09.12.2016
policy

We Open a Stack of Pot Files the Government Wishes You'd Never See

This is how a bureaucracy just says no.

When writing the law that created Illinois’s Medical Cannabis Pilot Program in 2013, its sponsor, powerful state representative Lou Lang, included broad language exempting wide swaths of information from being released under the state’s Freedom of Information Act (FOIA), which stipulates that all government documents not specifically exempted are public information. Lang also included penalties for any state employee who releases such information, including a four-figure fine and a misdemeanor charge.

Rep. Lang told KINDLAND in a phone interview last month his reason for doing so was to keep information on applications for dispensary and cultivation licenses secret from the state regulators responsible for scoring the applications, ostensibly to avoid corruption and favoritism to politically-connected figures. But seeing that FOIA deals with public disclosure of information, not the government's internal license-scoring procedures—and the fact that other states, such as Maryland, have been able to reconcile internal blindness and public disclosure—Lang's answer leaves a lot unexplained.

(The representative never responded to a follow-up email seeking clarification.)

So if journalists, and the general public, in Illinois are kept from finding out the names, or even anonymous demographic factors, of the people with state licenses to grow and sell medical cannabis—businesses with the potential to be incredibly lucrative in the nation’s fifth-largest state—what can we find out?

For one thing, we can see what data the government has previously blocked from public disclosure. KINDLAND requested to view rejected FOIA applications submitted to three Illinois state agencies specifically barred from disclosing information by Lang’s law. What came back shows that even the most mundane government information, basic particulars that most states would normally disclose without a second thought, is being held secret from the Illinois public.

The Department of Financial and Professional Regulation, which is responsible for scoring and distributing dispensary applications as well as enforcing dispensary regulations, coughed up 40 FOIA requests rejected under Section 145 of the Compassionate Use of Medical Cannabis Pilot Program Act, titled “Confidentiality.” The requests come from reporters across the state (and a couple of national outlets), law firms representing dispensaries, cannabis trade groups, and private individuals.

Many of the requests are for either information directly derived from dispensary applications or for the applications themselves, both of which Section 145 named explicitly as off-limits for release under FOIA.

Many others, however, are for documents that are not expressly exempted, like internal government emails, the process by which the department scores applications, or complaints registered against dispensaries. Requests for these details are rejected under the department’s interpretation of broad language in the section prohibiting the release of “records kept by the Department… under their rules for purposes of administering this Act.”

Similarly, the Department of Public Health, which receives applications for and distributes medical cannabis cards—and sets regulations for how doctors interact with the program—provided 11 rejected requests for standard, mostly anonymous information, including breakdowns of the counties of origin for those awarded medical cards and, again, complaints against dispensaries.

The Department of Agriculture, which oversees cultivation and scores and distributes cultivator licenses, provided a spreadsheet detailing 100 rejected requests, the usual suspects ranging from the scoring process for cultivation applications to copies of checks received by the department.

Both the Illinois State Police, which is named in Section 145 but has no specific restrictions on disclosures spelled out, and Governor Bruce Rauner’s office, which is not named but is responsible for the overall administration of the program, responded that they had not rejected any requests due to Section 145.

There is an appeals process for FOIA rejectees—an office of the Illinois Attorney General called the Public Access Bureau—but a review of determination letters issued by the office regarding Section 145 shows that the language of the law is too strict to allow much of anything to be released on appeal. Of the 13 cases, only four were decided in favor of the requester—though in three of the four, the Bureau challenged the agencies’ interpretation of the “records kept… for the purposes under their rules for purposes of administering this Act” language and ordered the agencies to turn over emails related to the program.

In an email to KINDLAND last month, Kathleen Kane-Willis, a drug policy researcher and director of the Illinois Consortium on Drug Policy at Roosevelt University, wrote that Illinois is among the worst states for disclosing information valuable to researchers and the public. Just weeks ago, a government body in Illinois provided another perfect example: The Office of the Chicago Inspector General, which took over the investigation into the police shooting of Laquan McDonald for the embattled Independent Police Review Authority, has yet to publicly release its final report, though it has delivered it to the Chicago Police Department, which moved to fire seven of the cops involved based on the report’s recommendations.

Ordinarily, the report would be available under FOIA—if not for a provision in the state law allowing government agencies to establish Inspector General offices exempting all of its investigative materials, including the final reports, from release under FOIA. 

The Inspector General’s Office and the CPD used this provision in their denial letters to me. As the Chicago Reporter’s Jonah Newman points out, this same provision could stand in the way of full police reform transparency in Chicago; part of Mayor Rahm Emanuel’s three-pronged proposal includes a Deputy Inspector General for Public Safety, who would have access to the same provision in the state law.

“If the result is going to be that you’re never going to be able to get those documents—even after the investigation is complete—that would be a pretty significant problem,” FOIA attorney Matt Topic told Newman. Perhaps conveniently, the Emanuel administration claimed its hands were tied.

Read all the documents here.

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