The Arkansas Supreme Court
ruled this afternoon that Circuit Judge Mackie Pierc
e was correct in ruling that the state Correction Department must supply labels and package inserts for the execution drug midazolam that had been sought by Steve Shults of Little Rock in a Freedom of Information Act lawsuit.
But the court, in an opinion written by Justice Courtney Goodson, said the Correction Department could redact information on the labels that identified the seller of the drug to the state, such as lot and batch numbers. Judge Pierce had not taken that position.
The Supreme Court said Pierce was correct in reading the state statute as protecting some people in the drug supply chain, but not manufacturers. The Correction Department has argued that the nature of the way manufacturers print their labels make it possible for observers to find out other information about the supplier.
The court said the mandate would issue for release
of the material in three days unless there's a request for a rehearing. Arkansas has an execution scheduled Nov. 9 though lawyers for inmate Jack Greene are trying to stop it because of his mental condition.
The Court was fractured on the case. Chief Justice Dan Kemp and Justices Rhonda Wood, Robin Wynne
and Shawn Womack parted company in part. Justices Karen Baker and Jo Hart apparently joined Goodson without reservation.
Womack wouldn't have released the manufacturers
information, but he concurred to the extent that he agreed with redaction
of seller and supplier information. Wood joined him. Wynne and Kemp disagreed on sending the case back to Pierce to consider what information should be redacted from labels because they said Judge Pierce had already provided for that in his order by directing confidentiality for sellers, providers, testing labs, pharmacies and others.
A spokesman for Attorney General Leslie Rutledge commented:
“The Arkansas Supreme Court has correctly concluded that the lot, batch and control numbers on lethal injection drug labels should remain confidential under state law. While the Attorney General does not agree with other aspects of the Court’s ruling, she is pleased that the Court agreed with her arguments on this point.
Here's the full opinion.
PS: This is the second case in which the state has been ordered to provide manufacturer information. In the earlier decision by Judge Wendell Griffen, the opinion noted that the lot and batch information ordered redacted in this case is FDA-required and a quality control measure that does not provide a means to trace supplier or seller.