The state’s fight to keep the media and a civil liberties group from seeing records about the lethal injection drugs used to put Carey Dean Moore to death last year landed in front of the state’s highest court Tuesday.

The Nebraska Attorney General’s office wants the Supreme Court to reverse a Lincoln judge’s 2018 ruling ordering Prisons Director Scott Frakes to release certain records to the Lincoln Journal Star, Omaha World-Herald and the ACLU of Nebraska.

The newspapers and the ACLU want the court to force Nebraska officials to release the records that Frakes refused to release under public-records law.

In separate lawsuits, their attorneys argued the documents — which include photos of drug packaging, purchase orders, emails between a prison employee and the drug supplier and between the Drug Enforcement Administration and the prison, and an invoice related to the drugs — all are public records and should be released.

Assistant Attorney General Ryan Post argued against it then, and Tuesday, saying that identifying the state's lethal injection drug supplier reasonably could lead to execution team members’ names, which by state law are protected.

Tuesday, he said it was the requesting parties’ burden to show that the records were public records and didn’t contain the names of execution team members or couldn’t be reasonably calculated to lead to the identity of team members.

“How would they do that?” Justice Jeffrey Funke asked.

Post said they could have asked a judge to privately review the documents. He said the Legislature didn't intend for the state to offer the information. If the other side wants it, they have to sue to get it in front of a judge and provide testimony.

“If this seems difficult to overcome, it’s because the Legislature intended for it to be that way,” Post said.

Some justices seemed bothered that the state didn’t have a nondisclosure agreement with the drug supplier to keep it from releasing the name of someone on the execution team.

Post said if a drug supplier’s livelihood was being threatened by disclosure, a nondisclosure agreement likely wouldn’t make any difference.

“So don’t bother? I don’t understand the answer,” Justice Lindsey Miller-Lerman said.

Post likened it to a state law preventing the release of information that is likely to present a clear threat to the security of radioactive material.

“If we hand that key over, the question really is ‘Is it conceivable that the person who receives the key isn’t going to open the door?'” he said.

On the other side, Chris Eickholt, the attorney for the ACLU, said the state’s claim is speculative at best that releasing the name of the drug supplier would lead to the disclosure of an execution team member.

He argued that the Legislature knows how to make exemptions and didn’t provide for the exemption of the identify of the drug supplier.

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Specifically, state lawmakers declined to make drug suppliers part of the execution team, which would have kept them confidential. A bill proposing it didn’t get out of committee.

Attorney Shawn Renner, who represented the newspapers, went a step further.

“It’s not up to the Attorney General’s office. It’s not up to Director Frakes. And, I’m sorry, but it’s not up to this court to override that legislative determination. The legislative history couldn’t be clearer. The identity of the execution drug supplier is not confidential in Nebraska. Period,” he said.

But Justice William Cassel seemed unconvinced.

“Of course we only look to legislative history if there’s ambiguity in the statutory text,” he said.

Renner argued they had just discussed ambiguity about what was "reasonably calculated" to lead to the disclosure of an execution team member's name. He said Frakes could redact any team members' names that appear on the documents and release them.

The Supreme Court will rule later.

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Reach the writer at 402-473-7237 or lpilger@journalstar.com.

On Twitter @LJSpilger.


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