But the Virginia Department of Corrections recently denied a Freedom of Information Act request filed by the Mercury for the names of its suppliers over the last decade, noting that the new law doesn’t apply to contracts that were already signed by the state.
“Specifically, the 2020 amendment provides that the identity of an outsourcing facility ‘that enters into a contract’ is no longer confidential or exempt from the Freedom of Information Act,” wrote Ryan McCord, the department’s legal compliance manager, in a response letter last week. “The General Assembly expressly chose the word ‘enters,’ rather than ‘entered into,’ or ‘has entered into,’ indicating that the law does not apply to contracts executed prior to the statutory amendment.”
Sen. John Bell, D-Loudoun, who introduced the bill during the 2020 session, said Monday that the department’s interpretation aligned with his own intentions for the bill. “The reason why is because we were worried about some legal contracting issues we’d have with agreements that have been made prior to this,” he added. “We didn’t want to cause legal problems for the commonwealth.”
Bell said that future purchases would be subject to the new discoverability law and suggested that existing contracts between VDOC and drug suppliers should be revisited in light of the legislative changes. Currently, though, it’s not clear how many purchasing agreements are still in effect.
“VDOC has not entered into any contracts with lethal injection drug manufacturers, suppliers, or compounders since the passage of the statutory amendments,” McCord wrote. At least one compounding pharmacy ended its agreement with the state on May 5 — less than a month after the new law was signed — according to a letter included as part of the department’s response to the Mercury’s FOIA request. The letter was sent to VDOC Director Harold Clarke by the company’s lawyer, McCord wrote, but the department redacted both the name of the pharmacy and the attorney.
VDOC spokesman Greg Carter did not immediately clarify whether the department has any other outstanding contracts with drug suppliers.
The Virginia Mercury is a new, nonpartisan, nonprofit news organization covering Virginia government and policy.