08.15.2016
policy

Your State Is Keeping Its Medical Marijuana Data Secret

What are these agencies hiding behind all that stonewalling?

Say you’re a civic-minded cannabis consumer––or a reporter for a weed media website––and you’re interested in learning more about your state’s medical cannabis program. You might file a Freedom of Information request for demographic data about the people with medical cannabis cards, or the criteria state agencies use to decide who receives dispensary and cultivation licenses. Every state has a version of the federal Freedom of Information Act (or Public Records, or Open Access) designating all government documents to be available to the public, unless exempted. For most government-run programs, in-depth details are somewhat easily available. But should you seek out information about how state governments deal with their medical cannabis programs, don’t expect to get very far.

Illinois became the 23rd state to legalize some form of medical cannabis in 2013, when then-Governor Pat Quinn signed the Compassionate Use of Medical Cannabis Pilot Program Act into law after nearly a decade of debate and incremental progress in the General Assembly. 

As The KIND previously reported, skittishness from conservative lawmakers and law enforcement groups lead to the racially discriminatory requirement in the law that all prospective patients be fingerprinted at their own cost and have that information entered into a state directory. Illinois is the only state with this requirement in its medical marijuana program. Another provision in the law unique to Illinois, Section 145, explicitly bars the state agencies responsible for administering various aspects of the program from releasing any information disclosed on patient, dispensary, or cultivation license applications. The punishment for any state FOIA officer who releases such information is a misdemeanor charge and a $1,000 fine.

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While reporting previous stories for The KIND, I was blocked by Section 145 from accessing standard information that would generally be available to me (and the rest of the public) about a government-run program, like demographic breakdowns on who the Department of Financial and Professional Regulation has awarded dispensary licenses to––pertinent because African-Americans, partially due to racial discrimination in the enforcement of drug laws, are being shut out of the rapidly growing cannabis industry nationwide. That information was denied because Section 145 prohibits the release of any information from the applications that dispensary owners submit to the state. The same restrictions apply to demographic information obtained from applications the Department of Agriculture receives for cultivation licenses. 

Similarly, a reporter for the Chicago Sun-Times was denied documentation of how the Department of Financial and Professional Regulation scores dispensary applications, as was a lawyer representing a cultivation applicant seeking the same information from the Department of Agriculture, according to determination letters issued by the Public Access Bureau, the Illinois Attorney General’s office that settles FOIA disputes.

 “I think that Illinois in particular, has a long standing history of not reporting information. . ."

The Illinois State Police––which is named in Section 145 but has no specific limits on what it can disclose––was the only state agency to grant any of my Medical Cannabis Pilot Program-related FOIA requests, revealing the total dollar amount it has collected from fingerprinting and conducting background checks on prospective medical cannabis patients: $290,000 as of July 15.

Illinois’s stance against public disclosure of information about who is associated with medical cannabis businesses is troubling to Allen St. Pierre, who for the past 24 years has served as executive director of the National Organization for the Reform of Marijuana Laws (NORML). “If you’re a consumer––and that’s how NORML comes at this, from a consumer point of view––what would you want to know about the people who are producing and selling your marijuana?” he asked rhetorically in a phone interview with The KIND. “You might want to know if they’ve had previous convictions. You might want to know if they’ve been previously sued in civil court for fraud or misrepresentation or something like that, prior arrests.” Section 145 prohibits the state from releasing any information that would identify dispensary license holders, though a list of licensed dispensaries is public. 

A few days after our interview, St. Pierre resigned from NORML to become the VP of communications for Freedom Leaf, a NORML-affiliated marketing company.

“Lack of data transparency is an issue for us, in many realms,” Kathleen Kane-Willis, a drug policy expert and director of Roosevelt University’s Illinois Consortium on Drug Policy, wrote The KIND in an email. “I think that Illinois in particular, has a long standing history of not reporting information… that is often valuable to policy makers and researchers as well as the general public.”

Former Illinois Governor Pat Quinn (via)

Lou Lang, the powerful Democratic state representative from Chicago’s northern suburbs responsible for the Compassionate Use of Medical Cannabis Pilot Program Act––who has been advocating for medical cannabis since 2009—said that you have to put the writing of the bill in its historical context.

“This bill was drafted barely in the shadow of Rod Blagojevich being impeached and going to prison for, if it was in the corporate world, would be insider trading,” Lang said in a phone interview with The KIND. “We drafted this very carefully so that nobody would ever be able to accuse those who were doing the scoring of the applications of insider trading."

“We did that so that the general public would not say, in case somebody that everybody knew, let’s say––a lobbyist or some ex-government official––was involved in a license, we wouldn’t want people to say there was favoritism," Lang added. "But I can say, as a matter of fact, that we proved beyond a shadow of a doubt that there was no favoritism in these licenses. That was the purpose for these provisions, to make sure that there was no taint to these licenses." 

 

On the campaign trail, Republican Bruce Rauner, who ousted Quinn as governor on promises to “shake up Springfield,” the state capital, criticized Quinn for Section 145, and called for an open auction of the licenses. When Rauner took office in January 2015, he awarded 52 dispensary and 18 cultivation licenses without any kind of public discussion or debate, let alone auction. 

Governor Rauner’s office has not yet replied to submitted questions.

It’s unclear why exactly Lang chose the path of secrecy at the public level to prevent favoritism in the awarding of licenses––FOIA relates to requests for information from the public, not internal government processes. Lang did not return an email seeking clarification by press time.

Still, Lang said on the phone he would be willing to rework Section 145 in the future to allow more public access: 

“I still think there’s some value, particularly in my state given our history, I do think there’s some value in the secrecy of the application process and the scoring, but in terms of the public viewing of this at a later date, perhaps that could’ve been written differently.” 

The pilot program has opened up publicly in another way recently. Reporters were permitted to tour cultivation centers this month for the first time, which was previously banned. The decision was Jack Campbell's, a longtime sheriff's deputy in the Central Illinois county that contains Springfield and the newly-appointed director of the Medical Cannabis Pilot Program after the previous director, 31-year-old lawyer Joseph Wright, stepped down after just a year.

You might think Illinois, which has consistently terrible ratings from open-government groups (F’s in public disclosure laws from the Center for Public Integrity and two separate Better Government Association reports), is unique in blocking the public from viewing this information. But records requests for identical information—racial, gender, and age demographic data for medical cannabis patients, dispensary owners, and growers—sent to state agencies in all 19 states that have similar programs to Illinois show that the states allowing public access are in the minority. 

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Few states even collect this kind of fairly rudimentary data. Illinois happens to be the only state that collects racial data about patients, and discloses it publicly in semi-regular reports––though the Department of Public Health rejected a FOIA request for up-to-date information. Several states collect and publish gender and age data: Arizona, Colorado, New Jersey, and Oregon. (Montana and New York, just age.) Of all the agencies requested, the only three to produce information not currently available on their websites were the Rhode IslandWashington, D.C., and Massachusetts Departments of Health; Rhode Island and D.C. with gender and age information for patients, and Massachusetts with gender and age information for patients and dispensary employees

Maryland, which is still in the process of building its medical cannabis program, did disclose a significant amount of information about applicants for cultivation licenses to the Washington Post in June, leading the paper to report that multiple companies competing for the licenses had ties to former law-enforcement agency personnel and political figures. Additionally, New York publishes the accepted applications for every cultivation and dispensing organization in the state online.

Disclosures like that, however, are few and far between.

In Alaska, Connecticut, Maine, and Michigan, all patient data, even in anonymized, aggregated forms, is exempt from public disclosure laws and otherwise unpublished. (Hawaii and Delaware exempt all patient information from public disclosure laws but choose to publish some online anyway; Maine is also the only other state to make information gained from dispensary applications confidential.) 

“Not having access to data makes it much harder to determine what is happening with any given program or policy area, no matter the type."

According to Dan Bevarly, interim director of the National Freedom of Information Coalition, this is part of a larger movement in state legislatures toward exempting information that would generally be available to the public. “What we’re seeing in many states is a general increase in [exempting] information that’s been public for years, we’re seeing more movement in legislatures to make more information exempted from existing [freedom of information] laws,” he said in a phone interview.

When it comes to dispensary license holders, no states publish demographic data or provided any in response to records requests. The conflicting status of cultivation cards––some states license them separately, some allow anyone with a medical card to grow, some have only one growing operation––lead to no information coming of those requests, either.

None of this says anything of the states that never responded to my requests by press time (over 20 business days have passed since I submitted all requests): Minnesota, Washington, Nevada, and New Hampshire.

Image via Flickr

“[This] data would be useful to [drug policy researchers]. I would be interested in tracking it,” Kane-Willis of Roosevelt University said. “Not having access to data makes it much harder to determine what is happening with any given program or policy area, no matter the type. As a researcher, I strongly believe in access to data. Researchers can sometimes find patterns or trends that might not be identifiable to an administrator who keeps the data. The point of public policy research is to evaluate and look at how things are or are not working. If we cannot access information, it puts everyone at a disadvantage, including the public.”

It will be important to keep an eye on the rest of the states joining the growing list of medical cannabis states in the near future, St. Pierre said. 

“This year, we’re going to see Florida, Arkansas, and Missouri all vote on medical marijuana. We’ll certainly see other states having to come up with a system that is either more or less transparent.”

(Updated September 7th after the Michigan Department of Licensing and Regulatory Affairs and New York Department of Health responded to our requests. Updated September 15th after the Massachusetts Department of Public Health responded.)

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