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Bray v. Lombardi

Court of Appeals of Missouri, Western District, Second Division

February 14, 2017

JOAN BRAY, Respondent,
v.
GEORGE LOMBARDI, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE MISSOURI DEPARTMENT OF CORRECTIONS, MATT BRIESACHER, IN HIS OFFICIAL CAPACITY AS DEPUTY COUNSEL OF THE MISSOURI DEPARTMENT OF CORRECTIONS AND MISSOURI DEPARTMENT OF CORRECTIONS, Appellants. THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, AMERICAN CIVIL LIBERTIES UNION OF MISSOURI FOUNDATION AND CHRISTOPHER S MCDANIEL, Respondents, GUARDIAN NEWS AND MEDIA LLC, ET AL., Respondents,

         Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge.

          Before: Lisa White Hardwick, Presiding Judge, Karen King Mitchell, Judge, Anthony Rex Gabbert, Judge.

          ANTHONY REX GABBERT, JUDGE.

         Introduction

         George Lombardi, in his official capacity as Director of the Missouri Department of Corrections ("the DOC") appeals the judgment of the Circuit Court of Cole County, Missouri ("trial court") in favor of Joan Bray which awarded attorney's fees to Bray, pursuant to Section 610.027, RSMo Cum. Supp. 2013, specifically due to the trial court's conclusion that the DOC violated the Sunshine Law. On appeal, the DOC argues that: (1) the trial court erred in granting partial summary judgment and ordering disclosure of records that are protected by Section 546.720.2, RSMo Cum. Supp. 2013; (2) the trial court erred in awarding attorney's fees because the DOC did not knowingly or purposely violate the Sunshine Law; (3) the trial court erred in ruling the DOC violated the Sunshine Law by failing to produce records in existence at the time of the records request, but not records existing between the date of the request and the DOC's response; and (4) the trial court erred in finding the DOC violated the Sunshine Law, purposely or otherwise, by not producing records in the public domain previously filed in federal court because such records are closed by Section 546.720. We reverse.

         Factual and Procedural Background

         On August 28, 2007, House Bill 820 took effect. As enacted, the bill added the following subsection to Section 546.720:

The director of the department of corrections shall select an execution team which shall consist of those persons who administer lethal gas or lethal chemicals and those persons, such as medical personnel, who provide direct support for the administration of lethal gas or lethal chemicals. The identities of members of the execution team, as defined in the execution protocol of the department of corrections, shall be kept confidential.

§ 546.720.2.

         From 2007 to 2013, the execution protocol included medical personnel contracted by the DOC who were present at the executions. Also during this time period, the DOC released information about the source of the lethal injection drugs upon request. On October 18, 2013, the DOC revised the definition of the execution team in its protocol and added additional members to the execution team. The execution protocol now reads:

The execution team consists of department employees and contracted medical personnel including a physician, nurse, and pharmacist. The execution team also consists of anyone selected by the department director…including individuals who prescribe, compound, prepare, or otherwise supply the chemicals for use in the lethal injection procedure.

         In this same October 18, 2013, revision, the DOC included pentobarbital as its execution drug. The DOC did so because their previous international supplier of propofol requested that all remaining supplies no longer be used and returned. The DOC was forced to search for pharmacists to provide pentobarbital. The only individuals willing to provide the lethal chemical required the assurance of confidentiality; therefore, the DOC revised its execution protocol to ensure that pharmacists providing lethal injection drugs were protected from exposure.

         On November 5, 2013, Joan Bray submitted a Sunshine Law request, seeking records regarding "the drug pentobarbital, any of its precursors, and any and all other drugs that the department of corrections intends to utilize in executions." The request further included any and all records indicating the source of any of the specified drugs in the DOC's current inventory.

         On November 18, 2013, Deputy Counsel for the DOC, Matthew Briesacher, responded to the request, but redacted information that could possibly reveal identities of the execution team members who supplied pentobarbital, citing Section 546.720.2. On January 31, 2014, Bray filed suit seeking to reveal the source of the suppliers of pentobarbital.

         On April 15, 2014, Guardian US submitted a request to the DOC's custodian of records seeking access to certain public records relating to the State's use of lethal injection drugs in executions. Relevant here is their request for the source of the execution drugs and the chemical composition itself. The DOC acknowledged receipt of Guardian's request on April 17, 2014. On April 25, 2014, the DOC produced a one-page document containing the public portions of the execution protocol, and advised that ...


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