In a rare 2-2 decision, the Indiana Supreme Court on Thursday affirmed the orders issued by Marion Circuit Court Judge Sheryl Lynch requiring the Indiana Department of Correction to produce public records related to substances used in Indiana to carry out executions by lethal injection.

The records were sought by Katherine Toomey in 2014 pursuant to the Indiana Access to Public Records Act. The Department of Correction denied Toomey’s requests, which led to the filing of a lawsuit in Indianapolis to enforce Toomey’s public access rights.

When the Supreme Court divides evenly in a case, Indiana’s appellate rules deem the last court’s decision affirmed. In this case, that was Judge Lynch’s set of orders granting Toomey summary judgment, denying the Department of Correction’s request to modify that judgment, and awarding Toomey legal fees incurred in bringing the lawsuit that led to the Supreme Court’s ruling on Thursday.

Judge Lynch initially granted summary judgment to Toomey in 2016, holding that the Department of Correction was required to produce its lethal injection public records under Indiana’s public-records statute. The Indiana General Assembly later amended the death-penalty statute to make certain information related to lethal injections confidential. The Department of Correction argued that the new confidentiality statute required Judge Lynch to change her judgment and rule in favor of the Department.

In rejecting this argument, Judge Lynch held the confidentiality statute violated several basic state and federal constitutional principles. Among these, the court concluded the legislative branch’s attempt to overturn a court judgment crossed the line of separation between the legislative and judicial branches.  Judge Lynch also criticized the confidentiality statute for violating the Indiana Constitution’s prohibition against “special” laws that single out only one or a few persons, or that include multiple unrelated subjects in one bill.

Additionally, Judge Lynch held the Department of Correction failed to meet procedural burdens to modify a court judgment and failed to satisfy the new statute’s evidentiary requirements.

Plews Shadley Racher & Braun attorneys Peter Racher, Josh Tatum, and Andrea Townsend represent Toomey along with Jeffrey Robinson of Lewis Baach Kaufmann Middlemiss in Washington D.C.  Toomey is an attorney in the Lewis Baach firm.

Racher stated, “The Supreme Court’s decision is a vindication of Indiana’s Access to Public Records Act. Ms. Toomey made her request for lethal injection public records back in 2014. Pursuant to APRA, she should have received all the records she requested. Judge Lynch ordered the Department of Correction to comply with Ms. Toomey’s request in 2016 and again in 2018. Now that the Indiana Supreme Court has spoken, we look forward to obtaining all the responsive records from the Department of Correction as soon as possible.”

The Reporters Committee for Freedom of the Press, the Society of Professional Journalists, and a variety of national and Indiana news organizations filed friend-of-the-court briefs in support of Toomey’s lawsuit to enforce Indiana’s Access to Public Records Act.

Read the Indiana Lawyer article here.

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