Shielding Lethal Injection Contractors’ Identities Not Justified

The federal Bureau of Prisons hasn’t justified its decision to withhold information that could identify contractors that supply pentobarbital, a drug used in 13 lethal injections in 2020 and 2021, the US Court of Appeals for the D.C. Circuit ruled on Tuesday.

Citizens for Responsibility & Ethics in Washington showed that the agency didn’t properly invoke Exemption 4 of the Freedom of Information Act, which protects from disclosure confidential commercial information and trade secrets, Judge Cornelia T.L. Pillard of the US Court of Appeals for the D.C. Circuit said.

The agency didn’t meet its burden to support nondisclosure of the contractors’ names because it didn’t show that the identities themselves are commercial information, the court said.

The district court on remand must determine whether the contractors’ identities pertain to the exchange of goods or services, or the making of a profit, such that they may be withheld under Exemption 4, Pillard said.

Exemption 4 doesn’t cover all information the public disclosure of which could inflict commercial harm, and doesn’t make potential consequences of disclosure an explicit ground for withholding the court said. The identifies may be confidential, but that doesn’t mean they are commercial, it said.

If Congress is concerned about the ability to find willing contractors to supply drugs for executions, it could pass legislation to keep the identities secret. But it hasn’t done so, the court said.

Prices, Quantities

The D.C. Circuit also ruled that the agency didn’t show that key contract terms, such as drug prices and quantities, should be withheld under Exemption 4. The district court didn’t require the agency to explain how the contract terms could reveal the contractors’ identities, the appeals court said.

The D.C. Circuit additionally said the district court should decide in the first instance whether and to what extent any information in public domain demonstrates that the agency waived the application of Exemption 4.

Judge J. Michelle Childs joined in the decision. Judge David B. Sentelle concurred in the judgment, but said it appears that the companies in this case “quite reasonably” want to protect their contractual arrangements by maintaining the confidentiality of their identities.

Evidence shows that previous suppliers were subjected to protests, suffered economic damage, and withdrew from the market once they were identified, Sentelle said.

Wilmer Cutler Pickering Hale and Dorr LLP represents CREW.

The case is Citizens for Responsibility & Ethics in Wash. v. US Dep’t of Justice, D.C. Cir., No. 21-5276, 1/31/23.