Pennsylvania AWOL in Regulating Public Access to Information on Medicinal Marijuana Companies
The Pennsylvania Department of Health appears to have abdicated its responsibility to determine what is and is not public information about medical marijuana companies seeking lucrative state licenses, the Reading Eagle has learned.
in pursuit of exclusive rights to grow and dispense marijuana for a medical program with projected sales of more than $100 million.Despite the program’s controversy among conservative legislators and worry over releasing proprietary information, transparency concerns have united applicants and lawmakers.In the wake of liberties applicants took in redacting permit applications, state senators who spearheaded the legalization of marijuana for medicinal use in Pennsylvania have said the state’s Right-to-Know Law should better address public information concerns.The Right-to-Know Law requires that state agencies determine what information is public, not the medical marijuana industry, which is overseen by the Health Department.J.J. Abbott, press secretary for Gov. Tom Wolf, defended the department’s actions, saying the agency’s priority is Pennsylvania’s patients.”Department of Health has operated in a timely and effective fashion within the confines of the law and regulations while limiting outside influence from lobbyists and other interests with the primary goal of getting relief to patients,” Abbott said in an email to the Eagle.But in a move Right-to-Know experts called unusual, the Health Department permitted applicants to determine what information to disclose in a self-redacted version released to the public. The permitting process required applicants to submit two applications: one for the evaluation committee and a second, self-redacted version for the public.The Right-to-Know Law is intended to keep the public informed about and involved in governmental actions that impact them, in this case the implementation of the state’s new medicinal marijuana program, which was signed into law last year.In Pennsylvania, records are presumed public.Applicant redactions were supposed to adhere to state law.Although the agency’s spokeswoman has said the Health Department would not defend these redactions, formal Right-to-Know requests for unredacted permit applications – except those permitted by law – were either flatly denied or granted by relying in large part on redactions made by the industry.Abbott did not explain why formal requests for public information under the state’s Right-to-Know statute also included applicant redactions.
Attorneys and Right-to-Know advocates had assumed the release was a proactive move for a fledgling and highly competitive program that is likely to draw public scrutiny, if not lawsuits.
Now they’re not so sure.”They can’t just redact, put it up on a website and play a guessing game,” said Terry Mutchler, a transparency law expert and Pennsylvania’s first Open Records director.”The Department of Health is not a pass-through agency here and it shouldn’t be.”Transparency advocates are not the only ones to cry foul. Even applicants expressed consternation.Chris Visco is the owner of TerraVida Holistic Centers, which was awarded a license for three dispensaries in the Philadelphia area. Visco said she found troubling the inconsistency in which applicants applied, and the Health Department allowed, self-redactions.”We felt that we followed the rules of what could be redacted and what couldn’t,” Visco said. “Had we had known we could have redacted far more, then we would have.”TerraVida’s application reveals a conservative approach to identifying proprietary information and trade secrets, which are exempt from disclosure.For example – unlike other applicants – TerraVida did not redact any of its 10-page community impact statement. Redactions made by the health department say “DOH redaction.” These markings indicate the vast majority of redactions in the TerraVida application were done by the agency.Visco’s concern, with the second-highest committee score among the 27 licensees in phase one, is that others will poach her application.”I guess the reality is it was vague and was open to interpretation,” Visco said. “We followed the intent more than others did.”
The applicant redactions included a mystifying mix of information such as application questions, business addresses and – in at least one instance – the Health Department’s logo. Right-to-Know experts anticipated a formal request would yield only those redactions supported by state law.
That doesn’t appear to have been the case.Days after the March 20 permit filing deadline, Philadelphia lawyer Jordan Rand requested under Pennsylvania’s Right-to-Know Law copies of all the applications the Health Department received for its medical marijuana program. The Reading Eagle submitted a similar request April 6.Rand and the Eagle expected only trade secrets, personal and proprietary information would be withheld.Both agreed to additional extensions – more than the law permits – because of the number and length of applications, which ran hundreds of pages.More than 450 applications were submitted in the first phase: 177 for the 12 companies awarded growers licenses and 280 dispensary applications for 27 licenses to sell medical marijuana.The Health Department requested two additional 30-day extensions from Rand. At the end, the agency asked for yet another extension, which Rand denied.On Friday, the health department denied the Eagle’s request for unredacted applications, directing the newspaper to the applicant-redacted versions online.Pennsylvania’s Right-to-Know Law permits one 30-day extension. Additional extensions can be taken, but only if the requestor agrees.By the third extension, Rand said he believed the agency was stringing him along.”I would have expected total transparency,” said Rand, who specializes in transportation law but is interested in the regulations around Pennsylvania’s newly minted medicinal marijuana program.Rand does not represent any permit applicants.”I have no doubt that there are items redacted that under the Right-to-Know law are not redactable,” Rand said.Lisa M. Keefer, open records officer for the Health Department, denied Rand’s request and instead directed him back to the applicant-redacted versions available online.Rand did not appeal the decision.
Rand’s request is not the only denial.
But other denials came much more promptly, without extended delays and additional extension requests.On June 26, The Philadelphia Inquirer requested from the health department grower applications without redactions, except those allowed by state law.The Inquirer submitted its request three months after the Philadelphia lawyer and four days before the Health Department would ask for another extension.The agency’s Right-to-Know office responded within five business days on July 3 with a denial from Keefer. Her denial letter had no legal explanation supporting the applicant redactions.The newspaper has since appealed the decision to the Pennsylvania Office of Open Records. In all, the office is reviewing three appeals related to medical marijuana permit applications and the secret panel that scored the submissions.In Pennsylvania, agencies have to justify withholding documents.”The burden is on the agency to show why they redacted it,” said Open Records Deputy Director Nathan Byerly, who previously described the applicant redacted-version as “novel.”Health Department spokeswoman April Hutcheson declined to say why the agency seeks extensions for certain requests and not others, citing the Inquirer’s appeal.Presumably, the additional extensions the agency sought from the Eagle and Rand were to review the unredacted applications submitted to the evaluation committee.”That’s the reasonable assumption,” said Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association. “I don’t know that that happened.”An agency can’t just outsource Right-to-Know Law compliance to applicants and contractors,” she said. “It seems to me that the Department of Health is relying solely on applicant-based redactions and not their review under the law.”It is the unredacted version that an agency’s legal department reviews before publicly disseminating it. It’s unclear if the Health Department conducted that review; Hutcheson declined to say.As of Wednesday, the department had received 37 Right-to-Know requests for information regarding permit applications.When dealing with potential trade secrets or proprietary information, a state agency is required to contact the third party – in this case, the permit applicants – to inform them of the Right-to-Know request. It is unknown whether the health department informed applicants of these requests; Hutcheson declined to say.Although not required by law, agencies do often inform requesters of third-party notification.Neither the Eagle nor Rand received such a notification.”Within the process, we are following the law and the application of the law,” Hutcheson said. “Anyone who is denied, obviously, has the opportunity to appeal.”The state Office of Open Records is expected to rule on the Inquirer’s appeal by Sept. 19. Mutchler, Pennsylvania’s first Open Records director, concedes what she calls “the art and science of Right-to-Know Law” saying sometimes the wording of a request is as important as the documents being sought.But she could find no meaningful reason for the disparities in how the agency so far has handled public information requests over the applications. No requester, Mutchler emphasized, should wait four months for documents.The courts can fine an agency acting in bad faith.”We do look at bad faith as part of our process,” Byerly said.
A disparity exists among states over what applicant information is made public.
Applicant redactions, however, are rare.Ed Keating, vice president of government of affairs for the Washington-based Cannabiz Media, which aggregates permit information for the medical marijuana industry, has a national database of 18,000 licenses. Keating said he is unaware of any other state that allows companies to self-redact.In some states, like Illinois, information began to trickle out as companies sought municipal permits, Keating said. Others, like Alaska, publish detailed information about licensees, including email addresses and phone numbers.Among the states with marijuana programs the Eagle reviewed, Illinois and Arizona do not release applications to the public. New York and New Jersey do, but neither state allows applicants to self-redact.For an emerging industry dealing with what has long been considered an illicit drug, coming out of the dark can serve to destigmatize it. No one, Keating said, asks “what are they hiding” when details are disclosed.
Applicants vying for a permit license are seeking a slice of the $128 million in sales projected for the first year of implementation in Pennsylvania. Transparency is the trade-off.
“A lot of people view it as the cost of doing business,” said Keating, an open records advocate whose business depends on selling license information.An upside of openness, Keating has said, is the role marijuana licenses can and have played in detecting fraudulent activities.So, why all the self-redactions?Lawmakers have suggested the applicant-redacted versions were an effort by the Health Department to avoid lawsuits that have sidelined medical marijuana programs elsewhere.”Because it’s a competitive process, you have to be careful that applicants aren’t forced to divulge proprietary information,” said Fred Sembach, chief of staff for state Sen. Mike Folmer, a Lebanon County Republican who represents parts of Dauphin and York counties, and the lead sponsor of the legislation that created Pennsylvania’s medicinal marijuana program.But, Sembach added, the senator has a growing list of items that will need to be addressed when the law is revisited.”As the law is tweaked and refined, clearly the Right-to-Know issue is on the list,” Sembach said.Correcting the missteps before phase two is something applicants said they could support.As president of Berks County-based Bunker Botanicals LLC, Geoff Whaling unsuccessfully applied in the first round for a grower permit.Whaling said he found the redactions head-scratchers. The software program he used for the process blacked out the Health Department’s logo.Still, Whaling said he supports agency-only redactions that contribute to a level playing field.”My big hope is that this doesn’t delay the Department of Health from implementing the program,” Whaling said. “At the end of the day, we cannot forget about Pennsylvania’s patients. That’s what we all did this for.”