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Arkansas Department of Correction v. Shults

Supreme Court of Arkansas

November 2, 2017



          Leslie Rutledge, Att'y Gen., by: Lee P. Rudofsky, Solicitor Gen.; Nicholas J. Bronni, Deputy Solicitor Gen.; and Jennifer L. Merritt, Sr. Ass't Att'y Gen., for appellants.

          Williams & Anderson PLC, by: Philip E. Kaplan, Heather G. Zachary, and Alec Gaines, for appellee.


         Appellants, the Arkansas Department of Correction and Wendy Kelley, in her official capacity as Director of the Arkansas Department of Correction ("ADC"), appeal from the Pulaski County Circuit Court's order requiring the ADC to provide appellee Steven Shults with the pharmaceutical package inserts and labels for its supply of midazolam, one of the drugs in the State's execution protocol. For reversal, the ADC argues that the lethal-drug information requested by Shults is confidential and not subject to disclosure under the Method of Execution Act ("MEA"), Arkansas Code Annotated section 5-4-617 (Supp. 2015). In the alternative, the ADC contends that, even if the information is not confidential under the MEA, it is still required to redact certain information from the drug labels to protect the confidentiality of sellers and suppliers in the chain of distribution. We affirm in part and reverse and remand in part.

         Shults, an Arkansas resident and attorney, filed a complaint against the ADC on September 7, 2017, after it refused to provide him with public records pertaining to the State's supply of midazolam pursuant to his Arkansas Freedom of Information Act ("AFOIA") request. According to the allegations in the complaint, Shults submitted an AFOIA request to the ADC on August 21, 2017, seeking, in part, documents and records held by the agency after May 1, 2017, containing "the name of chemicals or substances intended or considered for use in lethal injection executions, manufacturer/compounder, concentration, expiration date(s) and/or lot numbers of all chemicals or substances intended or considered for use in executions currently in the possession of the ADC." On August 24, 2017, the ADC responded to the request by providing records revealing that on August 4, 2017, Kelley had acquired 4 vials of midazolam, a drug listed in its execution protocol. The ADC refused, however, to disclose the package inserts or labels for the newly acquired supply of midazolam because, it stated, these documents could be used to identify the sellers or suppliers of the drug in violation of the MEA. Shults alleged that the ADC's interpretation of the MEA was in violation of the clear language of the statute and of his rights under the AFOIA, that the ADC was not substantially justified in its refusal to provide the requested records, and that he was entitled to unredacted copies of the drug labels and package inserts.

         On September 18, 2017, the ADC filed a motion to dismiss the complaint under Arkansas Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(8) or, alternatively, for a stay of the proceedings pending the final resolution of a related case filed by Shults. The ADC argued that Shults had failed to state an AFOIA claim because the records he sought were specifically exempted from public disclosure by the MEA. According to the ADC, the lethal-drug labels and package inserts readily identify the drug manufacturers, who are also sellers and suppliers that are protected by the confidentiality provisions in the MEA. The ADC further argued that interpreting these provisions to include manufacturers comports with both legislative intent and public policy. In the alternative, the ADC asserted that, even if the circuit court concluded that Shults had stated a cognizable AFOIA claim, the court should order information such as lot and batch numbers to be redacted from the drug labels because it could lead to the identification of downstream sellers and suppliers.

         In support of its motion, the ADC attached the affidavit of Rory Griffin, the deputy director of Health and Correctional Programs with the ADC. Griffin stated that the ADC had attempted to comply with both the disclosure and confidentiality provisions of the MEA in response to past AFOIA requests; however, even when the ADC had provided redacted copies of lethal-drug labels and package inserts, some recipients had been able to determine the identity of the drug manufacturers by comparing the redacted labels and inserts to publicly available information. Griffin indicated that this is because each manufacturer's labels and package inserts are unique with respect to format, style, diction, font, organization, grammar, spelling, size, shape, coloring, and appearance. Given the unique character of drug labels and package inserts, Griffin stated that the only way for the ADC to comply with the confidentiality provisions of the MEA is to decline disclosure of these records entirely. In addition to the fact that the labels and inserts reveal the identity of the manufacturer, Griffin asserted that the lot and batch numbers on the drug labels can be used to trace the drug through the distribution and supply chain all the way to the end user, which in this case is the ADC. Thus, Griffin averred that the MEA absolutely prohibits the ADC from disclosing this information when responding to AFOIA requests.

         A hearing was held on Shults's complaint on September 19, 2017, and on September 22, 2017, the circuit court entered an order denying the ADC's motion to dismiss and granting Shults's request that he be provided with the unredacted midazolam labels and package inserts. The court disagreed with the ADC's interpretation of section 5-4-617 of the MEA, finding that the General Assembly did not intend to protect the identity of manufacturers of drugs used in the ADC's lethal-injection protocol. The ADC filed a notice of appeal the same day, and on September 27, 2017, this court granted its request for an emergency stay of the order pending appeal. We also granted Shults's motion to expedite the appeal.

         The ADC argues that the circuit court erred by ordering it to provide Shults with copies of the midazolam labels and package inserts because these records are not subject to disclosure under the MEA's confidentiality provisions. Thus, the issue presented on appeal is strictly one of statutory interpretation.

         We review issues of statutory interpretation de novo, as it is for this court to determine the meaning of a statute. Dep't of Ark. State Police v. Keech Law Firm, P.A., 2017 Ark. 143, 516 S.W.3d 265. However, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Hendrix v. Alcoa, Inc., 2016 Ark. 453, 506 S.W.3d 230.

         The primary rule of statutory interpretation is to give effect to the intent of the legislature. Keep Our Dollars in Independence Cnty. v. Mitchell, 2017 Ark. 154, 518 S.W.3d 64. We first construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Statutory language is ambiguous if it is open to two or more constructions, or if it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Dickinson v. SunTrust Nat'l Mortg. Inc., 2014 Ark. 513, 451 S.W.3d 576. When a statute is ambiguous, we must interpret it according to legislative intent, and our review becomes an examination of the whole act. Id. In conducting this review, we reconcile statutory provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Id.

         The MEA's confidentiality provisions relied upon by the ADC are contained in Arkansas Code Annotated section 5-4-617(i) and (j):

(i)(1) The procedures under subdivision (g)(1) of this section, the implementation of the procedures under subdivision (g)(1) of this section, and the identities of the entities and persons who participate in the execution process or administer the lethal injection are not subject to disclosure under the Freedom of Information Act of 1967, § 25-19-101 et seq.
(2) The department shall keep confidential all information that may identify or lead to the identification of:
(A) The entities and persons who participate in the execution process or administer the ...

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