Capital punishment in Nebraska has been a point of contention in recent years. From 1997 to 2018, only two inmates on death row were executed, with one of the executions being carried out by lethal injection. In fact, it was the state’s first use of the lethal injection, one that was met with criticism from the American Civil Liberties Union. After the execution of Casey Dean Moore by lethal injection in 2018, the ACLU put out a statement stating that the execution was “shrouded in secrecy,” and that the process of administering the lethal injection “does not comport with Nebraska’s proud tradition of open government.”
Two years later, this statement is echoed in State ex rel. BH Media Group v. Frakes. The lawsuit was heard by the Nebraska Supreme Court, on appeal from the District Court for the Third Judicial District of Nebraska, having been consolidated with three other cases. It was brought on behalf of the Omaha World-Herald, the Lincoln Journal Star, and the ACLU of Nebraska Foundation. They are referred to in this case as the relators.
The case was brought against Scott Frakes, director of the Nebraska Department of Correctional Services, or DCS.
The relators had submitted a request for public records regarding the DCS’ purchase of pharmaceutical drugs to use in the lethal injection execution process. DCS granted these requests, but informed the journalists that there were certain documents that must be withheld from disclosure, asserting that they are confidential and exempt from disclosure under Nebraska Law. The most important of these withheld documents are communications between DCS and a supplier of the lethal injection drugs.
At trial in the district court, several journalists on behalf of the Omaha World-Herald, the Lincoln Journal Star, and the ACLU of Nebraska testified that they would use the withheld documents to interview the drug supplier and find out more information about the execution process in Nebraska.
In their interpretation of the public records statute, the district court placed the burden of proof on Frakes, to prove that the documents being requested were exempt from disclosure. Frakes cited a Nebraska statute that makes the identity of all members of the execution team confidential and exempt from disclosure. He argued that the withheld communications identify the supplier, who could in turn identify members of the execution team. He claimed to have withheld the information to prevent threats or harassment to members of the team.
The district court found that Frakes had proved some documents to be exempt from disclosure, but that he had failed to show why the communication between DCS and the drug supplier would lead to the identification of an execution team member. Because of this, those records would need to be disclosed.
That court’s decision was appealed to the Nebraska Supreme Court by both Frakes and the newspapers. Frakes claimed that the district court had erred in several of its findings. The relators cross-appealed, claiming that they should have received redacted versions of the withheld documents.
Before the Nebraska Supreme Court, Frakes argued that the documents requested were not public record under Nebraska law. The Court applied narrow construction to the language of the public record statute and found that no exemptions applied to the documents being requested by the relators. Frakes also went on to argue that he did meet the burden of proof to provide clear evidence that the disclosure of the documents would lead to the identification of an execution team member. However, the Nebraska Supreme Court did not find an error with the district court’s decision that he did not.
The Court also addressed the issue of providing the relators with redacted versions of the withheld documents. They found that Frakes’ argument against the disclosure of the documents, as well as the district court’s decision to release them, did not address the fact that it was possible to provide the relators with redacted versions of the documents, in a sort of win-win for both parties. The DCS would be able to provide the relators with the requested documents, while removing any information that could reasonably lead to a team member’s identity being exposed.
The Nebraska Supreme Court reversed and remanded the case with instructions for Frakes and the DCS to do just that. While these records may not lead to substantial information, it is a step toward a more transparent government, and will allow journalists to conduct more in-depth investigations into capital punishment in Nebraska.
