it really is shown to be essential to protect the identities of drug companies and pharmacies, black-out (redact) the names for some period of time with the records eventually becoming public.  Maintain confidentiality for the physicians and public employees who directly carry out the executions. In those cases, the privacy interest seems direct and strong.  And leave it at that.

Under the current language, it will be impossible for journalists, citizens, families and anyone else outside a handful of government officials and bureaucrats to scrutinize the process.  The new, open-ended exception will invite the courts to block access to more and more information.

We have an open records law that supposedly contains a strong presumption that records are open with rare exceptions drawn as narrowly as possible. The most fundamental right of all is the right to life. There must be reasonable outside scrutiny and accountability when the government itself is putting people to death.

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