Texas Department of Criminal Justice v Levin, 17-0552 (Tex. April 12, 2019)
This is a Public Information Act (PIA) case in which the Texas Supreme Court held the PIA must yield to protecting information that, if released, would create a substantial threat of physical harm to the source’s employees and others.
The Levin plaintiffs (Levin) represent capital defendants on death row. Concerned with the possibility of mismanaged executions by lethal injection, Levin made a PIA request of the Department, which included a list of drugs used for lethal injections and their source. The Department did not release the specific identity of the pharmacy or pharmacist that compounded the drugs (i.e., “source”) and requested an Attorney-General opinion. The AG agreed with the Department that the PIA has a common-law exception where release would create a substantial risk of harm. Levin appealed. While on appeal, the Legislature amended the PIA to create a statutory exception for the source of drugs used for executions.
In prior court and AG opinions, a threat to a specific party was required in order to take advantage of the common-law exception. Here, no one but the Department and the pharmacy itself knows the identity of the source that supplies the lethal injection drugs to the State of Texas. There is no evidence of a history of specific threats to that particular pharmacist or pharmacy, because the source’s identity has been kept confidential. The Court noted, however, that the word “substantial” as used in prior opinions does not refer to the degree to which harm is likely to occur, but rather, the degree of the potential threat of harm itself. Courts should focus on the connection between the requested information, on the one hand, and the potential threat and magnitude of such harm, on the other. The Court found, based on the summary judgment evidence, that the Department properly established release of the information potentially would create substantial physical harm which does not currently focus on an identified person, including evidence of what happened to other pharmacies when release of similar information became public. (Note: some but not all of the evidence was considered relevant). As a result, the Department must withhold the information requested.