ARKANSAS DEPARTMENT OF CORRECTION and WENDY KELLEY, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE ARKANSAS DEPARTMENT OF CORRECTION APPELLANTS
STEVEN SHULTS APPELLEE
FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60CV-17-1419]
HONORABLE WENDELL L. GRIFFEN, JUDGE
Rutledge, Att'y Gen., by: Jennifer L. Merritt, Sr.
Ass't Att'y Gen., for appellant.
Williams & Anderson PLC, by: Philip E. Kaplan, Heather G.
Zachary, and Alec Gaines, for appellee.
R. BAKER, Associate Justice
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 potassium chloride, one
of the drugs in the State's execution protocol. On
appeal, the ADC contends 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. 2017). 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 in part.
March 23, 2017, Shults, an Arkansas resident and attorney,
filed a complaint against the ADC after it refused to provide
him with public records pertaining to the State's supply
of potassium chloride pursuant to his Arkansas Freedom of
Information Act ("FOIA") request. Shults alleged
that on February 9, February 27, and March 7, 2017, Shults
submitted FOIA requests to the ADC, seeking, in part,
documents and records held by the agency after November 30,
2016, 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 March 10,
2017, the ADC responded to the request by providing records
stating that on March 8, 2017, Kelley had recently acquired
100 vials of potassium chloride, a drug listed in its
execution protocol. The ADC refused to disclose the package
inserts or labels for the newly acquired supply of potassium
chloride because it stated that these documents could be used
to identify the sellers or suppliers of the drug in violation
of the MEA. Shults contended that the ADC's
interpretation of the MEA was in violation of the statute and
of his rights under the FOIA, 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.
March 29, 2017, the ADC answered and affirmatively moved to
dismiss the complaint. The ADC also filed a brief in support,
arguing that Shults had failed to state a FOIA claim because
the records he sought were specifically exempted from public
disclosure by the MEA. The ADC took the position that the
lethal-drug labels and package inserts readily identify the
drug manufacturers, who are sellers and suppliers protected
by the plain language of the confidentiality provisions in
the MEA. 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 FOIA 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 drugs' manufacturers by comparing the
redacted labels and inserts to publicly available
information. Griffin stated 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.
Griffin stated that, given the unique character of drug
labels and package inserts, the only way for the ADC to
comply with the confidentiality provisions of the MEA was to
decline disclosure of these records entirely.
March 30, 2017, the circuit court held a hearing on
Shults's complaint, and on March 31, 2017, the circuit
court entered an order granting Shults's request that he
be provided with the unredacted potassium chloride labels and
package inserts. The circuit court held that the General
Assembly did not intend to protect the identity of
manufacturers of drugs used in the ADC's lethal-injection
protocol. On April 3, 2017, the ADC filed a notice of appeal,
and we granted its request for an emergency stay of the order
briefing in this case was ongoing, Shults filed a nearly
identical FOIA complaint against the ADC with respect to its
refusal to disclose labels and inserts pertaining to
midazolam, another drug used in the execution process. The
circuit court in that case also ordered disclosure of the
unredacted records, and the ADC appealed. We granted a stay
of the circuit court's order and also granted
Shults's motion to expedite the appeal. Ark.
Dep't of Corr. v. Shults, 2017 Ark. 300, 529 S.W.3d
628 (Shults I). In Shults I, a majority of
this court affirmed in part and reversed and remanded in
part. Applying our rules of statutory interpretation, we held
that drug manufacturers are not included within the MEA's
confidentiality provisions. Id. We reversed,
however, the portion of the circuit court's order
requiring the ADC to disclose unredacted records.
Id. We remanded for the circuit court to determine
"which information must be redacted on the midazolam
labels and/or package inserts at issue." Id. at
10, 529 S.W.3d at 634. We now have the same issues before us
in this current appeal with respect to the ADC's records
pertaining to its supply of potassium chloride.
issue presented on appeal is strictly one of statutory
interpretation of Ark. Code Ann. § 5-4-617. 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. The primary rule of statutory
interpretation is to give effect to the intent of the
legislature. Keep Our Dollars in Independence Cty 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. In conducting this review, we will reconcile
statutory provisions to make them consistent, harmonious, and
sensible in an effort to give effect to every part.
Id. Furthermore, we will not read into a statute
language that was not included by the legislature.
(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 lethal injection; and
(B) The entities and persons who compound, test, sell, or
supply the drug or drugs described in subsection (c) of
this section, medical supplies, or medical ...