- Associated Press - Wednesday, January 21, 2015

BOISE, Idaho (AP) - Idaho lawmakers have introduced a bill that would formally expand the secrecy surrounding executions.

The Senate Judiciary and Rules committee agreed Wednesday to move forward the legislation from the Idaho Department of Correction. The bill would incorporate existing department policy on confidential execution records into state law, and broaden that language to include records involving the source of lethal medications used for executions.

It would also make it illegal for the department to turn over the records in response to subpoenas or other preliminary legal inquiries.

Deputy prisons chief Josh Tewalt said the bill was designed to ensure that the identities of both the people involved in carrying out an execution and the source of the drugs used in the lethal injection process are kept confidential.

“We rely on people outside the agency, in the form of consultants and professionals in the medical field, who if participation was known could certainly have an impact in their life, safety and professional ramifications,” Tewalt told the committee. “And to that end, we believe it’s wholly appropriate for the protection of certain confidential information as it relates to them, to reside in Idaho code as well.”

Currently, the Idaho Administrative Procedure Act - commonly called IDAPA by state lawmakers and agency officials - states that some execution records are exempt from disclosure under Idaho’s Public Record law. But the public records law itself doesn’t specifically state what those exemptions are, although it does give the Board of Correction authority to set rules under IDAPA.

The IDAPA rule on releasing execution-related records is fairly broad: “The Department will not disclose (under any circumstance) the identity of the on-site physician; or staff, contractors, consultants, or volunteers serving on escort or medical teams; nor will the Department disclose any other information wherein the disclosure of such information could jeopardize the Department’s ability to carry out an execution.”

The new legislation is phrased largely the same, but would add the phrase, “including the source of any lethal substances, shall be confidential,” and move the whole thing to the state law. The bill would also add an additional sentence to the law, saying that the records would not be easily obtained through the legal process typically used in lawsuits and anti-death penalty cases.

“Notwithstanding any provision of law to the contrary, any such confidential information shall be privileged and shall not be subject to discovery, subpoena or other means of legal compulsion,” the bill reads.

Sen. Cliff Bayer, R-Meridian, asked Tewalt if the language could limit any kind of court proceedings.

Mark Kubinski, the deputy attorney general who represents the Department of Correction, acknowledged that the language was broad, but said a judge would still be able to order the department to turn over the records so they could be viewed privately, in the judges’ chambers or a closed courtroom.

“That last phrase in the statute, what that speaks to is preventing the disclosure of the information to the public,” Kubinski said. “I don’t think that limits the ability of the court to access that information.”

Public access to records detailing states’ supplies of lethal injection drugs has been a point of contention in many death penalty states as the drugs have become increasingly more difficult for corrections departments to obtain.

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