New temporary medical marijuana regulations published Saturday and enacted Thursday would restrict public access to information about who scored permit applications for a potentially multibillion-dollar new industry.
Last August, the Office of Open Records ruled that the Department of Health must disclose the names of panelists who reviewed applications for 12 grower/processor and 27 dispensary permits.
The department appealed that decision to Commonwealth Court, where the matter is still pending nine months later. PennLive’s initial public records request was made in May 2017.
Pennsylvania’s medical marijuana law included language barring applicants from obtaining the names of people reviewing applications but it doesn’t prohibit the release of that information to journalists and the general public. Most other states with marijuana programs have disclosed such information although, in most cases, after the permits were awarded.
On Thursday, Commonwealth Court ordered both PennLive and the department to file briefs addressing what effect, if any, the new regulations could have. It was unclear if they would impact the pending court case.
“The Department of Health does not have authority to enact regulations that nullify the Right-to-Know Law,” Joshua Bonn, the attorney representing PennLive, said. “Only the General Assembly has authority to declare what is and what is not a public record. This case would establish a dangerous precedent that would allow agencies to make any information non-public simply by enacting a regulation.”
Good governance advocates have pointed to the possibility of conflicts of interest on a secret panel, particularly since the companies that submitted applications included such wealthy and well-connected backers as John Hanger, former environmental and policy secretary under governors Ed Rendell and Tom Wolf, and Eugene Green-Monroe, a former Baltimore Raven.
The department, however, argued that keeping panelist names from the public safeguarded them from outside pressure and threats to public safety. Spokeswoman April Hutcheson reiterated the first argument about lobbying influence in a written statement Thursday.
At one point, the department also argued that a PennLive reporter seeking the information may one day find himself in the nascent medical marijuana industry.
“While true that [Wallace] McKelvey is not a current applicant, he could be an applicant in the future,” wrote Carol Mowery, the department’s senior counsel, in one filing.
In the past, the Department of Health has issued public statements when it issued new and amended temporary regulations. This time, the public records proposal first appeared in the Pennsylvania Bulletin on Saturday alongside better-publicized changes. Members of the public had five days to submit comments before it was enacted.
Erik Arneson, director of the Office of Open Records, said he couldn’t remember a specific instance in which a public records ruling was followed by a regulation change at a state agency. Members of the Legislature, however, routinely propose changes to the state Right-to-Know Law.
“It’s certainly the prerogative of an agency to adopt regulations,” he said. “If we get a case under the new regulations, we’ll decide it with that language in mind.”
Arneson declined to comment on these specific regulatory changes at the Department of Health, citing the possibility that the matter could eventually come before his office in the form of a public records appeal.
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, said the court should be looking at the law that was in place when the initial request was made.
“An agency can’t change the rules after you file an appeal,” she said. “That would encourage changes to defeat pending litigation on a regular basis.”
In effect, she said, allowing such changes to be retroactive would “change the rules of the game” for anyone seeking public records.
Furthermore, Melewsky said, the temporary regulations do not have the full force of law because they haven’t yet gone through the full regulatory process.
“They may serve as guidance to the court,” she said, “but they have to have the full force of law to be applicable.”
In addition to the change concerning the application review panel, the new regulations also bar applicants’ diversity plans from being made public and stipulate that applicants are responsible for defending their own redactions.
Last year, the Department of Health solicited redactions from the applicants and passed them along to the public. That led to vast inconsistencies from one application to the next. One company, for example, redacted its own name.
A spokesman for Gov. Tom Wolf did not respond to a request for comment Thursday.