The argument that the First Amendment includes a right to know is gaining traction in Arizona and the Ninth Circuit Court of Appeals.
In the fall of 2013 was the first time I heard this argument made. The state of Arizona as well as other death penalty states have had trouble for a couple of years now procuring drugs used in the administration of the death penalty. Some companies object on moral grounds that their drugs are used in executions. The companies who do not object can be subject to public protests and scrutiny that probably is not favorable to their business. It is no surprise that states including Arizona have become very tight-lipped about their execution procedures.
The defense attorneys were worried at that point the state of Arizona was planning to used expired drugs to carry-out the execution. Basically their argument was two steps: 1. There was a First Amendment right to know if the drugs were indeed expired or not; and 2. They need to know was necessary so they could file a an Eighth Amendment claim against cruel and unusual punishment if Arizona planned on using expired drugs. However, the Eighth Amendment cruel and unusual punishment claim hung on whether the public had a right to know Arizona’s death penalty procedures.
I think this argument is going to be used more as state executions are not going smoothly. CNN says “Botched Executions Can’t Be the New Norm.” The Huffington Post examines “How Arizona, Ohio and Oklahoma Executions Went Awry.”
In fact, I think the argument that the First Amendment includes a right to know may gain traction outside of death penalty realms and could be applicable to open record requests of all types.
The Argument as Used in Woods v. Ryan
After Arizona moved for a warrant of execution requests the defense “sent the first of four letters inquiring about the method the Department would use to execute Wood.” Wood v. Ryan, 14-16310, at *5 (9th Cir. July 19, 2014). The questions were procedural in nature: which drugs would be used, how much would be administered, the credentials of who would administer the drugs, and the name of the manufacturer. Id.
The Arizona Department of Corrections (ADC) did not directly respond to the defense attorneys’ questions, but offered vague explanations. The drugs would be obtained domestically and Food and Drug Administration (FDA) approved, although it would not go into further detail based on an Arizona privacy law Ariz. Rev. Stat. § 13-757.
The defense attorneys again requested manufacturer information, expiration dates of the drugs, and for official copies describing Ohio’s new execution protocol.
ADC responded to the request with documents do display the expiration dates of the Midazolam and Hydromorphone. The drugs are good through September 2015. However the Department of Corrections redacted the manufacture’s name. The manufacture’s name may not seem like a big deal, but the Arizona Department of Corrections was previously caught by a federal court in 2012 for illegally importing drugs, with the (FDA’s) approval, to bypass regulations and import unapproved drugs to carry out executions. After being mislead by the Arizona Department of Corrections before, the defense attorneys were trying to make sure the proper procedure was used.
Following this correspondence, Wood still seeks: (1) the source(s), manufacturer(s), National Drug Codes (“NDCs”), and lot numbers of the drugs the Department intends to use in his execution; (2) non-personally identifying information detailing the qualifications of the personnel the Department will use in his execution; and (3) information and documents explaining how the Department developed its current lethal-injection drug protocol.
— Wood v. Ryan, 14-16310, at *7 (9th Cir. July 19, 2014).
The defense claimed the state of Arizona is violating the following protections:
1. First Amendment right to petition the government for redress and grievances; and
2. First Amendment right to be informed about the manner in which the manner Arizona implements the death penalty.
The basis of the First Amendment is to be able to criticize the government. “Underlying this right is the common understanding that a major purpose of that Amendment was to protect free discussion of governmental affairs.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982)) (internal citations omitted). The First Amendment protects speech from governmental intrusion, so it only makes sense is one of the main purposes is to protect citizens from criticizing it. “This protection ensures that the individual citizen can effectively participate in and contribute to our republican system of government.” Id.
Seeking access to government documents and procedures invokes a First Amendment test that looks to “‘complementary considerations'” which inform the analysis: “(1) whether the place and process have historically been open to the press and general public[ ] and (2) whether public access plays a significant positive role in the functioning of the particular process in question.” Wood v. Ryan, 14-16310, at *10-11 (9th Cir. July 19, 2014) (quoting Cal. First Amendment Coal. v. Woodford, 299 F.3d 868, 875 (9th Cir 2002) also quoting Press Enterprise II v. Superior Court, 478 U.S. 1, 8-9 (1986))).
The ruling in Wood would be vacated a few days later reversing the preliminary injunction granted by the Ninth Circuit Court of Appeals. However, the First Amendment analysis can stand independently of the preliminary injunction and potentially be used in future applications.
I find this to be a fascinating First Amendment argument that is fairly unique. Before I attended that court hearing last summer I never really thought of the First Amendment guaranteeing a right to know. It is even more encouraging that the argument is starting to become accepted in the Ninth Circuit. Even though the Court is discussing execution procedures there is nothing to limit this analysis to other governmental functions. The “complimentary considerations” test could apply to a wide variety of situations where individuals seek information about governmental information / procedures.
I would like to see how this could supplement a Freedom of Information Act / state Open Records request to give it more teeth on First Amendment grounds and not just relying on federal or state law.