cAusE No. MAURIE, LE,VIN, NAOMI TERR, ANd HILARY SHE \RD, Plainffi, D-1 -GN-14-000908 s IN THE DISTRICT COURT OF ñ JJ ñ J ñ J \/ S TR,A.VIS COUNTY, TEXAS ñ J TEXAS DEPARTMENT OF' CRIMINAIJUSTICE, Defendant $ ñ J s 201,s'r JUDICIAT DISTRICT GREG ABBOT: Attorney General of Texas NICHOLE BUNKE,R-HENDERSON DANIE,L T. HODGE First Assistant Attorney General KARE,N D. MATLOCK DAVID C. MATTAX Deputy Attorney General for Defense Litigation DAVID A. TALBOT,JR. Chief, Administtative Law Division Deputy Chief, Administtative Law Division Chief, Law Enforcement Defense Division SHELLEY N. DAHLBERG Deputy Chief, General Litigation Division Office of the Texas ,\ttotney General P.O. Box 12548, Capitol Station Austin, Texas 7 87 11, -2548 Telephone: (512) 475-4300 Facsimile: (512) 320-01,67 Attomelsfor Defendant Texas Depaøment of Criminal Jastiæ TABLE OF CONTENTS SrarevnNT oF tsn C¡sp 1 B¡crcnouND ........ GnouN¡ pon Sulvn¿¡nv JuocvnNr 4 Exrrrerts rN SUPPoRT .......4 Sr¡rnuBNT oF F¡crs.. 5 A. Summary Judgment............ l B. Public Information Act, Physical Safety Exception... 8 Suvnvmnv oF THE ARcurvrpNr 9 AnculrpNt I. The Department's experts' testimony 1,1 establishes that the information must be withheld under the physical safety exception and, thus, the Court should summary judgment in favor of the Department. graLnt l2 A. The testimony of the Department's witnesses is "clear,positive and direct, otherwise credible and free from contradictions and inconsistencies" and supports summaly judgment in favor of the Departmeflt on the physical safety exception. ..... I2 1. Testimony of Department Director Brad Livingston and request for the threat assessment ... 13 2. Testimony of DPS Ditector McCraw t7 4. Summary of Expert Testimony.... 2t B. The supplier of the execution drugs is entided to the same confìdentiality as other members of the execution team.. 22 C. Balancing the need for public information along v¡ith the common law right to physical safety requires withholding the identity of pharmacy/pharmacist in this case the 23 II. Plaintiffs are not entided to attorney's fees because the Department relied on the Attorney General's ruling to withhold the information at ......24 issue. CoNcrusroN AND PR;tvER CnRrprc¡TE oF sERVrcE 25 .. ..... ll CAUSE NO. D-1 -GN-14-OOO9OB MAUruE, LEVIN, NAOMI TE,RR, ANd HILARY SHEARD, Plainffi, IN THE DISTRICT COURT OF s s s ñ J V TRAVIS COUNTY, TEXAS s c S TEXAS DE,PARTME,NT OF CRIMINAL JUSTICE, s ñ .\) Defendant 20 s 1 ST' JUDICIAL DISTRICT DepentvrENT's MotroN ron Sunrnreny JuocueNt COMES NOìø, the Texas Department of Criminal Justice (the Department), Defendant in the above cause, and files its Motion For SummaryJudgment. SterBuBNT oF THE CASE This is a suit brought pursuant to section 552.321. of the Public Information Act (PIA), TEX. Gov't Co¡B ch.552, in which Plaintiffs seek information at issue in OR2014-091,84 deciding, S inter aha, that the Department rrrãf, pursuant to PIA 552.101, withhold the information identi$'ing the pharmacy and pharmacist that suppìied pentobarbital to the Department based on the physical safety exception. The Department is not subject to mandamus pursuant to section 552.321, of the PIA because the Department has not refused to supply public information. The Department sought and obtained a decision from the Attorney General's Open Records Division which determined that the information is confidential by pursuant to the corrìrrron law right to physical safety as set out I law in Texas Depanment of Pablic SoftA ,. Cox, 343 S.\)7.3d 112 Çex. 2011) (holding exception under that the physical-safety PIA S 552.1,01, encompasses the absolute right to be free from physical harm). BRcrcnouND 1,.1, Plaintiffs arc Maune Levin, Naomi Terr, and Hilary Sheard (the "Attorney- Requestors") who made a PIA request for information on March 1,8,2074. See Ex. A. to Pl.'s Orig. Pet. 1,.2 The Department is the Defendant. O"ly certain individuals within the Department know the identity of the state-licensed compounding pharmacy (and its pharmacist) that supplies the pentobarbital to the Department. 1,.3 Plaintiffs' suit is brought pursuant to PIA S 552.321, and seeks to mandamus the Department to produce that closely-held identifying information about the state-licensed compounding pharmacy and pharmacist that supplied the Department u/ith pentobarbital to be used in executions scheduled on or. after April 3,201,4. TBx. Gov't Cooe ch.552. 1,.4 None of the Department's trial or appellate counsel have obtained or accessed the information at issue in this case. The Department has not provided the actual identifiing information at issue to the Department of Public Safety, or any other expert witness in this case. 1,.5 The only information remainrng ^t issue in this lawsuit is the identity of the Iicensed compounding pharm cy and its pharmacist (information at issue). The 1 Department has released all other information that the Plaintiffs requested on March 18. The Department has also divulged that the pharmacy is a licensed compounding pharmacy open to the public and is located in an urban area of. a Texas city. 1.6 See Ex. 3, Affidavit of Brad Liúngston. On March 25,201.4, the Department sought an open records decision from the Texas Attorney General about whether that information was confidential by law pursuant to the physical-safety exception set out tn Texas DepaXnent of Pablic Softa u. Cox,343 S.\7.3d 1,1,2 C.*. 201,1) (holding that the physical-safety exception under PIA S 552.1,01, encompasses the absolute physical rþht to be free from hut-) 1,,7 On May 29, 201.4, the ,\ttorney General issued letter ruling OR201,4-091,84 deciding, inter aha, that the Department may withhold the information, 1,1, and 18, identi&t"g the pharmacy and pharmacist that supplied pentobarbital to the Department based on the physical safety requested on March exception set out in Cox,343 Arr'Y GnN. OR201 S.fØ.3d 1,1,2 pursuant to PIA $ 552.101. Tex. 4-091,84. 1.8 The Department has propedy relied on OR2014-09184 to withhold the confìdentialinformation at issue in this lawsuit, i.e. the identity of the pharmacy and pharmacist that supplied pentobarbital to the Department. a J GnouNo ron Suuvenv JuocnaeNr The identity of the pharmacy and pharmacist that supplies pentobarbital to the Department is confidential by law under the physical safety exception because release of the information would create a substantial threat of physical harm to the pharmacy, pharmacist, employees, customers, and public Exnrsrts rN SUPPoRT The Department relies on the following exhibits: 1,. 2. 3. 4. 5. 6. 7. 8. 9. OR2014-091,84 (lvlry 29, 201,4) DPS Threat Assessment (À4arch7,2014) March 27,201,4 Affidavit of Brad Livingston April 8,201,4 Affidavit of Brad Livingston Department's Disclosure of Opinions ofJ. Lawrence Cunningham The Pentobarbital Experiment Blog ("exploding head blog') Emails Re: \ùØoodlands Pharmacy Prof. Humez Threat to Tulsa Apothecary Shop Prof. Humez Email to Levin 10. CV ofJ. Lawrence Cunningham 1L. November 1.2,201.4 Affidavit of J.Lzwrence Cunningham 1,2. November 6,201.4 Affidavit of DPS Director Steven McCraw 13. November 6,201.4 Affidavit of Brad Livingston 1,4. Deposition ofJ. Lawrence Cunningham, excetpts 15. Deposition of DPS Director Col. Steven McCraw, excerpts 16. Deposition testimony of Brad Livingston, excerpts 17. Plaintiffs' Disclosure of Opinions of Thomas Parket 18. Cox u. DPJ Orders on SummaryJudgment 19. Redacted Voucher for Pentobarbital 20. Deposition of Thomas Parker, exce{pts 21,. Memo Regarding Oct. 9, 201,3 protest of \il/oodlands Pharmacy 4 StetrvreNT oF Fecrs 1,. In the fall, of 201,3, the lØoodlands Pharrnacy was publicly disclosed as the supplier of the execution dn:g, pentobarbital, to the Department. 2. Thereafter, the !Øoodlands Pharmacy teceived a significânt amount of hate mail directed atJasper Lovoi, the compounding pharmacist. Ex.7 3. On October 9, 201,3, the Department's Office of Inspector General (OIG) learned of a protest planned at the pharmacy. Both OIG employees and local law enforcement offìcers went to conduct surveillance and investigation at the protest to ensure safety. 8x.21,. 4. In addition to the email threats, the Department of a blog post ^w^re depicting an exploding head that contained excoriating comments directed at Jasper Lovoi. Ex. 6. 5. InJanuary became Nick Humez sent an email to the Apothecary Shop in Tulsa, after. that pharmacy was disclosed as a possible supplier of the execution drug, suggesting that they beef up secudty because of the likelihood that someone might drive a truck load of ferti\zer up the shop just like at the federal building. "In your place, I'd either swear to the nation that my company didn't make execution drugs of ANY sort, ând then make dang sure that's true, or else openly accept the burden of putting my employees and myself at unacceptable (and possibly uninsurable) risk. Just sàyírt'." Ex. 8. 201,4, 6. The FBI apparenùy contacted Mr. Humez to investigate Flumez's threat to the Apothecary Shop. Ex. 9. Humez discussed the context of his January 201.4, email to the Apothecary Shop in an email with Plaintiff Levin. Humez's email reaffirms the Departrnent's experts' opinions that the email was properþ treated âs a potential threat. Humez stated to Levin: I wanted to make clear that now that it was generally known that the Apothecaly Shoppe was in fact supplying such toxins, even if they did not see it as simply wrong, they needed to be aware that many others did, and that some of them might be dangerous to them, their employees, and the surrounding bystanders if even one fanatc (a term nobody ever uses to describe himself, note) with a rudimentary knowledge of improvised explosives chose to go on the attack. I felt, and thought I had made it clear, that they would be reckless not to consider this possib:Jrty and to take 5 appropriate action at the very least to protect against it, as I would sutely do wete I in their place. **** But I suspect that he and I are the only ones who seriously believe that thee [sic] is a real risk here, and even then my own belief in it is both conjectural and lacking in the weight of evidence to support it. Nevertheless, I do know that there are extremists in the right-to-life movement who would regard destroying a death drug factory as equally justified with blowing up an abortion clinic or (ur one highly intelligent Catholic convert I know put it) bombing the tracks that led to Auschwitz. Ex.9. 7. The Department learned of Humez's emall thteat to the Tulsa Apothecary Shop in late winter (during February 2014) when the Department was in the d*g. Fx. 16 1,2-1,3. ^t Mr. Livingston became concerned about the safety of the process of shopping for a new ptovider of the execution pharmacy/pharmacist that would supply the drug based on number of ^ NØoodlands factors, including the threats and protests directed at both the Phannacy and the Tulsa '\pothecary Shop, knowing that there would a PIA request for the identity of any new supplier. Ex. 16 at 30-35. Mr. Livingston then requested that Director McCraw conduct a threat assessment about the threat of physical harm against pharmacies or drug suppliers that might supply the execution drug to the Department. Ex. 1,6 at 30-35. The threat assessment would be needed quickly based on potential Public Information Act requests that would occur once the Department purchased the drugs. Ex. 1 6 at 30-35. 8. Plaintiffs requested, pursuant to the PIA, the identity of the pharmacy/pharrnacist suppþing pentobarbital to the Department on March 1L, 201,4, and filed this suit on March 27,201,4. 9. Pursuant to section 552.301, of the PIA, the Department requested a ruling from the Attorney General as to whether the identity of the pharmacy/pharmacist supplying pentobarbital to the Department was confidential and excepted from disclosure under the physical safety exception. 6 10.The Department provided the Attorney General a threat âssessment prepared by the Director of the Department of Public Safety (DPS) concluding that the release of the information at issue would pose a substantial threat of physical harm if released. Ex.2. 11.The Attorney General ruled that the information was confidential by law. Ex. 1 12.The Director of DPS conducted a threat assessment using his training and extensive law enforcement experience and knowledge, based on documents provided by the Department, so that the Department could provide the information to the Attorney General quickly as required by the PIA. See Tpx. Gov't Coon 552.30L. he documents reviewed by the Director Exs. 6, ^re ^r. 7 ,8. 1,3.In addition to the threat assessment conducted by the Director of DPS, the Depatment retained a thteat âssessment expert, J. Lawrence Cunningham, (a retired Secret Service agent), to conduct a comprehensive threat assessment for the purpose of this litigation. Exs. 5, L0, 1.1. 14. Both the Director of DPS and Mr. Cunningham have concluded that there is a substantial threat of physical harrn if the identity of the pharmacy/pharmacist is publicly disclosed. Exs. 2, 3,1.1,,12,1.4, L5. SteNoeno oF REvrEsr/ A. Summary Judgrnent Summary judgment must be granted when the moving p^rß/ demonstrates, through affidavits, pleadings, discovery responses, and other records, that there is no genuine issue as to any matenal fact and that the moving p^rty is entitled to judgment as a matter of law. Tex. R. Civ. P. L66a; Ci4t of Hoaston Austin 1990,writ denied) 7 u. Clear Creek Basin Aath.,589 A defendant one element of seeking summary judgment must negate as a matter of law at least each of the plaintiffls theories of recovery or plead and prove as a matter of law each element of an afftrmative defense. Centeq Rea/fl, Inc. a. Siegler, 899 S.!ø.2d 195, 197 (Tex. 1995). If the defendant establishes its right to summaly judgment, the plaintiff must then raise a fact issue. Id. \Mhen both panies have filed motions for summary judgment, "each p^rq bears the burden of establishing that it is entitled to judgment as ^ m^tter of law." Ciry of Garland u. Dallas Moming News, 22 S.W.3d 351., 356 (Tex. 2000); Ci4t of Fort IYorth u. Corn1n,86 S.S7.3d 320, 322 (Tex. App.-Ausin 2002, no pet.). B. Public Infotmation Act, Physical Safety Exception Relevant here, the question of whether the information sought to be disclosed is subject to the PIA is a question of law for this Court. Ci4t of Garland, 22 S.W.3d at 357. The central question in an opefl records case such as this one is always the same: that is, is the information being sought subject to an exception to disclosure?1 As the p^rq seeking to withhold the identity of the pharmacy and pharmacist in this matter, the Department has the burden to prove that an exception to public disclosure applies.2 t Gilberl,43 S.ì7.3d 789,793 (Tex. App.-Austin 2001, no pet.) ("The issue before [the court] is whether the information qualifies for an exception under the Act"). t See also Dominguequ. App.-Ausan 2002, no pet.); App.-Austin 2001, no pet.). Thomas u. Corn1n,71 S.!ø.3d 473,4BB-90 (Tex. Di:t. a. Tex. Att)t Gen.,37 S.W.3d 152,157 (Tex. 8 Arlingron Indep. Sch. There is one appellate decision applylng the PIA's physical safety exception; that is the Texas Supreme Court's Cox opinton. In that case the Court held: To the extent DPS can show, with detailed euidence or expert testimonl, that reuelation sabstantialþ threatens harn-as it has with retpect to the nanber of guards protecÍing the gouernoy-¡þq the inforrnation at issae ma1 be withheld. A certatn amount of deference must be afforded DPS officers and other law enforcement experts about the probability of harm ... Flh. public's right to "complete information" must yield when disclosure of that information would substantially thteaten physical harm. On remand, the trial court must ascertain, under this standard, what information may be confìdential and what must be disclosed. 343 S.\7.3d 11,2 ^t 1.1,9 granted DPS's motion (emphasis added). On remand for to the trial court, the court summary judgment and affirmed the withholding of the voucher information pursuant to the physical safety exception. Ex. 18. Sunrvr¡nv oF THE AncuuBNt The Court must gï nt summaly judgment in favor of the Department because the testimony of the Depattment's expert witnesses, including the Director of the DPS, provides clear, credible opinion testimony-based on nearþ 80 yeârs of combined law enforcement experience-concluding that disclosure of the identity of the pharmacy and pharmacist that supply drugs used in executions to the Department would create a substantial threat of physical harm. No party in this case argues that a person can predict with certainty that harm will occur if information is released. Such an assertion would de$r reason because humans are by nature extremely unpredictable. Plaintiffs argue that the three pieces of document^ry evidence in this case are insufficient 9 to establish the applicabiJity of the physical safety exception. Plaintiffs argue that the threat of harm is remote because no other pharmacy suppþing execution drugs has suffered an attack yet. The Plaintiffs by their argument urge the Court to conclude that the physical safety exception test can be met only where there is an established history of violence. The Supreme Coutt, however, does not require that the Departrnent prove that harm has occurred or even will, with certainty, occur. Id. at 1,1,9. The Department must show only that there is a substanial threat of physical harm based on law enforcement and expert opinions. The Department has satisfìed this burden based on the testimony a¡d opinions of DPS Director Steven McCraw and J. Lawrence Cunningham, individuals with vast law enforcement uaining and experience, including expertise in providing threat assessments in both the public and, private sector, who both testified that there is a subsønnal (significant) threat of physical harm to the pharmacist, pharmacy employees, their families, customers, and bystanders pharmacy if the identity of the or pharmacist is pubìicly disclosed. Plaintiffs' own expefi (an avowed member and Board member of a death penalty abolition group) did not conduct his own threat assessment or conduct any independent research. Thus, as ^ m tter of law, under the holding of Cox the Court must defer to DPS Director McCraw and Mr. Cunningham's expert witness testimony. Id. Plaintiffs have failed to overcome or adequately refute the deference owed to the Department's experts. l0 AncunaBNt The identity of the pharmacy and pharmacist suppþing drugs used in the execution process is confidential by law and must be withheld putsuant to the physical safety exception in this case. Directot McCtaw's testimony establishes that a licensed compounding pharmacy that is open to the public and located in an urban area of Texas City is a "soft target" and extremely vulnerable to a attack by a person directing violence at the pharmacy or a pharmacist. Director McCraw was able to easily locate a signifìcant amount of information about the SØoodlands pharnacy employees and their family members from open sources on the Intetnet.3 Based on his decades of law enforcement experience and application of his threat assessment methodology, Director McCtaw was able to readily ascettain that public release of the identìty of the pharmacy and pharmacist would result in a substanial threat of physical harm. Mr. Cunningham, who also has decades of law enfotcement experience training as and well as extensive public and pnvate thteat assessment experience, reviewed the Director's testimony, conducted his owrr research, investigation, a¡d threat assessment analyzíng the issue based on his skills and experience. Mr. Cunningham concluded that release of the information at issue would result in a substannal threat of physical harm. Both Director McCraw and Mr. Cunningham testifìed that in their professional judgment, and based on their collective decades of experience i The l7oodlands Pharmacy supphed the execution drugs to the Department until fa[, of 2013,when they were publically disclosed as the supplier of the execution drugs and subjected to threats and harassment. Exs. 6,7 . l1 performing threat assessments and analyzing security threats, that when the risk involves injury or potential loss of human life, the threat must be avoided through a proactive approach. Ex. 14 atp. 1,2,30,79,208,21,2; Ex. 15 at pp. 72,74. Based on the testimony of the Department's expert witnesses, the Court should conclude that the physicù safery exception applies to the very naff.ow withholding of information in this case. I The Departmentts experts' testimony establishes that the information must be withheld under the physical safety exception and, thus, the Court should graît summary fudgment in favor of the Department. The material facts in this case are undisputed. As a matter of law, the Court must give deference to the Director of the Depatment of Public Safety when he testifies that the documentary evidence and his opinion-based on his application of the RAND methodology-demonstrate a substantial threat of physical harm if a provider of the execution drug is publicly identifìed. Cox,343 S.Nø.3d at 119. The Court should gra;nt the Department's motion fot summary judgment and deny the Plaintiffls motion for summary judgment. A. The testimony of the Departmentts witnesses is "clear, positive and ditect, otherwise credible aîd free from contradictions and inconsistencies" and suppotts summary judgment in favor of the Department on the physical safety exception. The Department presents the deposition and afftdavit testimony of witnesses three in this case, two of which are experts in law enforcement. Director McCraw, Director of the Texas Department of Public Safety, testifies t2 ^s ^ non-palrq, unretained expert and Mr. Cunningham testifies as a retained expert witness for the Department. The Department also offered the testimony of its Director, Brad Livingston. The testimony of an interested expert is sufficient to support summary judgment in favor of aparty when the: trier of fact would be "guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex.R.Civ.P. 1,66a(c). The afftdavtt of an intetested expert witness c n support suÍìmary judgment if it meets the requirements of Rule 1 66a, even if that expert is a patty to the suit. Anderson u. Snider,808 S.ìø.2d 54,55 (Tex. 1991); accord Unind Seras. Auto A¡s'n 1,75 S.\7.3d 457, 46 (Tex. App.-Dallas 2005, no pet.) (holding that ,. Croft, expert's testimony that was based on his knowledge, training, and experience was not conclusory and suppotted summary judgment). In this case, the Department offered the testimony of a retained expert, but also pursuant to the Supreme Court's holding in Cox, offered the testimony unretained, non-party expert of the Director of DPS, who unlike in in this case. Cox, 343 S.!7.3d ^t Cox, is an 1,1,9. Based on the testimony of these witnesses and the deference afforded the Director, the Court must gr^nt the Department's motion for summary judgment and deny Plaintiffs'motion. 1,. Testimony of Department Director Brad Livingston and request for the threat assessment DPS is not a p^rry to this case. Director McCraw does not report to Brad Livingston, the Director of the Texas Department of Criminal Justice, nor does Mr. Livingston report to Director McCraw. Ex. 13. Director McCraw prepared a fhreat 13 assessment for the Department in the late winter of 2014, at Mr. Livingston's request. Exs. 3; 16 at 12-1,3. Mr. Livingston became very concerned after the \X/oodlands Pharmacy and Jasper Lovoi were disclosed as the supplier because the pharmacy and pharmacist became the target great deal of negative attention. Mr. Livingston of of the execution drug threats, protests, and a became further alarmed after the Department learned of the threat to the Tulsa Apothecary Shop. Mr. Livingston summarized his coflcerrì: The context included security risks that arc inherent in in the criminal justice wodd that had escalated in general and specifically over the last number of months and years to include at that point we're just rougtrly a ye r temoved ftom the director of the Colorado Department of Cortections being assassinated on March the 19th, 201,3. At that same time there were specifìc death threats to me, both just priot to the Executive Director in Colorado's assassination and just shordy after it. *** compounding pharmacies, it's different ^ magnitude and a different reality. For example, those harassing E-mails, which on their face m^y not specifically reference violence, they are very personahzed. They reference indivrduals by name. They reference the location or proximity of that pharmacy to their homes. So what that said to me was while these harassing E-mail-s weren't in and of themselves a threat of physical violence, it puts a r,'ulnerable, real face on the individual and the pharmacy, and a storefroÍrt, a location, an ofîrce, an A transition to individual. Ex. 16 zr33-35. Mr. Liúngston requested the threat assessment from the Director based on the Director's position as the head of the DPS, the officer in charge of protecting public t4 safety. Exs. 3; 1.6 at31-35. Prior to the request f.ora threat assessmentin late winter 201.4, Mr. Livingston had not discussed the issue of death penalty drug supplier with Director McCraw. Ex.16 ^t 31.. Mr. Livingston indicated that the information was needed quickly based on a need to protect the identity and safety of a pharmacist that would supply execution drugs to the Departrnent. Exs. 3; 16 at 12-1,3;35-36. \When information is requested under the PIA, the timelines fot responding to a request or seeking S a ruling from the Attorney General are very short. TEX. Gov'T Cooe 552.301. A governmental body, including the Department, has only ten days to produce the information or request a ruling from the Attotney Gener.aI,and only business days assertion 15 in which to provide fulI briefing including any evidence supporting of the physical safety exception. Tpx. Gov'T CooB S 552.301þ), (.). In this case Mr. Livingston became concerned about the safety of a supplier of the execution drug after the protests at the \X/oodlands Pharmacy in fall of 20L3, and after the discovery the Apothecary Shop threats rn 2014. Exs. 3; 16, at 13, 31-36. Mr Livingston believed that a threat assessment was necessary in order to ensure that any pharmacist that sold execution drugs to the state would not be subject to violence. Exs. 3; 16 at 13,31-36. It is undisputed that the Department sought a Threat assessment from DPS in order to demonstrate the applicabiTty of the physical safety exception to the identity of the compounding pharm^cy in this case. Absent a PIA request, the Department would continue to lawfully maintarn the confidentiahty of the information at issue l5 The Attorney General open records letter ding process and the Supreme Court's ruling in Cox require evidence in support of the applicability of the physical safety exception. Cox,343 S.\ø.3d at 1.19; OR2014-091.84 at 2-3. Ex. necessity, the Director quickly conducted a. threat 1. Therefore, by assessment based upon the information provided by the Department, his research of open source information about the Woodlands Pharmacy and its employees, and his extensive law enforcement training, experiences, and knowledge. Ditector McCraw testified that he did not need ^ gre t deal of time to conduct the threat assessment based on the information provided, along with his prior experience in conducting threat assessments and head of the Department of Public Safety. Ex. 1.2 at]¡127; Ex. 15 atp.70. as Neither Director McCraw, nor DPS, has any direct interest in this litigation. Director McCraw was able to, and did in fact, conduct the threat assessment quickly as required by the holding of Cox and the statutory mandates of the Gov't Coop PIA. Cox,343 S.lø.3d at 1.1.9; Tnx. S 552.301. Mr. Livingston has reviewed and telied upon the testimony and opinions of Directot McCraw andJ. Lawrence Cunningham in support of his continued concern that public disclosure of the identity of the pharmacy /pharmacist supplying the death penalty drug would likely subject the pharmacy /pharmacist to violence. Exs. 3, 4, and 1,3. 16 2. Testimony of DPS Director McCraw Steven McCraw, the current Director Safety, previously served as the Director retited from the of the Texas Department of Public of Texas Homeland Security and is also FBI. Ex. 1,2. DPS is rìot a p^rq in the case and the Director is neither a party witness, r,.or a retained expert. Director McCraw conducted his own threat assessment in this case pursuant to a request from Mr. Livingston, who called upon Director McCraw in his professional capacrty as the Director of DPS. The Director conducted this thteat assessment without the use of additional DPS personnel. He has experience conducting thteat assessments and was able to complete the assessment using documents provided by the Department, open source information, and his nearþ 40 years'experience, training, and skill in law enforcement. concluded that there 'was a signifìcant or substantial threat of physical harm that would result from the public disclosure of the pharmacist suppþing the execution drugs to the Department. Bxs. 2; 12; 1,5 at pp. 21,22,24,70. \X/hile the Director's threat assessment was prepared based on the threats and information avaiable about the ìØoodlands Pharmacy, the Director's assessment was equally applicable to tetail compounding phatm^cy. Ex. 15 at 22. The Director is ^ ^rry flon-pa;rty, unretained expert witness in this case. The Director is qualifìed to offer expert testimony in this case as the Director of the DPS, with neady four decades of experience in the public law enforcement field, including crime ptevention, detection, and threat assessments l7 Ex. 1,2. The Court must afford due deference to Director's McCraw's testimony and opinions in this case. Cox,343 S.!ø.3d ^t 1,1,9 3. Testimony ofJ. Lawrence Cunningham Mr. Cunningham conducted his own independent threat assessment where he: (1) reviewed the documentary evidence related to the lØoodlands Pharmacy; (2) conducted and reviewed research on similar issues such as abortion opponents, antrnal rights activism, and similat topics; and (3) based his assessment on his 40 years' experience conducting threat assessments in the public and private sector. Ex. 1,4 \7hile both Director McCraw and Mr. Cunningham reviewed the document^ry evidence of threats and mail received by the Apothecary Shop and the Woodlands Pharmacy, Mr. Cunningham (who had the benefit of longer deadlines) conducted more detailed, comprehensive threat assessment in this case. Mr. Cunningham a examined a number of factors in developing his opinion in this case, including but not limited to: (1) the increase in cdme generally, including shootìngs and bombings, and an increase in terror cells; Ex. 14 at pp. 127-129. (2) the sociopolitical climate surrounding certain issues of passion, including the amount of violence related to and directed at abortion clinics, abortion doctors, and businesses and universities involved in animal research; Ex. 14 at pp. 92, 1,53,1,72,225. (3) the volatilty and overall risk of violence surrounding prisons generally and the death penalty specificallyi Ex. 1,4 atp.253. 18 (4) the contagion effect that causes increased interest in an area, such as the attention to the execution process after the botched executions in Arizona and Oklahom a; Ex. 4 at pp. 7 9, 80, 82, 92, L56, 17 0, 250. 1, (5) there is insufficient data of violence against compounding pharmacies suppþing the execution d-g to predict the risk of violence because compounding pharmacies quickly withdraw ftom the market once publicly identified. At the same time, the reduction in targets results in actually increasing the risk to the temaining targets; Ex. 1.4 at pp. 172-173. (6) the Intemet þas provided greater access to methods and materials by which people c n c rry out violence, as well as the mechanisms to spread the message to death penalty opponents and recruit additional members to these groups; Ex.1.4 atp.170. (7) predicting who will perpetrate violence in these types situations is almost impossible since those who perpetrate such violence often times give no prior warning or prior threat; Ex. 1,4 at pp. 35,79,82. (8) often the perpeft^tor of violence in these types or warning prior to an attack; Ex. 5 atp. 5. of cases do not provide threats (9) there are few wâys to prevent violence or protect a pharmacist, pharmacy a retatl. pharmacy. employees or bystandets who may be subject to violence ^t Ex. 11; Ex. 12at[ 22. Mr. Cunningham provided statistics documenting violence against abortion clinics during the past 38 years: I will tell you that in -- from '77 to 201.3, there were eight murders, 1,7 attempted mutders national nationwide, 181 arsons, 42 bombings, 1.,495 vandalisms, 2482 trespassing, hundred acid attacks, 428 death threats, 1,5,934 hate mails or^ harassing cails, 170,71,0 picketing, 61.6 -- 61 [sic] bomb threats, and clinic blockades. Now, of that,33,839 arrests were made. Ex. 14 at p. 1,72. Mr. Cunningham testifìed that pro-life and atrimal rights groups are the best avarfable comp^r^tor group for violence that would be targeted against death 19 penalty participants. Mr. Cunningham stated that there is available data set for execution drug suppliers because the phar:rnacies historically quit suppþing the drug as soon as it becomes publically disclosed. Mr. Cunningham stated: I'm saying the compounding companies don't have a history. They're shutting down. They're scared. It's not good business practice to be in this business for whatever reason. Both internationalTy and domestically, they've withdrawn. ì7e simply don't have a data base to rely on, but what we can do is we can make the extrapolation saying, look, these kinds of issues, these yery volatile. People get upset. People kill pro-Iife issues, ^re people. People demonstrate. They are They bomb. The compounding companies don't have that history yet because they're shutting down. Ex. 14 at p. 1.73. Mr. Cunningham was asked, "[t]o your knowledge has there ever been any violence in this country at a pharmacy involving lethal injection drugs?" Mr. Cunningham sunünarized his professional opinion in this case in reply: A. Not to my knowledge at this point; however, I go back to the fact rhat they have withdrawn and there's not a history enough to say that it wouldn't happen. It hasn't happened yet, but there's compelling information that ne^son ble person taking this in ^ total would believe there is a substantial threat. Q. Substantial threat of physicalharm. A. Of physical harm or bombings or -Q. Ot worse. A. Well, worse being a larger explosion, a larger simultaneous terrorist type that's happening -Ex.1.4 atp.1.90 20 4. Summary of Expet Testimony (a) Director McCraw and Cunningham testified that there was a signifìcant or substantial threat of physical harm in this case if the identity of the retail pharmacy that supplies the death penalty drug is released. Exs. 2; 12;15 at pp.16-19,24-25. þ) Director McCraw and Cunningham testified that the reconrnended and prudent law enforcement practice demands a proacttve approach to threat avoidance when the threat could result in physical injury or loss of life. Ex. 12 atÍ 20;8x. L4 at pp. 12,30,79,8L,208,21,2; Ex. 15 at pp. 72,74. (c) Director McCraw and Cunningham testified that the email from Nick Humez to the Tulsa Apothecary Shop should be considered and fteated a threat. Exs. 8, 9; Ex. 1,2 atÍ119;Ex. 1,4 at pp. 11.6,11,9-124,128,144-145; Ex. 15 atp.41,. (d) Director McCraw and Cunningham testified that human tendencies toward violence are unpredictable, and that no person can predict u/ith certainty when violence will or will not occur, though certain threats or actions taase a serious concern about the risk of violence. Ex. 1,2 atn24; Ex. 15 atp.30. (e) Director McCraw and Cunningham testified that the contagion effect, which results from Internet communication, increases the potential for fanancal violence in matters involving co ntroversial is s ues . (f) Directot McCraw and Mr. Cunningham relied upon their research, skills, experience, and training to conclude that "issues of passion" such any ^s area involving the loss of life g rnen signifìcant negative attention and inherently pose a threat of violence. This is especially significant because the provision of the execution drug to the corrections department is very controversial in that it involves both the prison or criminal population and the loss of life. 8x.1,2 (g) ^t1126. Mt. Cunningham relied upon FBI statistics, and his research and teaching, to opine that there is an overall increase in crime, including shootings and bombings. Ex. 14 atpp.127-129. (h) Mr. Cunningham reviewed Nick Humez's email communications to opine that Nick Humez's emails should have been, and were rn fact, propedy 2t treated as a potential threat of violence against a supplier d*9. Ex. 14 at pp. 116,119-1.24. B. of the execution The supplier of the execution dtugs is entitled to the same confidentialtty as other members of the execution team. Prior to the Supreme Coutt's opinion in Cox, the Attorney General applied what was known âs the "special circumstances test" to require the Departrnent to withhold the names of individuals who were present in the death chambet during an execution-u/hich included medical personnel-based on a conclusion that release of the information would place the individuals in imminent threat of physical danget. TBx. AT-r'y GeN. OR2008-15565. Prior to the Cox oprnron, the Attorney General opined that "'special circumstances' to refer to a very narrow set of situations in which the release of information would likely cause someone to face'an imminent threat of physical danger."' Id. While it is the physical safeqr exception set out in Cox that is applicable in this case, and not the special circumstances test previously applied to require the confidentiality of members of the execution team, the rationale is the same. This Court should find that the pharmacist (and the employees, customers, and bystanders of the retail pharmacy) require the same level of protection as members the execution team, based on the testimony of the Department's experts in this case. 22 of C. Balancing the need for public information along with the common law right to physical safety requires withholding the identity of the pharmacy/phannacist in this case. In this case, the Department seeks to withhold only the identity of a single vendor based on the physical safety exception. The Department has aheady released the voucher for the purchase with the vendor identity redacted. Ex. 19. \X/hile the Department does not dispute thât the information at issue is core public information, the Supreme Court's opinion in Cox higtrlighted the dividing line between disclosure and restraint, based on striking abalance between the public's right to know how the state spends money and ptotecting the safety of its citizens. Cox, 343 S.\í.3d Flere, as in ^t 119 Cox, the Department has shown that withholding the information is justified by u substantial threat of physical harm if the remaining information is released. The Department has released the voucher with the vendor identity redacted and the complete information for the testing laboratory that Plaintiffs sought. The need to know the only remaining piece of information-the identity of pharmacy/pharmacist that supplied the execution substantial threat of physical harm in this case 23 drug-is outweighed by the the not entitled to attotney's fees because ^re Department relied on the Attorney General's ruling to withhold II Plaintiffs the the information at issue. Section 552.323 of the PIA authorizes a court to award attorney's fees when plaintiff substantially prevails in a suit for writ of mandamus under section the PIA. TBx. Gov't Coop [T]h. court may not body SS 552.321 552.321. a of , .323. Section 552.323, however, provides: assess those costs and fees against â governmental if the court finds that the governmental body acted in reasonable reliance on: (1) a judgment or an order of a court applicable to the governmental body; (2) the published opinion of an appellate court; or (3) a written decision of the attomey general, including a decision issued undet Subchapter G of opinion issued under Section ^n. 402.042. TBx. Gov'T Coop \ 552.323(a). Supreme Court's opinion In this case, the Department has relied upon the rn Cox, 343 S.N7.3d 112 and upon TBx. Aïf'y Gp,N. OR2014-09184. Because the Attorney General ruled that the information was confidential by law and therefore must be withheld, the Plaintiffs cannot show that the Department has refused to supply public information, nor entitlement to attorney's fees because the Depattment relied upon Cox and OR2014-09184. As rrratter of law, the Court must deny Plaintiffs'request 24 for attorney's fees in this case. a CoNcrusroN AND PReysn Plaintiffs cannot refute the Department's entitlement to summary judgment based on the showing of a substznttal threat of physical harm in this case. Plaintiffs have focused their arguments and evidence primarily on the question whether the documents and evidence related to the ìØoodlands Pharmacy and Jasper Lovoi (who was disclosed as the provider of pentobarbital to the Department in the fall \tr/ere, of 2013) in rettospect, valid threats or not. This argument, however, is not dispositive of the legal question whether there is a substanttal threat of physical harm if the identity of the current pharmacy or pharmacist supplyt"g pentobarbital to the Department disclosed glven the totaltty of the circumstances is in the current environment. Plaintiffs' arguments and testimony essentially only touches the tip of the iceberg in this case. The Department's experts, including the Director of DPS, have provided clear, afftrma1j.ve testimony, free from contradictions, that release of the current supplier, which is a retail compounding pharmacy, open to the public in an urban area of aTexas city, would pose a substantial threat of physical harm. The Department is entitled to summary judgmenta;s of law ^m^tter The Department prays that the Court grln the Department's Motion for SummaryJudgment and deny the Plaintiffs Motion for SummaryJudgment, and deny Plaintiffs' request for attotney's fees as barred by statute. The Department prays for any other relief to which itmay be entitled 25 Resp ectfully Submitted, GRE,G ABBOTT Attorney General of Texas DANIE,L T. HODGE First Assistant Attorney General DAVID C. MAT:TAX Deputy Attorney General for Defense Litigation DAVID A. TALBOT,JR. C hie f, Adminis tr aldv e La.w Divisio n NI -HENDE,RSON State Bar No. 24045580 Deputy Chief, Administrative Law Division I3RE,N D. MATLOCK State Bar No. 13198750 Chief, Law Enforcement Defense Division SHELLEY N. DAHLBERG State Bar No. 2401,2491. Deputy Chief, General Litigation Division Assistant Attorneys General O¡'r'rcB oF THE ArronNpy GENERAL oF TEXAS P.O. Box 12548, Capitol Station Austin, Texas 7 87 1, 1 -2548 Telephone: (512) 47 5-4300 Facsimile: (51,2) 320-01,67 Nichole.Bunket-Henders on@texasattorne)¡general. gov Attorneyfor Defendant Texas Department of Cnminal Jastice 26 CentmrcATE oF sERvrcE I hereby certi$r that a true and coffect copy of the foregoing document has been served on November 1.2,2014 on the following: VIA: E-FiIins and Electronic MaiI PHILIP DURST State Bar No. 06287850 MANUEL QUTNTO-POZOS State Bar No. 24070459 DnATS, DuRsr, OwBN & Luw, P.L.L.C 1,204 San Antonio, Suite 203 Austin, Texas 78701 Telephon e: (51,2) 47 4-6200 Facsimile : (51,2) 47 4-7 89 6 pdurst@ddollaw.com mç@ddollaw.com Coønselfor Pkintifs VIA: E-FiIing and Electronic MaiI MAURIE AMANDA LEVIN State Bar No. 00789452 ArronNny AT LAw 211 South Street, #346 Philadelphia, PA 1,91.47 Telephon e: (51.2) 29 4-1, 5 40 Facsimile : (21, 5) 7 33-9225 maurielevi n@gmal,. com CoanselþrPlaintif Ramiro HernandeqLlanas and Plaintif Pro Se \t/lfunl,uw Assistant r\ttorney General 27