Lethal Injection Secrecy, Private Prison Project, and More

Lethal Injection Secrecy, Private Prison Project, and More
July 25, 2014

This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.

Lethal Injection Secrecy: Over at Pacific Standard, the always-readable Ted Scheinman discusses the veil of secrecy surrounding the drug cocktails being used in lethal injections. As I've written in this space before, states across the country refuse to disclose the details of the drug compounds now used in executions since Europe stopped importing sodium thiopental. In Arizona, death row inmate Joseph Woods filed an emergency appeal for information about the drug compounds that were to be used to kill him, as well as the qualifications of his execution team.

Woods’ case is predicated on a First Amendment argument, rather than on the more traditional Eighth Amendment proscription of cruel and unusual punishment, and this premise could prove scaly as Arizona’s state attorney general appeals the 9th Circuit’s decision. Dale Baich, Woods’ attorney, has lodged the logical equivalent of a “petition [to] the Government for a redress of grievances,” though perhaps he construes “redress” rather broadly: “Today,” Woods’ attorney said on Saturday, “the Court has made a well-reasoned ruling affirming the core First Amendment principles regarding the public’s right to know, which aid all parts of our democratic government.”

Judge Jay Bybee, writing Saturday’s dissent, disagrees, holding that the First Amendment is “not an untethered license to governmental information.”

Maybe not. But government opacity vis-à-vis the death penalty is not especially hip this year, and even as other death-row inmates pursue Woods’ line of appeal, various states continue to push regressive and recondite laws for protecting private companies who traffic in deadly drug-combinations. If disseminating such information will imperil a state’s latitude to pollute the veins of the condemned (do not forget what happened in Oklahoma this April), perhaps a coalition of private citizens can help broker a solution. By this I mean that it would be satisfying, in a grim but righteous way, if a cadre of domestic hackers, journalists, and lawyers began to unmask the compounding laboratories that continue to operate largely sub rosa, in some cases violating basic federal commerce codes.

Woods' execution took two hours.


In a FOIA suit for DOJ's criminal discovery guidebook, a criminal defense attorney group argues the government failed to articulate any harm that would come from disclosure, via the Legal Times:

On Wednesday, the NACDL, represented pro bono by Jones Day partner Kerri Ruttenberg, countered that the Justice Department failed to show that anything on its “laundry list of doom-and-gloom outcomes” would occur if the book is released to the public.

“While in the abstract this parade of horribles, from “national security” to witness safety to evidence tampering, indeed would be a serious concern, DOJ baldly relies on these buzzwords without providing any logical explanation for how disclosure of the Blue Book, a document explaining the requirements for the government to meet its constitutional obligations to disclose exculpatory information, would remotely cause any of those outcomes,” Ruttenberg wrote.

Other court happenings this week ...

  • 'More machinations in Second Circuit targeted killing FOIA litigation.' What, you thought the government was just going to hand those memos over? Here's the ACLU's response to 'pointless merry-go-round.'
  • EPIC sues Customs and Border Patrol for docs on intelligence database
  • DOJ sued for withholding docs on Siemens compliance
  • Obama admin fights to keep White House emails re: Shirley Sherrod firing sealed in libel lawsuit
  • Judicial Watch sues DOJ for communications on clemency push
  • Judicial Watch sues DoD for communications surrounding FOIA for bin Laden death photos
  • Judicial Watch sues everyone for everything.
  • Landmark Legal Foundation asks judge to sanction EPA for destroying records


Freedominfo.org has the dish on where the FOIA reform bill in the Senate is going. According to the site, the Senate Judiciary Committee will soon announce the bill has been marked up and plans to hold committee votes on the amendments in September.

"Third, with time short because of upcoming elections, the bipartisan staffs of the House and Senate committees already are holding what were termed 'productive bipartisan, bicameral discussions' to smooth the consolidation of the two bills for passage."

I emailed the Senate Judiciary Committee today for more info, but didn't heard back immediately.

A brief reminder of how the system works now: The Justice Department just reviewed the silly redactions to a list of Office of Legal Counsel memos obtained by Huffington Post reporter Ryan J. Reilly. Would you believe it found the info was all "properly withheld?" To recap, the OLC declared that the titles of its memos are protected from disclosure under the "deliberative process" exemption, and the department tasked with overseeing the enforcement of the Freedom of Information Act rubber-stamped OLC's farcical application of Exemption 5.

Redaction of the Week: Courtesy of Jason Leopold and the National Reconnaissance Office

Private Prison Project: "This week MuckRock is kicking off a long term investigation into the grey area between these private correctional corporations and the government agencies that provide them with financial support and jurisdictional authority. What can we know about a multi-billion dollar industry that is largely fueled by American tax dollars? Well, you can help us find out."

FBI refuses to release drone privacy assessment: Would you like to know how drones could potentially impact your privacy rights? Sorry, that's private.

The crazy emails that took down NSA spook John Schindle: Wild story reported through FOIA by Gawker's J.K. Trotter.

The Most Transparent Administration History, an ongoing series

If you heard a long, sustained cackle coming from the direction of Washington, D.C. this week, it was the Beltway press crowd having a laugh at the tender new White House press secretary.

White House press secretary Josh Earnest had the brass to criticize a Washington Post story for using anonymous sources, a practice which the White House often demands when conducting interviews with reporters. Later that same day, in fact, the White House was holding a background conference call with reporters and an unnamed "senior administration official."

Then on Tuesday, the White House made the reasonable choice to block reporters from attending a ceremony to honor the Apollo 11 astronauts, which led the White House Correspondent's Association to lodge a formal complaint.

On Wednesday, the White House blocked reporters from attending an Obama fundraiser with two major Democratic donors. If you'll recall, Earnest cited access to fundraisers as one of the administration's big steps toward improving transparency. “Reporters for years clamored to get access to fundraisers the president hosted or attended that were hosted in private homes,” Earnest said in an interview on Meet The Press. “Reporters now have access to those when this president goes to a private home.”

And here's the Washington Post on the now-ubiquitous presence of press handlers at interviews between reporters and administration officials.

Meanwhile, the Center for Public Integrity has an illuminating story on its three-month-long effort to get an on-the-record interview with a senior EPA official.

House Veterans Affairs Chairman: VA still stonewalling us.

Whistleblower News

A Project On Government Oversight report found scores of instances of whistleblower retaliation at Veterans Affairs hospitals: "The report compiled by the Project on Government Oversight, a group that conducts its own investigations and works with whistleblowers, is based on comments and complaints filed by nearly 800 current and former VA employees and veterans. Those comments indicate that concerns about the VA go far beyond the long waiting times or falsified appointment records that have received much recent attention, extending to the quality of health care services veterans receive, the report said."

"A recurring and fundamental theme has become clear: VA employees across the country fear they will face repercussions if they dare to raise a dissenting voice," said Danielle Brian, the group's executive director. "Until we eliminate the culture of intimidation and climate of fear, no reforms will be able to turn this broken agency around."

Missed this one last week, but more than 18,500 petitioners told the Veterans Affairs Inspector General to drop its subpoena for POGO's whistleblower records.

Nailed it: SEC turns over whistleblower tip to defense attorneys at hedge fund where tip alleged wrongdoing.


Judge rules New Jersey must release FOIA logs: If you'll recall, the Chris Christie administration has taken the novel stance as of late that public record request logs are not subject to the New Jersey's freedom of information laws because of privacy concerns. A judge disagreed, and in response to an ACLU lawsuit, has ordered the state to release the logs.

More state news ...

  • Norfolk Southern sues Maryland to stop disclosure of crude oil shipments. Maryland is the latest state to find itself in the middle of a public records fight between news orgs and freight companies over oil trains.
  • Great story: 'How an activist journalist’s commitment to a poor Chicago community led to a big FOIA win'
  • Judge rules D.C. city officials can't shield personal emails from FOIA
  • D.C. launches online FOIA portal, joining New York City
  • 'The 31 suspicious emails buried by Ole Miss.' Another case of FERPA abuse.
  • New York Times appeals University of Oregon redactions in sexual assault case involving UO basketball players