January 4, 2016

AG wants more sunshine for medical pot program

Medical marijuana prescription

New Mexico’s Attorney General is advocating for the state to disclose names of medical marijuana producers to the public.

New Mexico Attorney General Hector Balderas. Courtesy photo.

Courtesy photo

New Mexico Attorney General Hector Balderas. Courtesy photo.

In a Dec. 31 letter written to state Medical Cannabis Program Patient Services Manager Andrea Sundberg, Attorney General Hector Balderas notes the Health Department’s proposal to disclose producers while keeping applications for personal production licenses confidential and pending non-profit producer applications private until the end of the application period.

The Health Department recently agreed to allow the public to see medical marijuana producer licenses with those caveats.

“We believe that this regulation not only exceeds the Department of Health’s statutory authority to promulgate rules, but also circumvents the mandates and intent of the IPRA,” Balderas writes.

The Health Department’s proposals came after local journalist Peter St. Cyr and the New Mexico Foundation for Open Government (FOG) filed a lawsuit to get the state to disclose the names of non-profit medical marijuana producers.

The state has long refused to disclose producer names, but St. Cyr and FOG argued in their lawsuit that doing so violates the state Inspection of Public Records Act (IPRA). Specifically, they pointed to a section of IPRA that says documents can be withheld “as otherwise provided by law.” They cite how the Lynn and Erin Compassionate Use Act, which established medical marijuana in New Mexico, doesn’t include any provision barring public release of non-profit producer names.

“The law says the names of the people using medical marijuana be kept secret,” Boe said. “But there’s no identical provision that applies to producers.”

Balderas argues in his letter that the Health Department’s current regulations exceed its own authority.

Health Department spokesman Kenny Vigil said his agency is reviewing Balderas’ letter.

“The letter will be part of the public comment for the proposed rule changes and it will be submitted to the hearing officer with other written comments the Department receives,” Vigil said in an email to NM Political Report.

Boe said she welcomes Balderas’ argument. She noted that Balderas’ office argued a completely different position just seven months ago.

In a June 23, 2015 letter to an IPRA complaint filed by Linda Filippi, Assistant Attorney General Susan Sullivan argues that the Health Department didn’t violate public records law when it cited the same regulation as reason to deny a request seeking non-profit medical marijuana application materials.

“In our review of IPRA compliance, we find that the DOH relied on [the Lynn and Erin Compassionate Use Act] to deny the request,” Sullivan writes. “We therefore find that they act of denial does not violate the IPRA.”

But Attorney General spokesman James Hallinan said that the June 23 letter “does not address the efficacy of the regulation” the way that Balderas’ more recent letter does. Namely, Hallinan emphasized that Balderas’ recent letter does not address the “as otherwise provided by law” provision of IPRA.

“The (first) letter only discusses whether a rule can be used as a proper exception to the ‘as otherwise provided by law’ exception within IPRA,” Hallinan said in an email to NM Political Report. “The Office of the Attorney General maintains that a rule (regulation) making certain records private may be proper if the rule is authorized by a statute and is necessary to carry out the statute’s purpose.”

St. Cyr and FOG filed their lawsuit arguing the opposite of Sullivan roughly two weeks after the June 23 letter. By mid-July, Gov. Susana Martinez said her administration would release the names of producers. In September, St. Cyr published the names of producer applicants in a Santa Fe Reporter story by using business records from the New Mexico Secretary of State’s Office.

Boe said she’s pleased with the new argument from the Attorney General’s office.

“I think there’s been a change in their position or they looked at it more carefully,” she said. “And we welcome it.”

The Health Department will hold a public hearing this Wednesday about their proposed changes in Santa Fe at the Harold Runnels Building at 9:00 a.m.

Updated with statement from Health Department and Attorney General’s Office.

Correction: A previous version of this story inaccurately reported that Balderas criticized the Department of Health’s proposed rewriting of the regulations. We regret the error.

Read Balderas’ letter below:

AG Medical Cannabis Letter by New Mexico Political Report