Texas Department of Criminal Justice v. Maurie Levin, Naomi Terr, and Hilary Sheard ( 2015 )

ACCEPTED
03-15-00044-CV
6433766
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/10/2015 5:02:05 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00044-CV
FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
8/10/2015 5:02:05 PM
IN THE COURT OF APPEALS JEFFREY D. KYLE
FOR THE THIRD JUDICIAL DISTRICT Clerk
AT AUSTIN, TEXAS
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Appellant/Defendant,
v.
MAURIE LEVIN, NAOMI TERR, AND HILARY SHEARD,
Appellees/Plaintiffs.
APPELLEE’S BRIEF
MAURIE LEVIN DEATS DURST & OWEN, P.L.L.C.
State Bar No. 00789452 1204 San Antonio Street, Suite 203
211 South Street, Suite 346 Austin, Texas 78701
Philadelphia, PA 19147 (512) 474-6200
(512) 294-1540 (512) 474-7896 (FAX)
(215) 733-9255 (FAX) Philip Durst
maurielevin@gmail.com State Bar No. 06287850
pdurst@ddollaw.com
Manuel Quinto-Pozos
State Bar No. 24070459
mqp@ddollaw.com
COUNSEL FOR APPELLEE
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
APPELLEE/PLAINTIFF TRIAL & APPELLATE COUNSEL
MAURIE LEVIN, NAOMI Philip Durst
TERR AND HILARY SHEARD Manuel Quinto-Pozos
DEATS DURST & OWEN, P.L.L.C.
1204 San Antonio, Suite 203
Austin, Texas 78701
Maurie Levin
Texas Bar No. 00789452
211 South St., #346
Philadelphia, PA 19147
APPELLANTS/DEFENDANTS TRIAL & APPELLATE COUNSEL
TEXAS DEPARTMENT OF Richard B. Farrer/Adam Ashton/ Joseph Hughes
CRIMINAL JUSTICE Nichole Bunker-Henderson/ David Alan Harris
OFFICE OF THE TEXAS ATTORNEY GENERAL
P.O. Box 12548
Austin, Texas 78711-2548
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.....................................................................................iv
STATEMENT OF THE CASE .................................................................................vi
ISSUES PRESENTED............................................................................................ vii
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF ARGUMENT ............................................................................... 11
STANDARD OF REVIEW ..................................................................................... 12
ARGUMENT & AUTHORITIES ........................................................................... 14
I)  THE DISTRICT COURT CORRECTLY DETERMINED THAT TDCJ
DID NOT DISCHARGE ITS HIGH BURDEN TO ESTABLISH A
SUBSTANTIAL THREAT OF PHYSICAL HARM. ..................................... 14
A)  The Supreme Court Set the Burden for Secrecy Very High. ...................... 14
1)  What the Standard Is. .......................................................................... 14
2)  What the STPH standard is not. .......................................................... 15
B)  None of the Three Items That TDCJ Relies Upon Establishes a STPH. .... 18
1)  The comments to the Woodlands Pharmacy website are simply
people expressing their opinions on the death penalty and cannot
be used to create a STPH..................................................................... 18
2)  The clip art on a website from France cannot be used to create a
STPH. .................................................................................................. 20
ii
3)  A Retired College Professor in Ohio’s e-mail to an Oklahoma
Pharmacy that Once Provided LIDs to Missouri Does Not Create
STPH. .................................................................................................. 24
C)  TDCJ’s experts offer nothing beyond their “spin” on the three
documents and thus do not create a STPH.................................................. 26
1)  TDCJ’s Witnesses Do Not Permit a Finding of a “Substantial
Threat of Physical Harm” .................................................................... 27
2)  A Threat Assessment is an Actual Thing, Not an Opinion ................. 31
3)  Giving up the ghost: TDCJ’s expert admits that his opinion does
not really involve any of the documents in the record. ....................... 36
4)  Plaintiffs’ expert provided actual content and context for his
opinion. ................................................................................................ 40
D)  A final word about the 2015 legislative change. ........................................ 43
PRAYER .................................................................................................................. 44
CERTIFICATE OF COMPLIANCE ....................................................................... 46
CERTIFICATE OF SERVICE ................................................................................ 46
iii
INDEX OF AUTHORITIES
Cases
Arkoma Basin Exploration Co. v. FMF Associates, 249 S.W.3d 380 (Tex. 2008)
.............................................................................................................................. 28
Bell v. Lee, 49 S.W.3d 8 (Tex. App.—San Antonio 2001, no pet.) ........................ 13
Broden v. TDCJ, No. D-1-GN-10-004493 (Jan. 10, 2011) ....................................... 3
Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) ......................................................... 28
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) ................................. 29
E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) ........... 27
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)..................................... 29
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) ................................. 13
Texas Department of Public Safety v. Cox Newspapers, L.P., 343 S.W.3d 112
(Tex. 2011) ....................................................................................................passim
Statutes
TEX. GOV’T CODE §552.021..................................................................................... 13
TEX. GOV’T CODE §552.022(a)(3) .......................................................................3, 13
Tex. Gov't. Code §552.022(b).................................................................................. 13
Texas Public Information Act, Tex. Gov’t Code §552.1081 ............................passim
Other Authorities
"Firestorm," Merriam-Webster Dictionary (online ed.): http://www.merriam-
webster.com/dictionary/firestorm (last visited 8/8/15) ........................................ 38
“Justin Bieber causes firestorm after suggesting that Anne Frank would be a
‘Belieber.’” http://www.worldwideweirdnews.com/2013/04/26676.html (last
visited 8/8/15) ....................................................................................................... 39
iv
Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses: Fifteen
Years Later, 52 Hous. L. Rev. 1 (2014) ............................................................... 28
Tex. Op. Att’y Gen. ORD1977-0169 ...................................................................... 14
Texas Attorney General Open Records Letter No. OR2010-17507 .......................... 3
Texas Attorney General Open Records Letter No. OR2012-10208 .......................... 4
v
STATEMENT OF THE CASE
Nature of the Case: This is a Public Information Act (open records)
case in which plaintiffs (three established pro bono
death penalty lawyers) sought information on the
protocols used to execute inmates by TDCJ. TDCJ
refused to produce public information regarding
the supplier of Lethal Injection Drugs (LIDs) by
trying to fit within a narrow exemption in the Act,
which allows a government body to withhold
information if, and only if, it can establish that
releasing this information would cause a
“substantial threat of physical harm.” The issue
is whether TDCJ discharged that high burden with
vague and unspecific concerns about “radical
fanatics” or that suppliers will stop selling these
drugs to TDCJ if their identities are known.
(Statutory material is collected in Appendix 2)
Trial Court: 210st District Court of Travis County (Hon.
Darlene Byrne)
Trial Court’s Disposition: Each side agreed to file cross-motions for
summary judgment. The Court found that, on this
record, TDCJ did not meet its burden to establish a
“substantial threat of physical harm” and granted
plaintiffs’ motion (and denied defendant’s motion).
(CR@2297; Appendix 1). By agreement of the
parties, the trial court severed the remaining issues
on attorney’s fees and costs, making its “merits
determination final and appealable. CR@2305-06.
vi
ISSUES PRESENTED
1. Under the Public Information Act, a government agency may keep
secret and fail to disclose information that it can establish would
create a “substantial threat of physical harm.” The Supreme Court
has established this is a high burden and cannot be discharged with
“vague assertions of risk.” The District Court correctly determined
that TDCJ had not discharged that burden, on this record, with its
general concerns that LID suppliers might not continue to sell to
TDCJ if they got bad publicity or because of possible and speculative
“radical fanatics.”
2. Can TDCJ rely upon the conclusory and unsubstantiated opinions of
its alleged “experts,” when no history or actual violence against a
supplier of Lethal Injection Drugs has ever occurred or been
threatened?
vii
STATEMENT OF FACTS
The Public Information Act Request
Plaintiffs/Appellees are three established pro bono death-penalty attorneys
who requested public information from Texas Department of Criminal Justice
(“TDCJ”) under the Texas Public Information Act (“TPIA”(“TPIA” or “the Act”).
Plaintiffs requested information about: (1) the drug(s) that would be used to carry
out the executions of two of their death-penalty clients; (2) the source of the
drug(s) to be used; and (3) testing conducted on said drugs to ensure potency, and
purity.1
This information is important to these requestors, both in terms of
representing their death-penalty clients and also as members of the public, because
of the recent issues involving the changes in Lethal Injection Drugs (“LIDs”) and
botched executions.
Public Information on Lethal Injection Drugs
As our record shows, the information requested is vitally important because,
in the past few years, Departments of Corrections around the country (including
TDCJ) have changed their method of obtaining LID’s (including the pentobarbital
1
When this case began, the plaintiffs were the three pro bono capital punishment lawyers
(Maurie Levin, Naomi Terr and Hilary Sheard) and two death-row inmates (Ramiro
Hernandez Llanas and Tommy Lynn Sells). CR@5-6. During the pendency of this case,
the two inmates have been executed, leaving the pro bono lawyers as the only
plaintiffs/appellants.
1
that TDCJ uses). TDCJ and other states have decided to obtain these drugs from
(what are known as “compounding pharmacies”), which largely operate outside of
FDA oversight, giving rise to concerns about where the compounded pentobarbital
comes from and how it was prepared. In Texas, and elsewhere, it now takes longer
for the drugs to “work” and there have been a series of botched executions.
CR@754-55. The recently botched executions in Oklahoma, Ohio and Arizona
were carried out with LIDs from new and unreliable sources. CR@755-56. As
such, this information is important to ensure that executions using those drugs will
be carried out in a manner that comports with the Constitution and the awesome
responsibility being carried out (in our name).
The Attorney General’s Ruling(s)
TDCJ denied plaintiffs’ request and sought an opinion from the Attorney
General, arguing that information should be withheld on the basis of the “public
safety” exception to TPIA. The Attorney General eventually issued a letter to
TDCJ stating that some of the information must be released, while some
information (the identity of the supplier or manufacturer of lethal injection drugs)
could be withheld under the “public safety” exception. Interestingly, this was not
the first time the AG’s Office ruled on this issue and this ruling was a bit of an
about-face.
2
Before “our” request in 2014, the Attorney General’s Office has, at least
twice, ruled that the identity of the supplier of LIDs is open and core public
information under TPIA.
In 2010, in a decision involving four requests nearly identical to plaintiffs’,
the Attorney General ruled that TDCJ was required to disclose the information
requested. See OR2010-17507 (attached in Appendix 3).2 Specifically, the
Attorney General determined that TEX. GOV’T CODE §552.022(a)(3) mandated the
release of this information as core public information dealing with public contracts
and expenditures. Moreover, the Attorney General determined there was no
exemption from disclosure because none of the information that TDCJ sought to
withhold pertained to an employee or officer of TDCJ.3
In 2012, TDCJ once again sought an opinion from the Attorney General,
asserting that information about the Department’s execution protocol and LIDs
2
In a previous decision, in 2008, with less factual basis or record, the Attorney General
determined that information regarding the names of companies that provide TDCJ’s
chemicals used during executions could be withheld under the “special circumstances”
doctrine. However, the Attorney General’s subsequent letter rulings have rejected
TDCJ’s efforts to shield the requested information on the basis of the same arguments.
3
Nonetheless, TDCJ continued to refuse to supply the requested information. On
December 29, 2010, the requestor filed a Petition for Writ of Mandamus to compel
compliance with the Attorney General’s Order. On January 10, 2011, after hearing
argument, the 261st Judicial District Court, Travis County, issued an Order granting
Broden’s Petition, and ordering TDCJ to disclose the requested information. See Broden
v. TDCJ, No. D-1-GN-10-004493 (Jan. 10, 2011).). See Appendix 3.
3
was exempt from disclosure. The Attorney General once again rejected that
assertion in Open Records Letter No. OR2012-10208; CR@43-47. Appendix 3.
This 2012 decision is especially significant because TDCJ’s argument for
secrecy was rejected, even under the new “substantial threat of physical harm”
exemption articulated by the Texas Supreme Court in Texas Department of Public
Safety v. Cox Newspapers, L.P., 343 S.W.3d 112 (Tex. 2011). In OR2012-10208
the Attorney General found that disclosure of this core public information could
not be withheld by claiming that there was a “substantial threat of physical
harm,” under Cox. The AG ruled that TDCJ could not establish that “disclosure
of the information at issue would create a substantial threat of physical harm to
any individual.” That AG Opinion also rejected TDCJ’s claim that the information
should be secret under the “law-enforcement” exception. The AG held that
TDCJ’s argument that disclosure would disrupt the operations of the suppliers or
otherwise interfere with law enforcement was “too speculative.”
The fact that the AG’s Office, in 2014, “pulled a 180” is important to this
appeal for two main factual reasons. First, the record in our case shows (because
the identity of the supplier has always been open until now) that there has never
been any violence, threat or physical harm against any supplier of LIDs in Texas
(or the US, or the world, for that matter). CR@626-27; 636, ¶26. Second, the
4
record shows that the AG’s office flipped its decision based upon a letter from
TDCJ and DPS, and with little new information. CR@550-54.
TDCJ’s Previous Supplier: The Woodlands Compounding Pharmacy
Since Texas and many other states have made the identity of its LID
suppliers known, there is much information in the record demonstrating that
TDCJ’s alleged claim of imminent violence is far-fetched: There is evidence in the
record that pertains to the previous supplier of pentobarbital to TDCJ: The
Woodlands Pharmacy. Because LID supplier information has been public in
Texas, in or about October 2013, TDCJ disclosed that its supplier of pentobarbital
was The Woodlands Compounding Pharmacy (“Woodlands”). According to The
Woodlands Pharmacy, it had been promised by TDCJ that it would supply LIDs
only if its identity were kept “on the down low” (yes, that is the pharmacy’s actual
wording). CR@1098. Once its identity became public, The Woodlands Pharmacy
decided that it did not want to supply these drugs anymore to TDCJ. CR@17.
What is critical for our appeal (as this is the only empirical evidence in our
record) is why the Woodlands decided it wanted to discontinue supplying: The
Woodlands wrote to TDCJ that its decision had nothing to do with any threat or
violence, but rather because it was getting criticized by its customers on its website
and feared that its business would decline. CR@1097-98. Our record shows that
some customers and community members wrote negative Google reviews of the
5
Woodlands Pharmacy on the pharmacy’s website. A number of commenters voiced
their opinion that such commerce was contrary to a pharmacist’s pledge to save
lives and preserve health. CR@1295-304. In addition to the risk of public
opprobrium, the Woodlands said it was also withdrawing because it did not want to
be part of a lawsuit over the use of its drugs by TDCJ. CR@1098. Again, the letter
from the owner of the Woodlands to TDCJ never mentioned violence or threats of
violence against him, his business or his employees.4
Again, in terms of the only empirical evidence in our record, there is no
evidence that once the Woodlands’ identity became public that there was ever any
physical harm or any risk of physical harm (substantial or otherwise) against the
pharmacy (or any previous supplier, for that matter), even though its address and
the identities of its owner and employees were publicly accessible via internet
searches. There is also no evidence in the record that any violence or threats
occurred during an October 9, 2013, vigil.
The procedural posture of this case and the summary judgment proof
This appeal is before this Court based upon the parties cross-motions for
summary judgment (the parties agreed that there were no contested fact issues and
4
A peaceful protest did occur outside the Woodlands Compounding Pharmacy on
October 9, 2013. Montgomery County Sheriff’s Officers were sent to observe the protest.
Four officers were initially dispatched. One officer left the scene one minute after
arriving. The demonstration at Woodlands ended after forty-five minutes. CR@1110,
1112.
6
that the merits of this case could be decided by summary judgment). Although this
case previously passed through this Court when plaintiffs obtained a Temporary
Restraining Order, those issues were resolved (as moot) by the Texas Supreme
Court after the death-row inmates had exhausted their finals stays and were
executed.
As the Court can see from TDCJ’s briefing, the summary judgment proof
(submitted by both sides) involves three key events that TDCJ bases its argument
that the information about a supplier will now create a substantial threat of physical
harm:
1) The comments made on the Woodlands Pharmacy website
2) The clip-art used on a French internet site about capital punishment; and
3) A Retired College Professor’s E-mail to a pharmacy in Oklahoma that
reportedly supplied LIDs to the state of Missouri.
Each side called an outside expert to opine on these three events: Plaintiffs retained
and submitted summary judgment proof in the form of an affidavit and deposition
testimony from a retired FBI agent with over twenty years’ experience and who
now provides private consulting services involving corporate security; and
defendants retained a former secret service agent who now provides private
consulting services involving corporate security. Although the differences in their
opinions and testimony will be fleshed out in the argument section of this brief, a
few words about the facts involving plaintiffs’ retained expert, Mr. Thomas Parker,
are in order.
7
Plaintiffs’ Expert: Mr. Thomas Parker
Mr. Parker retired from the Federal Bureau of Investigation in 1994 after 24
years of service in that law enforcement agency. CR@807. As an FBI agent, Mr.
Parker was involved and managed “some of the FBI’s largest investigations and
received in excess of twenty commendations from the FBI Director for valor,
investigative achievements, and managerial excellence.” Id. At the time of his
retirement from the FBI, Mr. Parker was the Assistant Special Agent in Charge of
the FBI’s second largest field office in Los Angeles, California. Id. Following his
retirement from the FBI, Mr. Parker has spent over 20 years working as an
investigator serving a number of corporate and government clients in issues of
personal and corporate security, police practices, management and operation of
corrections facilities, and others. Id at 807-08. Mr. Parker has authored a number of
publications and book chapters on law enforcement practices, criminal justice and
forensic science. Id. at 808.
Both during and after his career as an FBI agent, Mr. Parker has conducted a
number of threat assessments to determine the risk of violence in different settings,
such as: situations involving hostages, anti-government militants, a suspected
satanic child sexual abuse cult, sniper shootings and terrorist attacks. Id. at 811-12.
He has served as an expert witness in state and federal cases involving law
enforcement practices, management of correctional facilities and political asylum
8
claims involving asylum claimants’ fear of persecution in other countries. Id. at
813. He has been appointed to two different local government commissions on law
enforcement and juvenile justice, serving as the Vice-Chair of one and as the
Chairman of the other. Id. at 813-14.
In this case, Mr. Parker concluded that, absent further investigation, there
was insufficient information to conclude that there was a substantial threat of
physical harm if the information was released. CR@804. In addition, he explained
why the TDCJ position was nothing but fanciful speculation and a “vague assertion
of risk.” CR@805.
Mr. Parker’s professional opinions, based upon decades of education,
training and experience, as well as on threat assessment protocols, is that the
documents upon which TDCJ and DPS rely do not contain “any discernible direct
threats” or “any readily identifiable targeted threats against any pharmacies or
individuals connected to them or to the TDCJ.” CR@790, ¶14(A). Mr. Parker
concludes that the messages and reviews about the Woodlands Pharmacy amount
to “criticisms” of the pharmacy. Id. ¶14(C).
With regard to the French blog, Mr. Parker similarly fails to find that any
wording “could be loosely interpreted as threatening to the subject pharmacies or
to anyone else.” Id. at 793, ¶16. Specifically with regard to the “exploding head”
clip-art, Mr. Parker concluded that it is readily available on the internet and that he
9
is “unable to find any connection between the ‘exploding head’ art in the article to
any of the article’s contents nor to any individual or business entity.” Id. at 792,
¶15.
Mr. Parker’s opinion also walks-through the email from the retired college
professor to show that this e-mail was sent by someone who has no criminal
background, is a retired academic, did not actually make any threats, and was
posted by someone who listed his full/real name, e-mail address and telephone
number. CR@793-94, ¶¶17-18. Mr. Parker also testified that, contrary to TDCJ’s
claims, no true “threat assessment” was ever performed by TDCJ. Id. at 804. After
noting that there was no indication that either TDCJ or DPS conducted any
research into the authors of any of the e-mails that TDCJ relies upon, Mr. Parker
reported his own research into two of the authors, noting that none has a “readily
identifiable criminal record or suspect affiliations with any radical anti-death
penalty or terrorist groups.” Id. at 793, ¶17.
In concluding his report and opinions, Mr. Parker stated that Mr. McCraw
did not have sufficient information to perform a proper threat assessment, did not
undertake steps to obtain any investigation, and did not follow any protocols prior
to issuing his purported threat assessment. Id. at 804, ¶¶27(A)-(C). Additionally,
Mr. Parker concludes that TDCJ was relying only on “vague assertions of risk” and
that no “substantial threat of physical harm” was shown. Id. at 805, ¶28.
10
The 2015 amendment regarding secrecy of LID providers
After plaintiffs won at the trial court, and while this appeal has been
pending, the Texas Legislature enacted S.B. 1697, creating new exception to the
Public Information Act (Tex. Gov’t Code §552.1081) and making secret the
identity of “any person or entity” that provides LIDs to TDCJ. This is a new
blanket exemption and now no longer requires a showing of any kind of risk of
violence by TDCJ; it simply makes the information “exempted from disclosure” to
ensure that suppliers are more willing to provide LIDs to Texas. Id. The bill is not
retroactive and only governs “a request for information that is received by a
governmental body . . . on or after the effective date of this Act [September 1,
2015].” Id. Thus, in strict legal terms, this new law does not govern our appeal.
On a more practical level, the impact of the new amendment is discussed in §I.E.
SUMMARY OF ARGUMENT
The Texas Supreme Court has established that certain public information
may be kept secret under the Texas Public Information Act, if the government can
establish (it bears the burden of proof) that release of the information will cause a
“substantial threat of physical harm.” This burden may not be discharged with
“vague assertions of risk” or concerns that do not involve actual violence to
persons.
11
Our record shows that there has never been any violence in Texas, any state
in the U.S., or anywhere in the world, against a supplier of Lethal Injection Drugs
or any actual threat of violence (even when states obtained LIDs from European
suppliers). This is particularly so in Texas where the identity of LID suppliers has
always been public, as well as in other death penalty states. But, there have been
LID suppliers who stopped selling these drugs when their identities were disclosed
and who feared public opprobrium or consumer boycotts. TDCJ became
concerned about its supply chain when its previous supplier backed out, not
because of violence but because of negative reviews on its website (when its
identity became known). TDCJ then decided to withhold this (previously
determined) public information on the ground that there could be “radical fanatics”
(Appellant’s Brief at 41) in the world who might act violently, sometime in the
future.
The key issue in this appeal is whether TDCJ, on this record, has discharged
its high burden to establish a STPH. The District Court correctly held it did not.
STANDARD OF REVIEW
Because this is an appeal from cross-motions for summary judgment, the
standard of review is de novo. Bell v. Lee, 49 S.W.3d 8, 9 (Tex. App.—San
12
Antonio 2001, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548-49 (Tex. 1985)).
Because this is a suit under TPIA, there is a presumption that “public
information is available to the public.” TEX. GOV’T CODE §552.021.
Under TPIA, “core public information” is “information in an account,
voucher, or contract relating to the receipt or expenditure of public or other funds
by a governmental body.” §552.022(a)(3). Our request plainly falls within this
section, unless exempted by some other provision of TPIA. In this case, TDCJ
invokes §552.022(b) which allows government agency to withhold information if
“the category of information is expressly made confidential under other law.” TEX.
GOV’T CODE §552.022(b). The “other law” that TDCJ relies upon is the
“substantial threat of physical harm” exception articulated by the Texas
Supreme Court in Texas Department of Public Safety v. Cox Texas Newspapers,
L.P., 343 S.W.3d 112, 116 (Tex. 2011) (all emphasis in quotations added, unless
otherwise noted). All parties agree that TDCJ bears the burden of proof in
showing that the public information plaintiffs requested is covered by the
“substantial threat of physical harm” exception. Id. at 116.
13
ARGUMENT & AUTHORITIES
I) THE DISTRICT COURT CORRECTLY DETERMINED THAT TDCJ
DID NOT DISCHARGE ITS HIGH BURDEN TO ESTABLISH A
SUBSTANTIAL THREAT OF PHYSICAL HARM.
One benefit of being an intermediate court (or a litigant) is that we are all
bound by a specific legal standard and here the Texas Supreme Court intentionally
set that burden quite high. As such, this Court (as it well knows) is not simply
deciding who it “likes better,” but rather is applying a specific legal test.
A) The Supreme Court Set the Burden for Secrecy Very High.
1) What the Standard Is.
In Cox , the Texas Supreme Court held that the common-law right to be free
from physical harm may except certain documents from disclosure under TPIA. In
Cox, two newspapers submitted requests under the Act to the Texas Department of
Public Safety (“DPS”) for travel vouchers for the governor’s security detail. Cox,
343 S.W.3d at 113.
In recognizing a “physical harm” exception to TPIA under the common law,
the Court recognized a “‘very narrow set of situations in which release of the
information’ would cause someone to face ‘an imminent threat of physical
danger.’” Id. at 117-18 (quoting TEX. OP. ATT’Y GEN. ORD1977-0169, at 6). The
Court then created the legal standard that governs our appeal: The need for
14
secrecy “must be ‘more than a desire for privacy or a generalized fear of
harassment or retribution.’” Id. Here is the holding:
disclosure of some of the information in the vouchers may create a
substantial threat of physical harm because it reveals specific
details about the number of officers assigned to protect the governor,
their general location in relation to him, and their dates of travel.
Indeed, the vouchers divulge the number of officers the DPS deemed
necessary for the governor’s security, the specific location (hotel and
room number) where the officers resided when providing that
security, and the identity of each officer the Department assigned to
the governor’s protection.
Id. at 118-19. Furthermore, the Court believed that such information about past
security arrangements could be used to predict future arrangements and to “inflict
future harm.” Id. at 119. The Court also explained “A certain amount of deference
must be afforded DPS officers and other law enforcement experts about the
probability of harm, although vague assertions of risk will not carry the day. But
the public’s right to “complete information” must yield when disclosure of that
information would substantially threaten physical harm.” Id.
All this bold font helps illustrate what the test is and what it is not. The
Supreme Court could not be clearer that the government must show that there
disclosure will create a “substantial threat of physical harm” which we shall
abbreviate in this brief as “STPH.”
2) What the STPH standard is not.
15
The Supreme Court’s precise formulation of the standard is intentionally
high because we are dealing with an exception to core public information. In
selecting this precise formulation, it is important to momentarily consider what the
standard is not. The Supreme Court did not select a standard that permits secrecy
based upon any of the following:
! A possible threat of physical harm
! A conceivable threat of physical harm
! Substantial Threat of Public Protest
! Substantial Threat of Opprobrium, Criticism, “Hate-mail,” Boycotts,
Picketing, etc.
! Substantial Threat of Lost Business
! Sometime, somewhere, in another state or country, possibly much in the
future, there could be threats of violence related to the supplier of Lethal
Injection Drugs,
! Not even: Substantial Threat of Property Damage.
As we discuss below, TDCJ is able to convincingly argue (and so did the
legislature in 2015) that information about the supplier of LIDs should be kept
confidential, because there may be some protests or public-opposition and that a
supplier would be more inclined to keep supplying LIDs if its identity is kept
secret. But, that is not what the Supreme Court articulated in Cox: There must be
an actual, substantial threat of physical harm and not a vague or general impression
that the supplier would be better off (from public protest) if its identity was
concealed.
There Has No Showing of Violence In Texas or Anywhere, Ever.
16
Although one would never know it from TDCJ’s brief, the record does
contain actual information about whether there has ever been a STPH regarding
lethal injection drugs, in Texas, in the U.S., or on earth. Our record plainly shows
that even TDCJ recognizes that there has never been any violence (or threat of
violence) against a LID supplier in Texas, even when that information was known
for many years. Livingston Deposition at pp.63, 67, 97; CR @1373-74, 1377-78;
1408. In addition, TDCJ concedes that there has never been any violence against a
LID supplier in any state in the US (or the world). CR@2117. That is, of course,
the case when at least twelve states make such information open and another nine
do not have any specific law making such information secret (out of the
approximately 31 states that have the death penalty).
And, as stated above, TDCJ’s previous supplier mentioned nothing about
violence and only stated that it no longer wished to sell to TDCJ because it was
concerned about bad press and publicity. See Livingston Depo. at 30; CR@1341.
Similarly, no other previous supplier of the LIDs has expressed concern over
violence or their physical safety. Livingston Depo. at 97; CR@1408.
This is critical because, in Cox, the Supreme Court specifically ruled that the
STPH must be based upon some past conduct that legitimately leads to the
conclusion of an actual substantial threat of actual physical harm. Here, there is no
proof oy any actual past violence or even threat of violence. In Cox, the state had
17
detailed evidence about assassinations of public officials and specific plots to hurt
the governor and how the travel information would further those kinds of plots. In
fact, plaintiffs have put all of the Cox summary judgment record in the record in
our case, so the Court can see how much more detailed the summary judgment
proof was in Cox to establish a STPH. CR@1979-2039.
B) None of the Three Items That TDCJ Relies Upon Establishes a
STPH.
TDCJ, aside from its vague assertions that the world is a scary place, has
only three actual events upon which it bases its “conclusion” that releasing the
information about a supplier will now create a STPH (where none existed in the
past):
1) Comments made on The Woodlands Pharmacy website (collected in
Appendix 4)
2) A French internet site about capital punishment (Appendix 5); and
3) A retired college professor’s e-mail to a pharmacy in Oklahoma that
supplied LIDs to the state of Missouri (Appendix 6).
Each will be discussed in turn.
1) The comments to the Woodlands Pharmacy website are simply people
expressing their opinions on the death penalty and cannot be used to
create a STPH.
The comments that customers, or others, posted on the Woodlands
Pharmacy website prove that there is no STPH, as they are simply people
espousing their opinions on the death penalty (or their dislike of the notion that a
pharmacist would supply those drugs only when he is promised anonymity).
18
Appendix 4. Although TDCJ (via its Director, Mr. Livingson) claimed that these
show something sinister, both DPS and TDCJ’s own expert (Cunningham)
establish that these are simply people expressing their views on the internet
without any threat of violence. DPS Director Mr. McCraw acknowledged that he
“[did]n’t see much into” those comments, that he “didn’t see anything that – this
doesn’t bother [him],” and that it was “just one of many people that are
complaining.” Deposition of S. McCraw at 37:14-38:5; CR@1245-46. Mr.
McCraw confirmed that nothing in the customer emails and Google Reviews of the
Woodlands Compounding Pharmacy was of concern to him, and that they “are just
– all this does is – individuals weren’t happy with – I didn’t see any specific threats
in there” and that the authors “have a right to express their opinions.” Id. at 39:11-
24; CR@1247.
Even TDCJ’s ultra-vigilant/paranoid “expert,” Mr. Cunningham (more on
him later) conceded that the emails and Google Reviews of the Woodlands
Compounding Pharmacy did not suggest that violence was likely: Mr. Cunningham
conceded that a small pharmacy could conclude, on the basis of those messages,
that it would not provide lethal injection drugs to TDCJ to avoid garden-variety
19
inconvenience.5 Deposition of L. Cunningham at 168:14-170:14; CR@1627-29.
Finally, Mr. Livingston agreed that the communication from the Woodlands
Compounding Pharmacy owner to TDCJ did not mention violence or concerns for
physical safety, when it decided to stop selling LIDs to TDCJ. Deposition of B.
Livingston at 30:10-25; 66:24-67:15; CR@1341; 1377-78.6 TDCJ’s experts
admitted that a key concern was that “compounding pharmacies typically stop
producing execution drugs after being publicly identified as a supplier.”
Appellant’s Brief at 46.
2) The clip art on a website from France cannot be used to create a
STPH.
The second thing that TDCJ tries to seize-upon is a website maintained by a
lady in France who is opposed to capital punishment and wrote a blog post about,
in her opinion, the hypocrisy of a pharmacist only agreeing to supply LIDs if he
was promised anonymity. The blog is called “The Pentobarbital Experiment” and
is operated by Ms. Sandrine Ageorges-Skinner, a death penalty opponent living in
France. On October 6, 2013, following the disclosure that the Woodlands
Pharmacy was going to stop selling LIDs once its identity was disclosed, Ms.
5
Mr. Cunningham conceded that on their face, no messages that the Woodlands
Compounding Pharmacy received were threats. Deposition of L. Cunningham at 136:11-
137:5; 190:18-192:13; CR@1595-96; 1649-51.
6
Please also keep in mind that TDCJ and the Montgomery County Sheriff’s Office
spent time monitoring the pharmacy and a protest outside it and reported no violence or
risk of violence. CR@1110 & 1112.
20
Ageorges-Skinner published a blog entry taking issue with the Woodlands’
decision. The blog criticized Woodlands as “[t]he Pharmacist who approves the
business of killing, but only under the veil of secrecy.”
Again, all of the experts involved in this case agree that as far as the text of
the blog goes, there is nothing violent or even suggestive of violence (just someone
spouting off about an important public issue that they feel passionately about).
So, if it is not the words, then what does TDCJ seize upon? The blog
contains a clip-art picture of a sculpture (or possibly a cartoon of a sculpture) of a
torso with its hands raised toward its head. The head and one hand are depicted as
shattering to pieces. The blog’s author obtained the image for use on the blog via
an internet search. In the blog post, the author calls readers to take action in the
following ways: writing a negative review for Woodlands on its Google page,
complain to the American Pharmacist Association about LIDs, or signing a
petition. The blog does not mention violence or threats.
So, no one claims that the text or post is any way objectionable, or that it
contains any objectionable comments. But, TDCJ claims that the selection of the
clip art (from the trove of images available on google images) establishes a
substantial likelihood that violence will actually occur. Even though DPS Director
McCraw considered the text harmless, TDCJ claims that the image on the blog can
be interpreted (by it) only as represent violence and a call for explosions.
21
Deposition of S. McCraw at 37:23-38:5; CR@1245-46; Deposition of B.
Livingston at 73:14-74:14; CR@1384-85.
There are two quick ways (not counting common sense) to demonstrate that
this clip art does not rise to the level of anything, much less a finding of a
substantial threat of physical harm.
First, if this selection of clip art truly made anyone think that violence was
likely, then you would think that someone would have investigated the author or
the website. But, of course, no one did. TDCJ and Col. McCraw simply decided
that they could use this clip art to stake their claim that violence is likely. But,
there is no evidence in the record that TDCJ, its agents, its experts or any state or
law enforcement or intelligence agency ever tried to contact the blog’s author.
That is something that you would think someone would do if they truly believed
that this author or website was likely to lead to violence.
But, that is not to say it wasn’t done by someone. The plaintiffs’ expert
(former FBI agent and expert on terrorism and violent crimes, Mr. Thomas Parker)
did look into this website and author and established that “the simplest commercial
database investigation” shows that the author of the Pentobarbital Experiment blog
did not have any affiliations with radical groups and has no criminal record (not to
mention, lives in France). CR@792, ¶15; CR@793, ¶17.
22
Second, the person who was the most concerned about this image was
TDCJ’s hired expert, Mr. Cunningham. If the Court can remember how Sergeant
Joe Friday on the 1960’s TV show, Dragnet, used to feel about hippies, long hair
or anyone who wore sandals, then that is about how Mr. Cunningham feels about
hippies, long hair or anyone who wants to protest anything.
What does TDCJ and its expert find objectionable? To TDCJ, almost any
image would support his claim of a STPH: Mr. Livingston testified that a number
of other images would have given him the same concern, including a picture of the
Woodlands Compounding Pharmacy, a picture of a death-row inmate strapped to a
gurney, and even a poison symbol (skull-and-crossbones image). Deposition of B.
Livingston at 76:21-77:16; CR@1387-88.
TDCJ’s hired expert opined that almost any symbol would have a sinister
connotation: Mr. Cunningham would also have considered a poison or pirate
(skull-and-crossbones) illustration as evidence of a substantial likelihood of
physical harm. To further show how “out there” his opinion is, and how it proves
too much (or sees violence with every hippie or sandal), Mr. Cunningham testified
that if this blog came from an entity named “TorchStone Solutions” (the name of
the entity for which Mr. Cunningham works), instead of The Pentobarbital
Experiment, he would also find that sinister, because of the connotation of fire and
arson. Deposition of L. Cunningham at 195; CR@1654.
23
3) A Retired College Professor in Ohio’s e-mail to an Oklahoma
Pharmacy that Once Provided LIDs to Missouri Does Not Create
STPH.
The only other actual piece of evidence that TDCJ relies upon is an e-mail
that “took place” far away from Texas and, in no way, involves Texas (and does
not involve violence, either). Appendix 6. Once we discuss this third and final
piece of “hard evidence” we are done with any fact or event that supports TDCJ’s
allegation of STPH.
In January 2014 (in a news story that has nothing to do with Texas), the
media reported that a pharmacy in Oklahoma (Tulsa Apothecary Shoppe) was
selling pentobarbital to the state of Missouri for use in its executions.
So, then, on January 29, 2014, Mr. Nick Humez, a retired college professor,
writer and artist (we do not know if he wears sandals), sent an email to the Tulsa
Apothecary Shoppe, via its website, referencing the media’s coverage of the issue.
Prof. Humez questioned the morality of providing execution drugs to Missouri.
CR@1305. Professor Humez expressed his opinion that the Apothecary could be
drawing unwanted attention, including that of a hypothetical “fanatic with a
truckload of fertilizer.” Prof. Humez included his real name, telephone number and
personal email address in his e-mail to the Apothecary. CR@1305. His e-mail
does not threaten any violence by him, nor did he say that he was aware of anyone
with an intention or a plan to do so.
24
Of course, as stated above, no act of violence was ever committed against
the Tulsa Apothecary Shoppe, or any LID supplier, in Oklahoma, Texas, or
anywhere. Nor have any protests against such suppliers ever turned violent or led
to any arrests (none shown in our record).
But, to TDCJ, this e-mail is “proof” that actual violence is imminent because
of the professor’s hyperbolic words. But, again, if this were such a credible threat:
why did the writer give his correct name, address and phone number? And, if it
was serious, why did no one actually investigate this guy until he became an issue
in this suit? Of course, as our expert testified, the fact that this guy used his real
name-email-phone, made it even more “unlikely that he intended to commit any
violence himself.” Parker Aff @ 9, ¶17; CR@793.
Our record shows that no state or federal law enforcement or intelligence
entity investigated Prof. Humez or his e-mail until over two months later. On April
8, 2014 (i.e., weeks after Appellees submitted its Public Information Act request to
TDCJ), two FBI agents came to interview Prof. Humez in response to a request by
the Attorney General of Oklahoma and then left him alone. There is no evidence in
the record that suggests that the FBI interviewed Prof. Humez more than once,
arrested him or considered him a risk. Neither TDCJ nor any Texas law
enforcement or intelligence agency appears to have ever contacted Professor
Humez in forming its opinion that he was a real risk.
25
One reason no one from Texas may have contacted him was because Mr.
McCraw admitted that he did not view the e-mail to Apothecary Tulsa as a
“terrorist threat.” Deposition of S. McCraw at 44:9-45:6; CR@1252-53.7 DPS’
McCraw also testified that Humez’s e-mail message could simply be someone
“blowing off steam.” Id. at 51:21-25; CR@1259.
C) TDCJ’s experts offer nothing beyond their “spin” on the three
documents and thus do not create a STPH.
Both sides can agree on two things: (1) There has never been any kind of
violence, in any state, regarding LIDs or their suppliers (or any protest that had the
potential of turning violent); and (2) The universe of data points upon which a
credible STPH can be constructed rest solely on the three documents introduced
into evidence (Woodlands Pharmacy e-mails; Pentobarbital website; Prof. Humez
e-mail).
But, since that evidence is so anemic, TDCJ has tried to dress up their
opinion by the testimony of two persons its presents as experts (DPS Director
McCraw and its retired secret service agent, Mr. Lawrence Cunningham) to horror-
show these documents for us. Director McCraw and TDCJ’s paid expert submitted
testimony that while these documents may not seem like much, we should “trust
7
In fact, Mr. McCraw stated that none of the materials he received from Mr. Livingston
and reviewed fit under the description of a terrorism threat. Deposition of S. McCraw at
44:23-45:6; CR @1252-53.
26
them” because they are experts. To each of these experts, they know more about
how scary the world is and we just need to shut up and trust them to know better.8
There are three main reasons why these expert opinions are not sufficient to
create a true substantial threat of physical harm based upon the actual evidence
before them. We discuss each in turn.
1) TDCJ’s Witnesses Do Not Permit a Finding of a “Substantial Threat of
Physical Harm”
As this Court knows, when we are dealing with expert witnesses, we begin
with the six non-exclusive factors to analyze the value of such testimony:
(1) the extent to which the theory has been or can be tested;
(2) the extent to which the technique relies upon the subjective interpretation of
the expert;
(3) whether the theory has been subjected to peer review and/or publication;
(4) the technique’s potential rate of error;
(5) whether the underlying theory or technique has been generally accepted as
valid by the relevant scientific community; and
(6) the non-judicial uses which have been made of the theory or technique.
E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995).
Since, in this case, we are not dealing with experts offering scientific or
mathematical testimony that is objective or can be tested, the Courts have
recognized that there are several pitfalls when considering such subjective
8
Of course, the entire history of censorship (from the banning of James Joyce’s Ulysses
to pamphlets protesting World War I) is all based upon the idea that some “expert”
believes that the public would make bad decisions if given information and that we
should “trust them” because they know better.
27
opinions. As Justice Harvey Brown (and Melissa Davis) put it in their recent and
exhaustive commentary on the state of expert-witness review by appellate courts,
the following flaws render an expert’s testimony inadmissible or unreliable:
The Texas Supreme Court treats expert testimony as conclusory or
speculative, such that no objection is necessary to preserve error,
when (1) the expert fails to provide any explanation or predicate for
her opinion; (2) the explanation the expert provides for her opinion
suffers from too great an “analytical gap”; (3) the explanation is
predicated on facts, data, or assumptions that do not actually support
the expert’s explanation or that are not supported by the evidence; (4)
the expert’s explanation is at such a general level that it offers no
meaningful information to the jury to enable it to review the reliability
of the opinion; and (5) in the context of causation opinions, the expert
fails to rule out other plausible causes or explain why the theory of
causation adopted by the expert is superior to other plausible theories
of causation.
Harvey Brown & Melissa Davis, Eight Gates for Expert Witnesses: Fifteen Years
Later, 52 HOUS. L. REV. 1, 67-68 (2014). In this case, the first four factors are
especially important.
In the words of the Texas Supreme Court “conclusory statements made by
an expert witness are insufficient to support summary judgment.” Burrow v. Arce,
997 S.W.2d 229, 235 (Tex. 1999). Expert opinion may not be relied on when it is a
subjective opinion, without any basis for testing, and is simply the expert’s
“conclusion without any explanation” Arkoma Basin Exploration Co. v. FMF
Associates, 249 S.W.3d 380, 389 (Tex. 2008). To pretend that we know some
Latin, expert testimony may not be based upon an ipse dixit pronouncement: “he
28
himself said it.” As the U.S. Supreme Court has explained, “nothing in either
Daubert or the Federal Rules of Evidence requires a district court to admit opinion
evidence that is connected to existing data only by the ipse dixit of the expert.”
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 157 (1999); City of San
Antonio v. Pollock, 284 S.W.3d 809, 822-23 (Tex. 2009) (same).
In this case, that is precisely what DPS Director McCraw and Mr.
Cunningham are doing: inveighing that their views (for reasons that we discuss
below) need to be trusted because they are experts: while they may not be able to
show their work or explain their logical leaps their opinion must trump all facts
and other opinions.
With all due respect to DPS Director McCraw, he comes to this case in a
manner that undermines his allegedly expert, and highly subjective, opinion: He
received a phone call from TDCJ Director Livingston asking for a letter to submit
to the court stating that the name of the LID supplier should not be revealed and he
readily complied. Here’s how that all went down:
In early March 2014, knowing that its supply of pentobarbital was about to
dry up because The Woodlands would not provide additional drugs, TDCJ’s
Director (Mr. Brad Livingston) called DPS Director McCraw. In order to justify
the withholding of the name and location of the supplier of Defendant’s lethal
injection drugs, Mr. Livingston requested a letter to support their non-disclosure so
29
TDCJ could purchase more LIDs. In a sense, it was like asking for a blurb for the
dust-jacket of your book from a friend (“Can you please say this is ‘the must-read
book of the summer?’ Thanks, man”). Exhibit 9 to B. Livingston’s Deposition at
1; CR@1455.
Mr. McCraw’s letter, dated March 7, 2014, reviewed the same three
documents we have been discussing (Woodlands e-mails, Pentobarbital Website,
and Humez e-mail). Director McGraw is candid that he reviewed no other
documents or evidence in forming his opinion. And, so, to help out the prison
system he wrote a letter concluding that “some of the threats made to the
Woodlands Compounding Pharmacy that we identified should be taken seriously
. . . .” Exhibit 2 to S. McCraw’s Deposition; CR@1291. This last phrase is telling
because it says so little: One would expect that law enforcement would think that
any bit of information “should be taken seriously.” But, whether that means it is
an actual threat, of course, is another matter.9
By way of corroboration, TDCJ’s Livingston testified that he is not aware of
additional documents that support the argument that making the name of the lethal
9
By way of example, our record shows the (true) example of the Secret Service
discovering a Facebook message, shortly after Osama Bin Laden was killed, saying
something like “I hope President Obama has beefed up security so he can be protected if
anyone comes after him.” CR@2066; Depo. of B. Livingston at 88:24-91:12; CR@1399-
402-. That is a piece of intelligence that “should be taken seriously,” of course. It turns
out that was a post from a middle-school child who was expressing his concern that no
one try and hurt President Obama. It was a message that, with some minimal
investigation, was not a STPH.
30
injection drug public could lead to a substantial risk of violence. Deposition of B.
Livingston at 59:13-20; CR@1370.
2) A Threat Assessment is an Actual Thing, Not an Opinion
For all the bantering-about of the phrase “threat assessment,” the record
shows that this is an actual thing and something that was never done by either of
TDCJ’s experts. To analyze this, we must first begin with what a “threat
assessment” is in law enforcement parlance. And for that we need expert
testimony of plaintiffs’ expert, retired FBI Special Agent and security consultant,
Mr. Thomas Parker.
A quick word on who this guy is: Mr. Parker retired from the Federal
Bureau of Investigation in 1994 after 24 years of service in that law enforcement
agency. CR@807. As an FBI agent, Mr. Parker was involved and managed “some
of the FBI’s largest investigations and received in excess of twenty commendations
from the FBI Director for valor, investigative achievements, and managerial
excellence.” Id. At the time of his retirement from the FBI, Mr. Parker was the
Assistant Special Agent in Charge of the FBI’s second largest field office in Los
Angeles, California. Id. Following his retirement from the FBI, Mr. Parker has
spent over twenty years working as an investigator serving a number of corporate
and government clients in issues of personal and corporate security, police
practices, management and operation of corrections facilities, and others. Id. at
31
807-08. Mr. Parker has authored a number of publications and book chapters on
law enforcement practices, criminal justice and forensic science. Id. at 808.
Part of Mr. Parker’s testimony in this case deals with what a threat
assessment is (and is not). On this point, Mr. Parker’s qualifications and
experience, both during and after his career as an FBI agent, include conducting a
number of threat assessments to determine the risk of violence in different settings,
such as: situations involving hostages, anti-government militants, a suspected
satanic child sexual abuse cult, sniper shootings and terrorist attacks. CR@811-12.
A “threat assessment” is an investigation (meaning an actual field
investigation or the use of actual detective work) to determine if a threat made to a
person is a viable threat. This means the doing of actual “police work” in
determining if a threat (“I hate the Governor”) is something that involves an actual
risk of violence or harm. How does a law enforcement professional do that? Mr.
Parker’s testimony is that a threat assessment (as when he performed them for the
FBI or when he does so for a corporate client, now) includes investigation into any
author(s) of a threat, including the person’s identity; location; access and
relationship to the target; capabilities; criminal, medical and employment
background. Affid. of T. Parker at 18-20, ¶¶B(6)-(C)(4); CR@802. Mr. Parker also
believes that the person should be spoken to and/or if done by law enforcement
they should also “seriously consider confronting and interviewing the perpetrator.”
32
Id. at 20, ¶D(9); CR@804. In other words, a threat assessment involves actual
police work, which is not anything that DPS, TDCJ, its experts ever did.
What appellant has done is more akin to Johnny Carson’s character The
Amazing Karnak. All TDCJ’s experts did was, essentially, hold the three
documents up to their foreheads and intuit “Yep, I can tell, this is a real threat.”
Trust me, I’m an expert.10
This is a lot closer to what happened than you would expect. For Director
McCraw (whose agency does conduct actual threat assessments and which does
have the power to collect evidence), none of those things were ever done, even
though DPS has a division that performs such assessments routinely. Instead,
Director McCraw testified that no such police work was done, short of him sitting
in his office thinking about the three documents: Mr. McCraw and DPS did not
conduct any investigation nor keep a case file into the identity of the authors of the
blog, Google reviews, or emails to pharmacies. Deposition of McCraw at 38:6-20;
39:18-22; 41:15-42:13; CR@1246-47; 1249-50. Neither Mr. McCraw nor Mr.
Livingston physically spoke to any supplier of LIDs. Id. at 32:15-22; CR@1240;
Deposition of B. Livingston at 87:3-7; CR@1398. And Mr. McCraw formed his
10
Mr. Cunningham testified he gets especially concerned about threats made
anonymously. Deposition of L. Cunningham at 14:9-16:3; CR@1473-75. It is undisputed
that most of the communications in this case were not anonymous. See Appendix 4-6.
33
opinion in his office during a couple of hours during a single morning. Id. at 11:12-
14:23; 16:12-15; 70:16-22; CR@1219-22; 1224; 1278.
The same can be said for Mr. Cunningham who is the first to admit that he
does not even consider the three documents to be all that important because his
opinion is mostly based upon the idea that “the world is a dangerous place.” We
will discuss this worldview a little more, later, but I think we can see that such a
view is not an expert opinion that can be validated or tested (aside from the fact
that there has been no violence involving LIDs in Texas or anywhere) and is little
more than “I know better than you.”
On the other hand, our expert witness was much more specific. Mr. Parker
testified, based upon decades of education, training and experience, as well as on
threat assessment protocols, that the documents upon which TDCJ and DPS rely do
not contain “any discernible direct threats” or “any readily identifiable targeted
threats against any pharmacies or individuals connected to them or to the TDCJ.”
Parker Aff. at 6, ¶14(A)-(C); CR@790.
With regard to The Pentobarbital Experiment blog, Mr. Parker explained
that there is no wording that “could be loosely interpreted as threatening to the
subject pharmacies or to anyone else.” Id. at 9, ¶16; CR@793. Specifically with
regard to the “exploding head” artwork, Mr. Parker concludes that it is readily
available on the internet and Mr. Parker is “unable to find any connection between
34
the ‘exploding head’ art in the article to any of the article’s contents nor to any
individual or business entity.” Id. at 8, ¶15; CR@792.
In formulating his opinion, Mr. Parker also relied on the deposition
testimony of TDCJ Director Brad Livingston and DPS Director Steven McCraw.
Id. at 2-3, ¶¶4(G) & (I); CR@786-87. Among other things, Mr. Parker noted that
Mr. Livingston never spoke to previous pharmaceutical suppliers about their
decision to cease supplying LIDs. Id. at 14, ¶24(B); CR@798. Mr. Parker also
noted that Mr. Livingston was not aware of the owner of the Woodlands
Compounding Pharmacy reporting any fear of violence. Id. at 14, ¶24(C);
CR@798. With regard to Mr. McCraw’s testimony, Mr. Parker highlighted that
Mr. McCraw was unaware of any threats or issues surrounding pharmacies that
provided lethal injection drugs, or of any DPS investigations into those issues. Id.
at 16-17, ¶25(C), (D); CR@800-01.
In concluding his report and opinions, Mr. Parker stated that a true “threat
assessment” was not performed. Id. at 20, ¶¶27(A)-(C); CR@804. Additionally,
Mr. McCraw did not undertake steps to garner additional information, and did not
follow any protocols prior to issuing his purported threat assessment. Id.11
11
Mr. Cunningham acknowledged that where a threat is conveyed via letter or
email, one would want to track down who sent the communication, what the author
represents, and what is written in the document. Furthermore, one would want to talk to
the author. Deposition of L. Cunningham at 14:9-15:3; 17:2-18:2; CR@1473-74; 1476-
35
Additionally, Mr. Parker concludes that TDCJ attempts to rely on “vague
assertions of risk” and that no “substantial threat of physical harm” from
disclosing the identity of TDCJ’s lethal injection drug supplier can be shown. Id. at
21, ¶28; CR@805. Again, the key issue in this appeal is not whether some other
experts, at some time, could find a STPH, but rather whether TDCJ discharged its
high burden, on this record.
3) Giving up the ghost: TDCJ’s expert admits that his opinion does not
really involve any of the documents in the record.
TDCJ’s outside expert, Mr. Cunningham, admitted that his opinion (that
there is a substantial risk of physical harm) really has little to do with the
documents we have been examining. To Mr. Cunningham, his opinion is founded
upon his belief that the world is a dangerous place and that people can get violent.
Mr. Cunningham admitted his opinion was based upon logical leaps as:
 The Catholic church opposes the death penalty and that there can be
religious extremists in the world; CR@618; 622;
77. Mr. Cunningham testified that he himself does that in his work for his clients and that
he sees the failure to do this as a deficiency in how security is dealt with in our country at
present. Id. at 31:4-33:6; CR@1490-92. When presented with hypothetical threats to
President Obama and to Apple Store employees (taken from real life), Mr. Cunningham
testified that an early step in investigating the threats would be to research and interview
the authors of the threat. Id. at 206:20-209:11; 210:21-212:15; CR@1665-68; 1669-1671.
As previously explained, Mr. McCraw, Mr. Livingston and TDCJTDJC did not conduct
any investigation or interview of the individuals who authored communications to
Woodlands, the Apothecary or the blog.
36
 In Lubbock, one doctor was arrested for hiring a hit-man to murder
his wife’s lover (another doctor): This proves that issues relating to
medicine can get violent. CR@621.
Mr. Cunningham offers us the ultimate ipse dixit: Trust me, I am an expert and I
know that the world would be better off if this information is not disclosed. Of
course, how that jibes with the fact that no protest involving LIDs has ever been
violent or there has ever been any risk of violence in all of the states and use LIDs
is never addressed. Other than, of course, you need to be afraid and you should
trust my warnings. TDCJ’s experts thus want to discuss things such as the
Unabomber, the Olympic bombing in Atlanta in 1996, Al Qaeda, and ISIS.
CR@1277; 1501-02. TDCJ’s summary judgment proof offers so many hackneyed
catch phrases (“proactive,” “zero tolerance”) and bogey men that we offer the
following Bingo card to keep track:
37
Trust me: Almost all of the bogey man and catch phrases identified above are in
TDCJ’s summary judgment proof. On appeal, TDCJ has happened upon a new
catch phrase, “Firestorm,” which appears in its brief fifteen separate times. As we
all know, that expression denotes something that does not involve violence (or fire
or rain) (or lonely times that you think will never end), as in “a political firestorm”
or “a raging controversy” (“His proposal set off a political firestorm”). MERRIAM-
WEBSTER DICTIONARY (online ed.): http://www.merriam-
webster.com/dictionary/firestorm (Last visited 8/8/15).
38
TDCJ can claim, all it wants, that capital punishment, or the withdrawal of
an LID supplier, can ignite a firestorm of controversy, but that has nothing to do
with establishing any kind of actual violence.12 It is especially intriguing for TDCJ
to try and play up the word “firestorm” because no one (not any of its officers, or
DPS’ or its expert) ever contacted The Woodlands to inquire if it had ever received
any kind of actual threat of violence or ever feared for its safety: Certainly that is
something that one would expect someone to do if it had any real concerns of this
firestorm being anything other than metaphorical, political or imaginary.
With this in mind, let’s get back to the real basis of Mr. Cunningham’s
opinion is that the identity of the LID would probably lead to violence just by his
knowledge of the world and the nature of evil-doers. TDCJ (almost) admits as
much in its brief when it argues that it should still “win” even if “these e-mails
themselves [do not] constitute actual explicit threats of violence” because such
violence “is not the only consideration.” Appellant’s Brief at 34. But, that is the
very type of “vague assertion of risk” that the Texas Supreme Court stated could
not be relied upon. As stated above, we have the entire summary judgment record
and affidavits from the Cox case (the request for the Governor’s Protective Details
travel records) which show a much more fact-intensive analysis than in our case.
12
See, e.g., the following headline “JUSTIN BIEBER CAUSES FIRESTORM AFTER
SUGGESTING THAT ANNE FRANK WOULD BE A ‘BELIEBER.’”
http://www.worldwideweirdnews.com/2013/04/26676.html (last visited: 8/8/15) )
39
As further proof of how far “out there” Mr. Cunningham’s opinion is, he
testified that he knows Mr. McCraw’s assessment was reliable because he knew it
was conducted by McCraw and other DPS personnel. Deposition of L.
Cunningham at 232:23-238:24; CR@1691-97. In other words, Mr. Cunningham
testified that he learned from Mr. McCraw’s deposition that people other than Mr.
McCraw were involved in the threat assessment. Id. at 236:12-238:24; 241:2-14;
CR@1691-97; 1700. In point of fact, Mr. McCraw testified that no other DPS staff
had input on his letter nor has DPS opened any case files or investigations.
Deposition of S. McCraw at 19:2-6; 34:13-35:1; 38:12-14; 41:15-42:13;
CR@1227; 1242-43; 1246; 1249-50.
TDCJ wishes to argue that it can withhold this information without a “threat
of violence” because a specific threat is not “needed to establish that disclosure
would substantially threaten physical harm.” Appellant’s Brief at 49. Although
such a threat does seem to be at the heart of the Supreme Court’s test, what is plain
is that simply “declaring” a threat because of “radical elements” in the world (and
with no specific threats or events related to this information) is way beyond what
may be relied upon to justify a STPH.
4) Plaintiffs’ expert provided actual content and context for his opinion.
By contrast, the Appellees’ expert, Mr. Tom Parker, after thoroughly
analyzing the same documentary evidence considered by Mr. Livingston and Mr.
40
McCraw (and, later, by Mr. Cunningham) concludes that the information does not
support the conclusion that there is a STPH from disclosure of public information.
Mr. Parker’s affidavit thoroughly analyzes the Google business reviews and
internet postings written following the disclosure of the identity of the Woodlands
Compounding Pharmacy. Mr. Parker reviewed the Pentobarbital Experiment blog
entry. Looking at the language of all of these materials, Mr. Parker concludes that
no desire to inflict violence or any type of discernible threat can be evinced from
the documents. Mr. Parker additionally considered the significance of the blog’s
cartoon of an “exploding head,” and found that the image bore no connection to
anything in the article or to any person or entity. Finally, Mr. Parker discusses the
email by Prof. Humez to the Apothecary, and notes that Prof. Humez’s disclosure
of his own name, email address and telephone number made it “unlikely that he
intended to commit any violence himself.” Parker Aff @ 9, ¶17; CR@793.
Unlike TDCJ’s experts, Mr. Parker did not stop at the four corners of the
three documents. By conducting research, Mr. Parker was able to determine Prof.
Humez’s age, domicile, his former profession, his neighborhood, and the absence
of any “readily identifiable criminal record or suspect affiliations with any radical
anti-death penalty or terrorist groups identifiable on standard internet and
commercial databases.” Parker Aff. @ 9, ¶17; CR@793. Likewise, “the simplest
commercial database investigation” by Mr. Parker showed that the author of the
41
Pentobarbital Experiment blog did not have any affiliations with radical groups
and did not have a criminal record. All the experts in this case agree that
researching the author of a threat is among the first and most important steps in
conducting an investigation. Why Mr. McCraw and Mr. Cunningham could not do
that (with the exception of an assistant contacting Prof. Humez) is not explained.
On the basis his review of the documents that TDCJ’s experts also reviewed,
based on his additional research, as well as on his forty-plus years of background,
training and experience, Mr. Parker concluded that DPS did not provide an actual
“threat assessment.” Neither Mr. McCraw nor Mr. Cunningham followed accepted
practices in the literature or conducting such an assessment by, at least,
investigating the authors of what he considered threats.
What does TDCJ say about plaintiffs’ expert? Well, DPS learned when
deposing Mr. Parker that he has donated his time (as a law enforcement
investigator) to organizations that investigate the actual innocence of inmates
(including those on death row) and has become a member of such pro bono
organizations. CR@2250-51. So, to TDCJ, the fact that he is opposed to the death
penalty makes his entire opinion discountable (and the fact that Mr. Cunningham
believes in the death penalty is irrelevant). But, their views on capital punishment
notwithstanding, the issue in this case is whether the actual evidence in this case
discharges TDCJ’s high burden of establishing a substantial threat of actual,
42
physical violence. Plainly, as the district court determined, such a high burden has
not been met.
D) A final word about the 2015 legislative change.
In the 2015 legislative session, as a response to this case, TDCJ sought to
amend TPIA to make this information secret, without a showing of any risk of
violence (S.B.1697). This bill was passed and effective for any TPIA request
made on or after September 1, 2015 (creating new TPIA section, §552.1081). This
bill was enacted because TDCJ was concerned that if the identity was continued to
be made known, that bad publicity or other public opprobrium would make a
providers less willing to supply the drugs to TDCJ and that a shortage could ensue.
Plainly, this is something that the legislature is entitled to do.
Both sides agree that this change does not affect our case because the statute
is not retroactive. See Appellant’s Brief at 18, 24. But, this legislative change
does affect our case in two ways.
First, the change shows that the legislature no longer wanted the secrecy of
this information to solely upon a showing that a STPH was present. In other words,
the Legislature recognized that even a peaceful act of protest (or even boycott)
might affect a pharmacist’s decision to supply LIDs. This change highlights the
fact –before the amendment was effective—that TDCJ recognized that such a
showing of violence was very difficult and did not wish to be burdened by that
43
standard anymore. Similarly, the change highlights that if all we have here is the
risk of peaceful, lawful protest by those opposed to capital punishment, that is not
sufficient to justify censorship and secrecy before the effective date of S.B. 1697.
And that is all this record contains.
Second, the amendment also shows how “small” the issue is before this
Court. Anyone who supplies LIDs to TDCJ after September 1, 2015, is secret
under the law, no matter what. Thus, the only issue before this court is the identity
of suppliers in April 2014, the date of the plaintiffs’ TPIA request. Since the
identity of all Texas LID suppliers was known up until that point, and there has
never been any actual or threatened violence against any of those providers, that
confirms that TDCJ has not discharged its high burden to justify secrecy, under the
law before the new statute was enacted.
PRAYER
For the foregoing reasons, Appellees respectfully request that the Court
affirm the trial court’s judgment which granted Appellees’ Motion for Summary
Judgment and denied Appellants’ Motion for Summary Judgment.
44
Respectfully submitted,
/s/ Philip Durst
Philip Durst
State Bar No. 06287850
Manuel Quinto-Pozos
State Bar No. 24070459
DEATS, DURST & OWEN, P.L.L.C.
1204 San Antonio Street, Suite 203
Austin, Texas 78701
(512) 474-6200
Fax: (512) 474-7896
Counsel for Appellees
45
CERTIFICATE OF COMPLIANCE
As required by Texas Rule of Appellate Procedure 9.4(i)(3), the above-
signed counsel for Appellees certifies that the number of words in this document,
excluding those properly excluded under TRAP 9.4(i)(1), is 10,440.
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5, I certify that
I have served this document on the below-listed counsel for all other parties on
August 10, 2015, by electronic transmission and facsimile:
Richard B. Farrer
Assistant Solicitor General
Office of the Attorney General
P.O. Box 12548
Austin, Texas 78711-2548
/s/ Philip Durst
Philip Durst/Manuel Quinto-Pozos
46
APPENDIX 1
TRIAL COURT’S ORDER
DC BK14358 PG1976
CAUSE NO. D-1-GN-14-000908
MAURIE LEVIN, NAOMI TERR, and, § IN THE DISTRICT COURT OF
HILARY SHEARD, §
Plaintiffs §
§
vs. §
§ TRAVIS COUNTY, TEXAS
TEXAS DEPARTMENT OF §
CRIMINAL JUSTICE, §
Defendant § 20lsT JUDICIAL DISTRICT
ORDER ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
and DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Came on for consideration at a hearing on December 3, 2014, Plaintiffs' Motion for Partial
Summary Judgment and Defendant's Motion for Summary Judgment. Plaintiffs and Defendant
appeared at the hearing through their respective counsel. After considering the arguments made at
the hearing on December 3, 2014, the relevant pleadings on file, the summary judgment evidence
tendered to the Court at the time of the hearing, and the Court's separate rulings on Plaintiffs' and
Defendant's Objections to and Motions to Strike Summary Judgment Evidence and Defendant's
Motion to Strike Plaintiffs' Expert, Thomas Parker, the Court now finds that Plaintiffs' Motion for
Partial Summary Judgment should be granted and Defendant's Motion for Summary Judgment
should be denied.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Plaintiffs' Motion
for Partial Summary Judgment is GRANTED.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motion for
Summary Judgment is DENIED.
DARLENE BYRNE
JUDGE PRESIDING
2297
APPENDIX 2
TEX. GOV’T CODE CH. 552
(excerpts)
SB 1697
SUBCHAPTER B. RIGHT OF ACCESS TO PUBLIC INFORMATION
Sec. 552.021. AVAILABILITY OF PUBLIC INFORMATION. Public
information is available to the public at a minimum during the
normal business hours of the governmental body.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 1035, Sec. 2, eff. Sept. 1,
1995.
Sec. 552.0215. RIGHT OF ACCESS TO CERTAIN INFORMATION AFTER
75 YEARS. (a) Except as provided by Section 552.147, the
confidentiality provisions of this chapter, or other law,
information that is not confidential but is excepted from required
16
disclosure under Subchapter C is public information and is
available to the public on or after the 75th anniversary of the date
the information was originally created or received by the
governmental body.
(b) This section does not limit the authority of a
governmental body to establish retention periods for records under
applicable law.
Added by Acts 2011, 82nd Leg., R.S., Ch. 462 (S.B. 1907), Sec. 1,
eff. September 1, 2011.
Sec. 552.022. CATEGORIES OF PUBLIC INFORMATION; EXAMPLES.
(a) Without limiting the amount or kind of information that is
public information under this chapter, the following categories of
information are public information and not excepted from required
disclosure unless made confidential under this chapter or other
law:
(1) a completed report, audit, evaluation, or
investigation made of, for, or by a governmental body, except as
provided by Section 552.108;
(2) the name, sex, ethnicity, salary, title, and dates
of employment of each employee and officer of a governmental body;
(3) information in an account, voucher, or contract
relating to the receipt or expenditure of public or other funds by a
governmental body;
(4) the name of each official and the final record of
voting on all proceedings in a governmental body;
(5) all working papers, research material, and
information used to estimate the need for or expenditure of public
funds or taxes by a governmental body, on completion of the
estimate;
(6) the name, place of business, and the name of the
municipality to which local sales and use taxes are credited, if
any, for the named person, of a person reporting or paying sales and
use taxes under Chapter 151, Tax Code;
(7) a description of an agency ’s central and field
organizations, including:
(A) the established places at which the public
17
may obtain information, submit information or requests, or obtain
decisions;
(B) the employees from whom the public may obtain
information, submit information or requests, or obtain decisions;
(C) in the case of a uniformed service, the
members from whom the public may obtain information, submit
information or requests, or obtain decisions; and
(D) the methods by which the public may obtain
information, submit information or requests, or obtain decisions;
(8) a statement of the general course and method by
which an agency ’s functions are channeled and determined, including
the nature and requirements of all formal and informal policies and
procedures;
(9) a rule of procedure, a description of forms
available or the places at which forms may be obtained, and
instructions relating to the scope and content of all papers,
reports, or examinations;
(10) a substantive rule of general applicability
adopted or issued by an agency as authorized by law, and a statement
of general policy or interpretation of general applicability
formulated and adopted by an agency;
(11) each amendment, revision, or repeal of
information described by Subdivisions (7)-(10);
(12) final opinions, including concurring and
dissenting opinions, and orders issued in the adjudication of
cases;
(13) a policy statement or interpretation that has
been adopted or issued by an agency;
(14) administrative staff manuals and instructions to
staff that affect a member of the public;
(15) information regarded as open to the public under
an agency ’s policies;
(16) information that is in a bill for attorney ’s fees
and that is not privileged under the attorney-client privilege;
(17) information that is also contained in a public
court record; and
(18) a settlement agreement to which a governmental
18
body is a party.
(b) A court in this state may not order a governmental body
or an officer for public information to withhold from public
inspection any category of public information described by
Subsection (a) or to not produce the category of public information
for inspection or duplication, unless the category of information
is confidential under this chapter or other law.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 1035, Sec. 3, eff. Sept. 1,
1995; Acts 1999, 76th Leg., ch. 1319, Sec. 5, eff. Sept. 1, 1999.
Amended by:
Acts 2011, 82nd Leg., R.S., Ch. 1229 (S.B. 602), Sec. 2, eff.
September 1, 2011.
19
S.B. No. 1697
AN ACT
relating to the confidentiality of certain information regarding
procedures and substances used in the execution of a convict.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 552, Government Code, is
amended by adding Section 552.1081 to read as follows:
Sec. 552.1081. EXCEPTION: CONFIDENTIALITY OF CERTAIN
INFORMATION REGARDING EXECUTION OF CONVICT. Information is
excepted from the requirements of Section 552.021 if it contains
identifying information under Article 43.14, Code of Criminal
Procedure, including that of:
(1) any person who participates in an execution
procedure, including a person who uses, supplies, or administers
a substance during the execution; and
(2) any person or entity that manufactures,
transports, tests, procures, compounds, prescribes, dispenses,
or provides a substance or supplies used in an execution.
SECTION 2. Article 43.14, Code of Criminal Procedure, is
amended to read as follows:
Page - 1 -
Art. 43.14. EXECUTION OF CONVICT: CONFIDENTIAL
INFORMATION [CONVICT]. (a) Whenever the sentence of death is
pronounced against a convict, the sentence shall be executed at
any time after the hour of 6 p.m. on the day set for the
execution, by intravenous injection of a substance or substances
in a lethal quantity sufficient to cause death and until such
convict is dead, such execution procedure to be determined and
supervised by the director of the correctional institutions
division of the Texas Department of Criminal Justice.
(b) The name, address, and other identifying information
of the following is confidential and excepted from disclosure
under Section 552.021, Government Code:
(1) any person who participates in an execution
procedure described by Subsection (a), including a person who
uses, supplies, or administers a substance during the execution;
and
(2) any person or entity that manufactures,
transports, tests, procures, compounds, prescribes, dispenses,
or provides a substance or supplies used in an execution.
SECTION 3. The changes in law made by this Act apply only
to a request for information that is received by a governmental
body or an officer for public information on or after the
Page -2 -
effective date of this Act. A request for information that was
received before the effective date of this Act is governed by
the law in effect on the date the request was received, and the
former law is continued in effect for that purpose.
SECTION 4. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas
Constitution. If this Act does not receive the vote necessary
for immediate effect, this Act takes effect September 1, 2015.
Page -3 -
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1697 passed the Senate on
May 11, 2015, by the following vote: Yeas 23, Nays 8.
_____________________________
_
Secretary of the Senate
I hereby certify that S.B. No. 1697 passed the House on
May 19, 2015, by the following vote: Yeas 99, Nays 45, two
present not voting.
_____________________________
_
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor
Page -4 -
APPENDIX 3
Attorney General Letters
Broden v. TDCJ order
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 18, 2010
Ms. Patricia Fleming
Assistant General Counsel
TDCJ - Office of the General Counsel
P.O. Box 4004
Huntsville, Texas 77342-4004
OR2010-17507
Dear Ms. Fleming:
You ask whether certain information is subject to required public disclosure under the
Public Information Act (the "Act"), ch~pter 552 ofthe Government Code. Your request was
assigned ID# 400366.
The Texas Department of Criminal Justice (the "department") received requests :fi:om four
requestors for information and correspondence regarding the department's suppliers and
current stock oflethal injection drugs, including efforts to acquire more or altemative drugs,
correspondence with other states or entities regarding those drugs, and correspondence with
a named company. You claim the requested information is excepted from disclosure under
sections 552.101,552.108, and 552.151 ofthe Govemment Code. We have considered the
exceptions you claim and reviewed the submitted information. We have also received and
considered comments submitted by three ofthe requestors and an interested third party. See
Gov't Code § 5 52.304 (interested party may submit written comments regarding availability
of requested infonnation).
Initially, we note you have not submitted information responsive to the requests for records
or correspondence regarding efforts to acquire more of the currently used drugs, records or
correspondence regarding efforts to find altemative drugs, correspondence with other states
or entities regarding the drugs, or correspondence with the named company. To the extent
information responsive to these aspects of the requests existed on the dates the department
received the requests, we assume you have released it. If you have not released any such
information, you must do so at this time. See id. §§ 552.301(a), .302; see also Open Records
POST OFFICE BOX 1254 8, AUSTIN, TEXAS 7 8711-2548 TEL: (512)463-21 00 WWW. OAG. STATE. TX. US
An Equal Employment Oppo•·tunity Employer · Printed on Recycled Paper 33
~ ..... ,.~. ------------------
. '~
.<~ ..
Ms. Patricia Fl.~ming - Page 2
.~··
Decision No: •664 (2000) (if governmental body concludes that no exceptions apply to
requested information, it must release infonnation as soon as possible).
Next, you state the· only form of media maintained by the department that contains
information regarding the requested lethal injection drug stock quantities and expiration dates
are the labels affixed to each vial of drug. You have inquired whether the submitted
photographs of drug vial labels are sufficient to be considered responsive to these parts of
the requests, or whether the department is required to count, inventory, and reduce to writing
the requested information regarding quantities and expiration dates. The Act does not
require a governmental body to make available information that did not exist when the
request was received, nor does it require a governmental body to compile inforination or
prepare new information. See Economic Opportunities Dev. Corp. v. Bustamante, 562
S.W.2d 266 (Tex. Civ. App.-San Antonio 1978, writ dism'd); Open Records Decision
No. 45 2 at 3 (19 86). However, a governmental body must make a good-faith effort to relate
a request to information that is within its possession or control. See Open Records Decision
No. 561 at 8-9 (1990). As you have submitted information you deem to be responsive to the
requests for quantities and expiration dates, we will address your claimed exceptions for this
information, as well as the remaining submitted information.
We note the submitted information contains purchase orders. Section 552.022 of the
Government Code provides in pertinent part:
(a) Without limiting the amount or kind of information that is public
information under this chapter, the following categories of information are
public information and not excepted :from required disclosure under this
chapter unless they are expressly confidential under other law:
(3) information in an account, voucher, or contract relating to the
receipt or expenditure of public or other funds by a governmental
body[.]
Gov't Code § 552.022(a)(3). The submitted purchase orders are vouchers related to the
expenditure of public funds by the department and are, thus, made public tmder
section 552.022(a)(3). fuformation subject to section 552.022(a)(3) must be released unless
it is expressly confidential under other law. You claim the last dates of purchase listed on
some of the purchase orders are excepted :from disclosure under section 552.108 of the
Government Code. This section, however, is a discretionary exception to disclosure that
protects a governmental body's interests and may be waived. See Open Records Decision
Nos. 665 at 2 n.5 (2000) (discretionary exceptions generally), 586 (1991) (governmental
body may waive section 552.108). As such, section 552.108 is not other law that makes
information confidential for the purposes of section 552.022(a)(3). Therefore, the
department may not withhold the last dates of purchase under section 552.108 of the
Government Code. You also claim the last dates of purchase are excepted under
34
Ms. Patricia Fleming - Page 3
sections 552.101 and 552.151 ofthe Government Code. As these sections are considered
other law for purposes of section 552.022(a)(3), we will consider the applicability of
sections 552.101 and 552.151 to the submitted last dates of purchase, as well as your
arguments against disclosure for the remaining information.
Section 552.101 ofthe Government Code excepts from disclosure "information considered
to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't
Code§ 552.101. Section552.101 encompasses thedoctrineofcommon-lawprivacy, which
protects infonnation if it (1) contains highly intimate or embarrassing facts, the publication
of which would be highly objectionable to a reasonable person, and (2) is not oflegitimate
concern to the public. Indus. Found. v. Tex. Indus. Accident Bd., 540 S.W.2d 668, 685
Tex. 1976 . To demonstrate the a licabili of common-law rivac , both ron s of this
test must e esta IS e . . at ou see c to wit 10 un er common- aw pnvacy
and "special circumstances" the quantities and expiration dates of the department's lethal
injection drug stock, the last dates of purchase ofthose drugs, and the names ofthe suppliers ·
from which the department acquires those drugs. However, the Third Court ofAppeals ruled
the "special circumstances" exception found in past Attorney General Open Records
Decisions directly conflicts with Texas Supreme Court precedent regarding common-law
privacy. Tex. Dep 't of Pub. Safety v. Cox Tex. Newspapers, L.P. & Hearst Newspapers,
L.L. C., 287 S.W.3d 390 (Tex. App.-Austin 2009, pet. filed). The court of appeals ruled
the two-part test set out in Industrial Foundation is the "sole criteria" for detennining
whether information can be withheld under common-law privacy. Id.; see also Indus.
Found., 540 S.W.2d at 686. ill this instance, the information at issue consists of drug
quantities, expiration dates, last dates of purchase, and supplier names. You have not
explained how this information is highly intimate or embarrassing. As you have failed to
demonstrate the infonnation meets the first prong of the Industrial Foundation test for
privacy, we find the drug quantities, expiration dates, last dates of purchase, and supplier
names at issue are not confidential under common-law privacy and the department may not
withhold this information under section 552.101 ofthe Government Code.
Section 552.151 ofthe Government Code provides:
fuformation in the custody of a governmental body that relates to an
employee or officer of the governmental body is excepted from the
requirements of Section 552.021 if, under the specific circumstances
pertaining to the employee or officer, disclosure of the information would
subject the employee or officer to a substantial threat of physical hann.
Gov't Code§ 552.151. You seek to withhold the requested drug quantities, expiration dates,
last dates of purchase, and supplier names under section 552.151. This section, however,
applies only to information that relates to an employee or officer ofthe department. As none
ofthe information you seek to withhold pertains to a department employee or officer, we find
you have failed to demonstrate the applicability of section 552.151 to the information at
35
Ms. Patricia Fleming - Page 4
. Consequently, none of the information you seek to withhold may be wi.u.u.-.,J.u, .u,,u.,
tion 552.151 ofthe Government Code.
Section 552.1 08(b)(1) ofthe 9overnment Code excepts :fi:om disclosure the internal records
and notations of law enforcement agencies and prosecutors when their release would
interfere with law enforcement and crime prevention. Id. § 552.108(b)(1); see also Open
Records Decision No. 531 at 2 (1989) (quoting Ex parte Pruitt, 551 S.W.2d 706
(Tex. 1977)). Section 552.108(b)(l) is intended to protect "information which, if released,
would permit private citizens to anticipate wealmesses in a police department, avoid
detection, jeopardize officer safety, and generally undermine police efforts to effectuate the
laws of this State." See City of Ft. Worth v. Cornyn, 86 S.W.3d 320 (Tex.
App.-Austin 2002, no writ). To demonstrate the applicability of this exception, a
governmental body must meet its burden of explaining how and why release ofthe requested
information would interfere with law enforcement and crime prevention. Open Records
Decision No. 562 at 10 (1990). This office has concluded section 552.108(b) excepts from
public disclosure information relating to the security or operation of a law enforcement
agency. See, e.g., Open Records Decision Nos. 531 (release.of detailed use of force
guidelines would undulyinterferewithlawenforcement), 252 (1980) (section 552.108 ofthe
Government Code is designed to protect investigative techniques and procedures used in law
enforcement), 143 (197 6) (disclosure of specific operations or specialized equipment directly
related to investigation or detection of crime may be excepted).
You assert the requested drug quantities and expiration dates are excepted under
section 552.1 08(b)(1 ). You contend disclosure ofthis information, when coupled with other
publicly lmown information, would allow death row offenders and the public to determine
how much of the lethal injection drugs the department has available for future executions.
You argue this knowledge will motivate those offenders and the public to disrupt the
offenders' scheduled executions. Although gaining this lmowledge may motivate the
offenders and/or public to disrupt the executions, you have not explained how disclosure of
the requested drug quantities and expiration dates would actually allow or aid the offenders
or public to disrupt the execution process or otherwise interfere with law enforcement. Thus,
we fmd you have failed to establish how public access to the information at issue would
interfere with law enforcement. Consequently, the department may not withhold the
requested drug quantities and expiration dates under section 552.108(b)(l) of the
Govennnent Code. As you have not claimed any other exceptions to disclosure, the
requested information must be released.
This letter ruling is limited to the particular information at issue in this request and limited
to the facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other information or any other circumstances.
This ruling triggers important deadlines regarding the rights and responsibilities of the
govenunental body and of the requestor. For more infonnation concerning those rights and
36
Ms. Patricia Fleming - Page 5
responsibilities, please visit our website at http://www.oag.state.tx.us/open/index orl.php,
or call the Office of the Attorney General's Open Government Hotline, toll free,
at (877) 673-6839. Questions concerning the allowable charges for providing public
infonnation m1der the Act must be directed to the Cost Rules Administrator of the Office of
the Attorney General, toll free, at (888) 672-6787.
Sincerely,
;(~lS.Uf ~
Leah B. Wingerson ~
Assistant Attorney General
Open Records Division
LBW/dls
Ref: ID# 400366
Enc. Submitted documents
c: Requestor
(w/o enclosures)
Mr. Brian W. Stull
Senior Staff Attorney
ACLU Foundation
201 West Main Street, Suite 402
Durham, North Carolina 27701
(w/o enclosures)
Ms. Lisa Graybill
Legal Director
ACLU ofTexas
P.O. Box 12905
Austin, Texas 78711-2905
(w/o enclosures)
Mr. Joshua Houston
Ms. Bee Moorhead
Texas Impact
221 East 91h Street, Suite 403
Austin, Texas 78701
(w/o enclosures)
37
.0:~=>~
tt:~·
~1\1:
<::..~~' .
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
July 3, 2012
?v~patricia Fleming
AssisfuQ.!_ General Counsel
0 ffice oit~:~eral Counsel
Texas Dcpt~~~t of Criminal Justice
P.O. Box 4004 ,
·Huntsville, Texas ~42-4004
"- OR2012-10208
Dear Ms. Fleming:
You nsk \vbcl her certain information is subject to required public disclosure unJer the
Public Infotmation Act (the "Act"), chapter 552 ofthc Government Code. Your request was
assigned ID# 457886.
The Texas Department of Criminal Justice (the Hdepartment") received a request for twelve
categories of infonnation pertaining to the department's execution protocol and the
procurement ru1d use oflcthal injection drugs. You state some infonnation has been or will
be released. You claim the submitted information is excepted from disclosure under
sections 552.101 and 552.108 of the Govemment Code. We have considered the claimed
exceptions aml reviewed the submitted information.
Initialfy, we note some of the submitted information was the subject of a previous request
for a ruiing, in response to which this office issued Open Records Letter No. 20 12-0&649
(20 12). In this prior ruling, we ruled the department must withhold the marked billing
account numbers under section 552.136 of the Government Code and must release the
remaining infom1ation. We have mark~;>d the information subject to this prior ruling; As we
have no indication there has been any change in the law, facts, or circumstances on which
this ruling was based, we conclude the department must rely on Open Records Letter
No. 20.12-08649 as a previous determination and withhold or release the marked information
i'OST 0H1CE Box 125~8. AUSTI~. TE~~S 78711-2548 HL: (512) 463-2100 WWW,TEXAS.O.TTORNEYGlNERAL.GOV
All' fqw.d frt1f~p·u11, OJpliUI!IU) E""!/;ya • p,j.,lti t~ Pn;rftJ {',,,,
43
Ms. Patricia Fleming ~ Page 2
in accordance with it. 1 See Open Records Decision No. 673 (2001) (so long as law, facts,
and circumstances on which prior ruling was based have not changed, first type of previous
determination exists where requested information is precisely same information as was
addressed in prior attorney general ruling, ruling is addressed to same governmental body,
and mling concludes that information is or is not excepted from disclosure). However, we
will addre'ss your arguments against disclosure of the remaining submitted information.
We note some of the remaining information consists of purchase orders, invoices, and
vouchers that are subject to section 552.022(a)(3) of the Government Code.
Section 552.022(a)(3) provides "information in an account, voucher, or contract relating to
the receipt or expenditure of public or other funds by a governmental body" is 5ubject to
required public disclosure unless it is ''made confidential under this chapter or other law."
Gov't Code § 552.022(a)(3). Although you raise section 552.108 of the Government Code
for portions of the information subject to section 552.022(a)(3), section 552.108 is a
discretionary exception to disclosure and does not make infom1ation confidential under the
Act. See Open Records Decision Nos. 665 at 2 n.S (2000) (discretionary exceptions
generally); 177 at 3 (1977) (statutory predecessor to section 552.108 subject to waiver).
Therefore, the department may not withhold the information subject to section 552.022(a)(3)
under section 552.108. However, you also raise section 552.101 of the Government Code
for portions of th1s information, and we note some of the information contains account
numbers subject to section 552.136 of the Government Code! Accordingly, because
sections 552.101 and 552.136 make information confidential under the Act, we will consider
their applicability to the information at issue. We will also consider your arguments under
sections 552.101 and 552.1 08 tor the remaining information not subject to
section 552.022(a)(3).
Section 552.101 of the Government Code excepts from disclosure "information considered
to be conrdcntial by law, either constitutional, statutory, or by judicial decision." Gov't
Code § 552, I0 I. You assert portions of the submitted information are confidentiul pursuant
to the common-law physical safety exception that the Texas Supreme Court recognized in
Texas Department ofPublic Safely v. Cox Texas Newspapers, L.P. & Hearst Newspapers,
L.L.C.; 343 S.W.3d 112, 117 (Tex. 2011) ("freedom from physical harm is an independent
interest protected under law, tmlethered to the right of privacy"). In the Cox decision, the
Texas Supreme Court recognized, for the first time, a common~ law physical safety exception
to required disclosure. Cox, 343 S.W.3d at 118. Pursuant to this common~law physical
safety exception, the court determined "information may be withheld [from public release J
. 'Because our n1ling as to this infonnation is dispositive, we do not addmss your arguments against its
disclosure.
2
The Oft1cc of the Attorney General will mise a mandatory exception on behalf of a govemmental
body, but ordinarily will not mise other exceptions. Open Records Decision Nos. 481 (1987), 480 {1987), 470
(1987).
44
tvls. Patricia Fleming - Page 3
if disclostire would create u substantial threat of physical harm." ld In applying this new
standard, the court noted "deference must be afforded" Jaw enforcement experts regarding
the probability of hmm, but further cautioned "vague assertions of risk will not carry the
day." !d. at 119.
You seek to withhold addresses, phone numbers, distributor information, various numeric
identifiers, and certain notations and descriptions contained in the information at issue. You
assert thi~ information is confidential under the common~law physical safety exception
because disclosure of this information will reveal the identities of the department's suppliers
and distributors of lethal injection dmgs, and as a result, the suppliers and distributors will
be subject to potential harassment. You also allege there would be a substantial threat of
physical harm to the companies at issue because previously known suppliers have been
subject to harassment by certain interest groups in the past, and you believe such harassment
coulq escalate into violence. Upon review, while we acknowledge the department's
concerns, we find you have not established disclosure of the information at issue would
create a substantial threat of physical ham1 to any individual. Thus, the department may not
withhold any of the submitted information under section 552.10 l of the Government Code
in conjunction with the common-law physical safety exception.
You assert the remaining information not subject to section 552.022(a)(3) is excepted under
section 552.108 of the Government Code. Section 552.1 08(b)( 1) excepts from disclosure
"la]n internal record or notation of a law enforcement agency or prosecutor that is maintained
for internal use in matters relating to law enforcement or prosecution . , . if ... release oft he
internal record or notation would interfere with law enforcement or prosecution[.f' Gov't
Code§ 552.1 OS(b)(l ). Section 552.1 08(b)(l) is intended to protect "information which, if
released, would pennit private citizens to anticipate weaknesses in a police department, avoid
detection, jeopardize ofticer safety, and generally undermine police eJTorts to effectuate the
laws of this State." Cily ofFort Worth v. Cornyn, 86 S.W.3d 320 (Tex. App.-Austin 2002,
no pet.). To demonstrate the applicubillty of this exception, a governmental body must meet
its burden of explaining how and why release of the requested information would interfere
with law enforcement and crime prevention. Open Records Decision No. 562 at 10 (1990)
(construing statutory predecessor). This ot1ice has concluded section 552. l 08(b)(I) excepts
from public disclosure intbrrnation relating to the security or operation of a law enforcement
agency. See, e.g., Open Records Decision Nos. 531 (1989) (release of detailed use of force
guidelines would unduly interfere with law enforcement), 252 ( 1980) (section 552.108
designed to protect investigative techniques and procedures used in law entorccment), 143
(1976) (disclosure of specific operations or specialized equipment directly related to
investigation or detection of crime may be excepted). Section 552.1 08(b )(I) is not
applicabl~, however, to generally known policies and procedures. See, e.g., ORDs 531 at 2-3
(Penal Code provisions, common law rules, and constitutional limitations on use of force not
protected), 252 at 3 (governmental body failed to indicate why investigative procedures and
techniques requested were any different from those commonly known). The determination
45
l'vls. Patricia Fleming - Page 4
of whether the release of particular records would interfere with law enforcement is made on
a case-by-case basis. Open Records Decision No. 409 at 2 ( 1984).
You contend disclosure of some of the remaining information, when coupled with other
publicly known information, would allow certain parties to determine which companies
supply the department with lethal injection drugs. You argue these parties will attempt to
dismpt the operations of the department's suppliers, thus inhibiting the department's ability
to obtain such drugs and interfering with the department's statut01y duty to C
Oo
JUSTICE. § a>U
Defendant § :::..~ :z:
----------~--------------------§ -=~ ~
-ot-
(l) . _
=o
u..
ORDER
On the 6111 day of January, 2011, Plaintiff F. Clinton Broden's Petition for a Writ of
Mandamus was heard in this Court. Having considered the pleadings. evidence and argument of
counseL this Court finds that Plaintiffs Petition for Writ of Mandamus should be GRANTED.
Plaintiff. as the prevailing party, has filed a Motion for Attorney's Fees, which will be heard at a
later date.
IT IS THEREFORE ORDERED THAT Plaintiffs Petition for Writ of Mandamus is
GRANTED. Defendant argued at the hearing that this Court lacked jurisdiction over Plaintiffs
Petilion pursuant to Section 552.321 of the Public Information Act. Section 552.321 of the
Public Information i\ct "confers upon the trial court the authority to issue a writ of mandamus in
three circumstances: where a governmental body refuses to request an attorney general's decision
on whether information is public: where the governmental body refuses to supply public
information~ and where a governing body refuses to supply infonnation that the attorney general
has detennined is public infonnation not excepted from disclosure.'' Thomas v. Cornyn, 71
.s. W.3d 473, 481-482 (TeX:~ App.-A'ustin 2002, no pet.) (dtatfons o"mitted). This' Court_fi,nds
that the TDCJ has '"refuse[d] to supply public information:' and. as such, jurisdiction in this
Court is proper. The court further finds that, although there was discussion of a '"plea to the
40
JAN-10-2011 12:32 DISTRICT JUDGE/CIVIL 1D 512 854 9332 J-'.UUJ/UUJ
-----~-~ ~-- -
jurisdiction'' at the hearing, no plea to the jurisdiction was filed by the Defendant. Accordingly~
the Defendant's jurisdictional argwnent was considered as part of the Court's merits decision.
Further. Plaintiff has established that he made a proper request for public infonnation and that
Defendant refused to provide such information, and Defendant has failed to establish any
exception to the Act. Defendant cannot withhold the requested information under the "special
circumstances'' exception because (1) the exception has been rejected by the Third Court of
Appeals in Tex. Dep 't of Pub. Safery v. Cox Tex. Newspapers, L.P. & Hearst Newspapers.
L.L.C., 287 S.W.3d 390 (Tex. App.-Austin 2009, pet. granted), and (2) Defendant presented no
evidence to support its reliance on any exception asserted.
lT IS FURTHER ORDERED THAT Defendant TDCJ shall, no later than 10 am,
Monday January 10, 2011 produce an unredacted version of Exhibit "A.. attached to this order;
and shall, no later than 10 am, Tuesday, January 1l. 2011, provide any additional "public
information," as that term is defined under the Public Information Act that is responsive to
Plaintiffs November 4, 2010 open records request and that has not already been provided by
Defendant.
SIGNED l 01 Li'!e$
Sub]cc:t; Apothceary rulaQ Cont~t Ul\ Forn!SubnlfssiM
N:i!triCII: Prof. Humet
Em~fll :rn.intrlenat)e;mllltn~..M.t
Pho~~:44062Z21l2
M~~mge: Your site savs nettling abouc pomtobarbttor. Do you compound It for e11~ &~ate of Ml~otJ~l's
de(Jartm~nt of corrections, <':Is has beoar~ publicly I.'!Uooad In an A? s~ury that ran l:hioli morning, Met Jr so,
now that that story h;;ls sonc publi~, do you think that l.!i prudent? SMms t.o me that numufactur1ng r.t drug
~xpressly to kill peopt~ fll~s In the r-~cc of one or those r:omm;:u,dm~n~ Moses got frorn Jehovah on Sinai,
but maytle J•m just being ohHas:hloned. Still, we~ra Xyou I'd at l~st want to beef up my security now. th~t
you've been put ln the spotlight as a 1/krW supplit:!r and ~iled tl> ~~H~ ~ flat denl!ll, As the fofJ<:I; et th~
t~clor~ll:lulldif1g c:1:1n tell you, iC only tak~s one f<;Jililtic with ~ truckload of fertllb.:er to m.!lka ll: ret~! dant In
bUSIMss as U!ilUQIL In yo11r place, X'd either swear to tn