Force of Law

Attorney General Hector Balderas says medpot privacy rules circumvent open records laws

A frustrating game of hide-and-seek involving public records from the state’s medical cannabis program could be one step closer to being over. But New Mexico Attorney General Hector Balderas says the Department of Health’s proposal to get right with the state law doesn't go far enough.

At issue are department privacy policies that keep the names of licensed cannabis producers secret—rules that prompted the New Mexico Foundation for Open Government and this reporter to

in July. 

In a strongly worded letter sent to the state Health Department's Medical Cannabis Program Manager Andrea Sundberg last week, Balderas reversed an opinion his office issued in the summer. He now claims administrative regulations that shield information about the state’s public health program exceed the department’s statutory authority and “circumvent the mandates and intent” of the state’s Inspection of Public Records Act (IPRA). 

“A public agency cannot unilaterally determine that it will withhold records by creating a confidentiality regulation, unsupported by legislative authority, to bypass the IPRA," writes Balderas.

Since producer confidentiality is not specifically provided in the Lynn and Erin Compassionate Use Act, which made cannabis consumption legal and allowed for its production and sale to qualified patients, Balderas contends department rules “would not carry the force of law and cannot be used to withhold documents under the IPRA.” 

He wants license applications from nonprofit groups that want to grow medication for more than 18,000 registered cannabis patients to become public record the moment they are received in Santa Fe.

“All government agencies must be accountable and comply with transparency laws,” Balderas says in a written statement sent to SFR from his office late Monday afternoon. 
After the lawsuit, and after Gov. Susana Martinez told reporters for the Roswell Daily Record and the Albuquerque Journal this summer that she supported a community's right to know the identity of large-scale growers, the Health Department started to make noise about changing its policies. A hearing before an independent examiner is set to take place at 9 am Wednesday at the Harold Runnels Auditorium in Santa Fe. Kenny Vigil, a spokesman for the Health Department, did not return SFR’s text messages or voicemail messages, but he told the Associated Press that regulators are still reviewing Balderas’ opinion, and his letter will be entered into the record for the hearing. 
Balderas’ letter, according to Susan Boe, the executive director of the New Mexico Foundation for Open Government, is a signal that the attorney general intends to use his office to more vigorously defend open government laws in the state. 

The contentious privacy rules have been an issue for patients and open government advocates for years. 

“Secret licenses to produce and manufacture state-sanctioned medications are inconceivable in an open society,” says Kip Purcell, a NMFOG board member and the attorney who filed the group’s legal complaint. 

SFR has had numerous records requests denied by public records custodians since 2009, including site inspection reports and information about license takeover bids by out-of-state management companies, and last year, its request to review 86 new license applications was denied. Other documents released to SFR have been heavily redacted, including growers’ nonprofit organization bylaws, which state law already deems to be a public record. That complaint, according to a spokesman from the AG's office, is still under review. This fall, SFR used a database from the secretary of state to determine some information about nonprofits organizing for the purpose of growing and distributing cannabis. 
The privacy rules have also been a concern for patients who want to review inspection reports to see which dispensaries are meeting standards and to determine if any have been sanctioned for using prohibited pesticides or for other rule violations. 

The privacy rule isn’t the only new proposal being considered by the hearing examiner on Wednesday. Regulators want producers to use product labels to identify any pesticides used in the production of cannabis or cannabis-derived products and also allow couriers to deliver medication to labs and other manufacturers. Currently, they are only allowed to deliver to patients. Administrators also want to remove a requirement that doctors confirm that traditional medical treatments have failed to provide their patients “adequate relief” before helping them register for the cannabis program. They also want to eliminate a controversial heavy metal testing requirement that was adopted last February.

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