Requester’s Voice: Chris McDaniel of BuzzFeed News

The reporter lets us in on some helpful FOIA tricks, tells us how the Missouri DOC paid executioners in cash, and talks about battling increasing secrecy in the death penalty world

Written by Curtis Waltman
Edited by JPat Brown

Chris McDaniel is currently a reporter for BuzzFeed News covering execution drugs. He relies on FOIA to investigate many of his stories, including uncovering how Texas tried to buy drugs from a supplier in India who also manufactured opioids and club drugs, and how Ohio planned on purchasing an illegal execution drug. This week, Chris lets us in on some helpful FOIA tricks, tells us how the Missouri DOC paid executioners in cash, and talks about battling increasing secrecy in the death penalty world.

How did you first start reporting on death penalty drugs?

Back in 2013, I was a political reporter for St. Louis Public Radio when the state said they were going to be making a change, and that this previously public information of where they buy the execution drugs was now going to be a secret. I hadn’t covered anything about the death penalty before this, but the secrecy was what interested me in it - and that was when I first really began reporting on the death penalty. I ended up finding out that why they wanted to keep it secret - they were buying it from a place that wasn’t licensed in the state and which had a lot of questionable regulatory history.

A major theme in your work is how secretive execution drugs are. Has this hampered your work?

It has hampered it. These secrecy laws can make it nearly impossible to provide accountability for death penalty drugs. I don’t think they can make it impossible, although they would love to try. I mean, I’ve run into some crazy exemptions - my favorite one is that states want to cite a HIPAA exemption for turning over records to me about a lethal injection. That’s crazy because it is not a medical procedure. In fact, their own attorneys general argued it wasn’t in court. But anything where an execution or lethal injection involved, it’s well … we’re going to cite HIPAA. And we fight them on that and I think they realize it’s silly after. I think it’s one of those things where they want to cite everything that they could possibly use.

Are there methods you use to fight these roadblocks and exemptions?

I think you have to understand people’s motivations for complying or not complying with public records laws. Earlier this month, the state of Texas sued the FDA for holding onto some illegal execution drugs they bought from some guy in India. In their lawsuit, they’ve fought hard to to keep information about where they bought it a secret. So when I go to Texas and ask for information, they’ll tell how much they paid, but redact all the identifying information about who it was from. They have threatened to sue the FDA if they tell me who they bought it from. So I went to a different agency, the DEA, who they haven’t threatened to sue, and they gave me the information.

It helps to think of everyone’s motivations. So, for Texas, their motivation is, keep this information a secret, even if we have to threaten to sue somebody or even if we do do sue somebody. The FDA doesn’t don’t want to get sued by Texas for giving this information to us and they don’t want to get sued by us. The DEA hasn’t been involved with this lawsuit, and so they just don’t care at all, and so they gave me this information. As it turned out, Texas tried to buy it from this company in India run by these five dudes, and after they planned on buying execution drugs from them dudes, they all got arrested by the Indian government and their facility shut down for selling illegal drugs - by which I mean opioids and party drugs - to Europeans.

So It’s about not putting all your eggs in one basket, but planting seeds in a lot of different places, knowing that 99% of them are gonna die and be failures.

What have some of your hardest FOIA requests been?

So, shortly before I started at BuzzFeed, the state of Georgia had to call off an execution because the drug they were going to use was faulty. There were particles floating in the drug, which is not great. After they called it off, there was a big court battle over what went wrong and Georgia really didn’t want to admit or acknowledge the possibility that the problem was the person they chose to make the drug. They attempted to allay those fears saying they were going to do this experiment to find out if the problem was how it was mixed, or how they stored the drug, and then file the results with the court so it would be public. They never filed the results with the courts.

So I filed a public records request, and they were like, yeah, we never filed those results with the court. And I was like okay, but I still want them, and they said no we can’t give it to you, it’s a legal proceeding. So we told them okay, we are going to publish something that says you promised to do this experiment and that you’re withholding it, probably because the results didn’t go the way you wanted.I can’t remember if we had to publish that story or if they gave the results to us before we published, but I do remember they weren’t very happy. So we ended up getting the results, and we were totally right! The results completely contradicted their narrative. Almost all of these public records requests involve a lot of arguing.

Do you often appeal decisions like that, or have any tricks for exemptions?

So it depends completely on how good I think the story is, and it also depends on the state. Some states will have a very good procedure for appealing. But this Georgia one was tough. We got ahold of some documents showing that the executioners were really struggling to set IV’s in inmates, so this wasn’t an isolated incident, but the Georgia DOC was really reluctant to admit this was an ongoing issue.

They tried to deny me some documents about it, by arguing there was an ongoing investigation. But then, their spokesperson also says there was no investigation because nothing was going wrong. That was one where I think we had our attorney send them a letter, we didn’t end up having to file a lawsuit.

You have to have a good hunch about which ones are worth fighting over and which ones are probably not your hill to die on. It’s tough.

Where do you think FOIA shines as a journalistic tool and where does it fall short?

I can’t imagine doing the work I do without open records laws. With the work that I do, maybe four or five people in state government have that information. They keep it to a very small group of people purposefully because they don’t want a lot of people to know about it. And when you’re dealing with that amount of people, it’s tough to find a lot of sources, because the people involved are the people doing the things they don’t want you to know about. I think that you really have to rely on open records.

Where it falls short is how long it takes. If there’s a botched execution today, I might try to find out what went wrong, and the story may come out a year from now. That’s tough, because a lot of the public might have forgotten about it by then, and and while I spent a year waiting on records, meanwhile the state is still carrying on more executions. But I think you can work around it. What we’ve tried to do is constantly be filing open records requests, and then building up a database of documents so when news happens in a certain state or when something goes wrong, we can go back through all the stuff already we have and provide more context or break some more information. But the time is definitely the biggest shortcoming.

Do you have any specific exemptions you find a lot?

It’s tough because most of what I do is at the state level and most of the exemptions that I get are their state’s own exemption for their executioners, or their execution secrecy law. What is new is that some states are creating an exemption for this sort of information even without changing the law, which is kind of crazy. This is why we’re suing in Missouri, because the legislature hasn’t changed the law, the Department of Corrections just decided they could keep the information secret.

What are some of the changes you would like to see made to FOIA, to make it easier for requesters?

I think some kind of rule where they have to tell you specifically how many records they’re withholding and whether the records exist. So if I ask for something I’m not going to get, at least they would have to tell me if it exists or not. That would be useful because I can still write stories based off that.

Do you have a favorite request you’ve ever filed?

Sometimes, secrecy is the story. So, I once did this story about how the Missouri Department of Corrections was paying its executioners in cash. You had this extremely high ranking Corrections official who was delivering envelopes stuffed with hundred dollar bills to the executioners. We got receipts, memos, and we also got a database. We were able to find out that it was more than $250,000 in cash. That’s sort of the most fun one. We talked to experts and they were like, this violates the law, they can’t do this. They definitely weren’t filing paperwork with the IRS about it.

Any parting advice for a first time FOIA filer?

I think being as specific as possible is helpful. That doesn’t mean that you have to unnecessarily limit yourself. I’ll list out 15 different things in one open records request, but they are specific things that I want, so I am still getting a lot of information. And it’s really that the person searching for this at least has an idea of what I’m looking for.

I think it’s also really helpful to read a lot of other people’s open records requests, and send the request to a lot of different agencies. People create a lot of documents, even when it is something they want to keep secret. Even when we are talking about a guy giving out $250,000 in cash there is still a ton of documentation on it, including the internal policy which they weren’t paying attention to.


Image via WIkimedia Commons