For the Record

Secrecy still abounds in the New Mexico Medical Cannabis Program

When Ken Groggel, a senior state health department employee, visits any one of New Mexico’s 23 medical cannabis facilities, he has a checklist of areas to inspect.

With public safety on his mind, Groggel counts the number of plants that are growing, evaluates security systems and ensures that business licenses are publicly displayed. Occasionally, Groggel takes samples of bud or cannabis-derived edibles to the state laboratory in Albuquerque to test for contaminants.

In a way, his site visits are similar to restaurant inspections by environment department employees, who monitor compliance with health and sanitation regulations.

Accessing Groggel's inspection reports isn't difficult. Simply file a request with the department's records custodian—who's job title, ironically, is "chief privacy officer"—and within 15 days, you'll get copies of the completed forms.

But the reports, which could be valuable to patients who want to make informed decisions before purchasing their medication, are basically worthless, because the privacy officer blacks out the names of the growers.

This leaves no way to see who's meeting production standards and who's struggling to harvest quality pot. Want to know if a specific producer has ever been sanctioned for making patients sick or see who has never had a problem? Curious what annual financial audits reveal about producers' profit-and-loss statements? Forget about it.

The department's current administrative code requires Groggel and his team to redact identifying information about cannabis producers.

Of course, SFR and patients have known the names and locations of all 23 current producers for years. Spend 10 minutes searching the Internet and the producers' own websites, addresses and phone numbers pop up. Online government databases also provide the growers' names and board officers.

This disconnect between what's really public information and what data the state is trying to protect is just one of the reasons why, on July 9, I partnered with the New Mexico Foundation for Open Government and sued the health department over keeping the records secret.

Some in the industry are worried that SFR wants to publish employee names or that we'll break open proprietary business plans. That's not what we are after. Instead, our job as watchdog journalists is to scrutinize the state's emerging cannabis industry, including who gets to participate in it and how well the program is doing. If the state is permitted to keep the whole thing under wraps, there's not much for the dogs to bark at.

Information access has been a chronic problem since the program's inception in 2007. Six years ago, then-SFR reporter Dave Maass battled the health department for the name of the state's first licensed producer, and rules that created that roadblock still exist today.

For example, earlier this year, SFR requested records showing which producers were authorized to open additional dispensaries and tried to determine how Arizona-based Ultra Health was essentially able to assume management of New Mexico Top Organics earlier this summer. Program secrecy also made it impossible to ascertain if a Canadian firm would be allowed to operate in New Mexico.

After the deadline to submit new grower applications passed in May, SFR asked to see information about the qualifications of 84 groups who are eager to make money selling cannabis to nearly 16,000 patients.

The department declined to release names of the applicants.

Then, in a surprising and unexplained turn, last week, Gov. Susana Martinez verbally ordered the health department to rescind its privacy rules. Even though the Albuquerque Journal headline touted this as a lifting of the "veil of secrecy," it's not clear yet how much information will really emerge from the policy change—or when.

For starters, while the department waits to see if current producers will take advantage of new rules that allow them to triple the number of plants they can grow, from 150 to 450 plants, a spokesman says it's already evaluating the new applicants. Four health department employees are expected to assign numeric scores to each one based on business and security plans, experience in agricultural and their willingness to set up dispensaries in underserved areas of the state. Department Secretary Retta Ward has the final say.

Before cities hire a new police chief, or a school selects a new superintendent, they are required to share the candidates' names with the public. Patients around the state tell SFR they still want to screen potential growers and provide the health department input on groups they believe will serve their interests.

And here's just one reason why: SFR received proposed bylaws from one hopeful producer. While the state requires patients to serve on boards of directors, this nonprofit plans to give its executive director veto power over all board and spending decisions. The director will also set his or her own salary.

Keeping a tight lid on the new program may have been justified at its onset. Yet concerns that conflict between federal and state law could lead to Drug Enforcement Agency raids and arrests have not borne out.

Public access works in other states like Massachusetts, Illinois, Minnesota, Washington and Oregon. When reporters in Albany, New York, for example, were able to screen 43 applicants vying for five licenses, they discovered individuals with troublesome histories, including one man facing federal mortgage fraud charges and another who was required to surrender a marijuana license in Colorado.

Meanwhile, in New Mexico, the next public opportunity to talk about new grower applications appears to be after the licenses are already awarded, and that will be too late.

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