Tennessee law protects lethal drug seller identities. A judge will decide how broad that secrecy is.

Tennessee is set to carry out its third lethal injection of the year, with the scheduled execution of Harold Wayne Nichols next week.

Concerns about mismanagement and painful death are growing, especially after the last man to be executed groaned and said he was hurting as he died.

Now, Nichols’ lawyers are fighting for information about the state’s lethal drug supply. A Knox County judge will soon decide whether they get it.

This is one of several legal battles ongoing in Tennessee about access to lethal injection information. State law protects the identities of anyone involved in carrying out a death sentence — be that prison staff, contractors or drug suppliers. But there’s a divide on how much secrecy the law permits.

One side says names and personal information should be redacted, but otherwise records should be widely available. The other says the state should have broad permission to withhold documents. The idea: even if records seem unrelated to sellers’ identities, they can be used as clues in finding the sellers. And that threatens the state’s access to lethal drugs.

The lawsuit

Attorneys from the nonprofit Federal Defender Services of Eastern Tennessee are representing Nichols. One of the organization’s investigators submitted several records requests to the Tennessee Department of Correction over the past year.

Some requests were broad and involved records that would need names redacted. Others seemed to have nothing to do with the sellers — like the expiration dates for the drugs on hand and results from recent quality testing.

Tennessee started using pentobarbital in executions this year. The expiration date matters because the drug loses potency as it ages, and it can also weaken if it’s not stored at the right temperature. Low potency could lead to a slower, more painful death.

The state’s lethal injection protocol requires quality and potency testing ahead of executions. Nichols’ lawyers likely want proof those tests are happening. The state just spent years under a death penalty moratorium, after Gov. Bill Lee found TDOC was failing to test its drugs.

There are also concerns about the drugs after Byron Black’s execution in August. He showed signs of distress — sighing, groaning, and saying he was in pain — for several minutes after the lethal injection drug began flowing. In a court document filed a few weeks before that execution, TDOC’s medical witness testified that inmates undergoing pentobarbital lethal injection should lose consciousness in about 20 seconds. It’s unclear what caused that pain.

TDOC refused to turn over several records, citing an exemption to the state’s open records laws.

Nichols’ lawyers sued TDOC in Knox County Court, arguing that the agency violated state laws when it withheld the information.

“Respondents reliance on the execution secrecy statute … is overly broad, selective, irregular, and arbitrary,” the lawsuit reads.

Last month, Knox County Chancery Court Chancellor John Weaver ordered TDOC to hand over documents to him by Dec. 3, so he can review them privately and determine whether the state applied secrecy laws correctly.

The exemption

Under the Tennessee Public Records Act, most government documents are available to the public upon formal request. When government officials think specific a document falls under an exception, they have to cite the specific piece of state law that spells out the exception.

The refusals given to Nichols’ team all cited Tenn. Code Ann. 10-7-504(h).

It says that any part of a record that identifies people involved in executions should be considered confidential. It offers a list of potential people: state employees, contractors or volunteers who are involved in the execution itself, as well as anyone who was involved in buying or selling supplies and drugs used in the execution.

It focuses specifically on “individuals or entities,” and any information that identifies them.

Nichols’ team notes in the lawsuit that there are no individuals named in the expiration dates on the state’s pentobarbital, the test results, and other information requested.

But the state’s attorney argued it’s not so simple.

“Given the technological reality of our age, the identity of the supplier can be discovered based on bits and pieces of information that on their face do not directly reveal the identity but together with internet research could lead to the discovery of the supplier,” TDOC’s representative wrote in a court filing. “For example, Petitioner requested all ‘packaging of the lethal injection chemicals that were either prepared for the use or used in the execution of Oscar Smith’ … Simply redacting the name from the packaging would not be sufficient to protect the identity of the supplier because the distinctive packaging can be traced to a particular supplier.”

The state argues it’s a common strategy for anti-death penalty advocates to use.

“They have a simple playbook for stopping executions by lethal injection: identify the supplier of the lethal injection chemicals, apply pressure at one or multiple points in the supply chain to prevent sales to the state, and executions are on hold,” the filing reads.

States are secretive about their suppliers because the drugs are hard to get. Drug manufacturers like Pfizer won’t sell their products for use in executions, so state prison systems have to go underground.

There are two options. States can go to compounding pharmacies — small labs that make unregulated copies of well-known drugs. Or they can buy what critics call “gray market” drugs. These are made in commercial facilities, which means they aren’t black market drugs. But they somehow escape the intense factory-to-patient tracking system overseen by the U.S. Drug Enforcement Agency. When this happens with other drugs like opioids, it’s known as “diversion.” It’s illegal. Tennessee officials have confirmed the pentobarbital used in recent executions was made commercially.

Either way, state officials argue that exposure would make suppliers pull out of a deal with the prison system, preventing it from carrying out a lethal injection.