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Pot Applicants Kept Secret

Health Department shields public records

May 22, 2015, 2:30 pm
Medical pot patients who want to know who has applied for a license to grow their medication in New Mexico may not get a chance to learn about applicants before licenses are awarded by New Mexico Secretary of Health Retta Ward later this year.

Medical Cannabis Program managers tell SFR they will not make public any part of the 86 applications submitted to the department after Ward reopened the application process in February. Ward has indicated she’ll award up to a dozen nonprofit licenses.

Patient groups and open government supporters say that’s not fair. They want the opportunity to screen the applicants and provide the health department public comments before any new licenses are issued.

“For one thing, we want to know who is committed to testing their marijuana and who has the strongest experience growing cannabis,” says patient Sarah Dolk.

Dolk says communities have a legal right to screen finalists for university presidents, police chiefs and school superintendents, and she wants the right to screen new pot growers.

Getting access to the records will be an uphill battle. Requests for information about the current 23 licensed producers have been consistently denied over the years, so this week’s decision to deny a request filed under the state Inspection of Public Records Act wasn’t a surprise.

Originally, lawmakers and regulators worried that a conflict with federal law would trigger raids and arrests and shielded participants' names.

“When the rule was created, the political landscape was quite different. New Mexico was the first state to regulate medical cannabis at the state level, and when regulations were created, there was still great fear that federal agents would crack down on this pioneering program,” says Jessica Gelay, a Drug Policy Alliance program coordinator. “Now, other states have implemented similar regulatory models, and there are Department of Justice guidelines that seemingly protect participants in well-run state programs." 

Still, Andrea Sundberg, a cannabis program coordinator, says state regulations prohibit access to any identifying information about current producers or new applicants.

“A pending application for licensure as a nonprofit producer shall be confidential and not subject to disclosure. Accordingly, the requested materials are deemed confidential and not disclosed,” writes Sundberg in an email to SFR.

But that public records exemption isn’t completely spelled out in state statute. Instead, the health department regulators cite an “as otherwise provided by law” provision in the Inspection of Public Records Act and claim their rules become “other laws” once they’re published in the state register.

That doesn’t comply with legislators' intent, says New Mexico Foundation for Open Government President Greg Williams. He contends the health department is misapplying the “other laws" provision.

“I’m unaware of any other drug manufacturers being able to sell and distribute their products without being publicly identified,” says Williams. “There is no reason for the names of these producers not to be public.”

Regulators' concerns about conflicts with federal laws do not override the public’s right to know who is involved in a public health program, according to Williams.

“Specifically public agencies should not be able to create barriers to public access to records by passing regulations that insulate themselves from a public records request,” Williams tells SFR. “If public agencies are allowed to pass their own confidentiality regulations, then the purpose and intent of IPRA is completely undercut.”

Others say current producers, who have published websites and purchase newspaper ad space, have forfeited any privacy protections.

Patient registration in the program is automatically protected from public disclosure, because individual medical records are not public documents. But the state’s health department is a public agency running a public health program. The licenses that are issued, by rule, cannot be sold, exchanged or bartered, and they must be returned to the department on demand.

Larry Love, a medical pot patient and industry analyst, says that makes them public licenses and subject to public review.

The health department isn’t the only agency using regulatory rules to bypass public records law.

The New Mexico Correction Department recently denied SFR’s written request to review prison inmate grievances at the state prison in Santa Fe and at the Southern New Mexico Correctional Facility. They claim a department policy prohibits the release of the grievances because they're now considered "legal mail." 

The corrections department did provide SFR monthly statistic logs showing grievance by category for all their state facilities.

 

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