By Kate Brumback
Associated Press
ATLANTA — A federal appeals court is considering whether a lower court judge was wrong to rule that Alabama’s execution protocol should be unsealed at the request of news outlets.
U.S. District Judge Karon Bowdre ruled in May that the public has “a common law right of access” to a redacted version of the state’s lethal injection protocol and related court records. The state appealed, and a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta on Monday heard arguments in the appeal.
The Associated Press, The Montgomery Advertiser and the Alabama Media Group had asked the court in March to unseal records in a lawsuit brought by death row inmate Doyle Lee Hamm. Alabama prison officials in February halted Hamm’s scheduled execution at the last minute when the lethal injection team was unable to connect an intravenous line to his veins.
Alabama has for years refused to release the details of its execution process and where it gets the drugs used in lethal injections.
The public has a great interest in understanding how Alabama carries out executions and the unsealing of the documents would likely “promote understanding of a historically significant event,” Bowdre wrote in a 19-page memorandum ordering the release of the records. She wrote that the state could keep secret some information, like the names of low-level prison employees involved in executions.
Hamm’s attorneys had sued to block his execution, saying his veins were so damaged by lymphoma, hepatitis and past drug use that it would be extremely difficult to execute him. As part of that litigation, the state provided Hamm’s attorneys with a redacted copy of the execution protocol after securing a protective order from the judge to keep it confidential.
Stephen Frisby, a lawyer for the state argued in court that while the execution protocol was provided to Hamm’s attorneys and the judge, it was never attached to a filing in the case and therefore shouldn’t be considered a judicial record that is subject to release.
Bowdre had concluded in her order that it was a judicial record because she “needed and relied upon” that document to decide Hamm’s case. The reason it wasn’t formally filed is because the parties and the court were rushing to address Hamm’s claim before his scheduled execution date, she wrote.
Frisby argued that even if the execution protocol is subject to the common-law right of access, the state’s interest in keeping it secret for security reasons outweighs the interest of news outlets to access it.
Catherine Martinez, representing the news outlets, acknowledged that the state has legitimate security interests but argued that redactions can eliminate that problem. The balancing test between the parties’ interests starts with the presumption that judicial records are open to the public, she said.
Frisby also argued that the news outlets shouldn’t have been allowed to intervene in Hamm’s case because they waited until the case had been dismissed. But Martinez noted that their motion was filed the same day that the case was dismissed and that the court’s jurisdiction over a sealing order extends beyond the end of the case.
The panel of judges grilled Frisby, repeatedly asking why an execution protocol should be exempt from release and whether the public is entitled to know what the judge considers when deciding a case.
But Judge Gerald Tjoflat cautioned Martinez not to take the harsh questioning of the state as an indication that her side had a leg up. The judges asked Martinez about the timing of the new outlets’ motion to intervene in the case and the balancing test judges use to determine whether to unseal documents.