The proposal to withhold those names until the application process has closed amounts to DOH making up its own law
BY DENNIS DOMRZALSKI
A proposed rule by the New Mexico Department of Health to keep secret the names of nonprofits seeking to become medical marijuana producers in the state until the application process has ended violates the state’s Inspection of Public Records Act, Attorney General Hector Balderas said in a letter released Monday.
The proposal to withhold those names until the application process has closed amounts to DOH making up its own law because there is no provision in the state’s medical marijuana law that bars the release the of the names of licensed producers or applicants, Balderas said in a Dec. 31 letter to Andrea Sundberg, patient services manager for DOH’s Medical Cannabis Program.
“It is our conclusion that the Department of Health has exceeded its authority in promulgating [the proposed rule],” Balderas’ letter said. “The importance of maintaining an open and accessible government is essential to the function of democracy. A public agency cannot unilaterally determine that it will withhold records by creating a confidentiality regulation, unsupported by Legislative authority, to bypass the IPRA; such a possibility would undermine the very purpose of IPRA. Because the confidentiality of the producer applications is not provided for by statute, the regulation as proposed does not carry the force of law and cannot be used to withhold documents under the IPRA.”
The 2007 Lynn and Erin Compassionate Use Act does require the DOH to keep confidential the names of medical marijuana users. “However, the Act contains no such provision regarding the confidentiality of producer applications,” Balderas wrote. “The Department is not permitted to create regulations and take actions beyond those authorized by the statute.”
The DOH is expected to hold a hearing on Wednesday regarding its proposed rule. The department has previously refused to release the names of medical marijuana producer applicants. But freelance journalist Peter St. Cyr and the New Mexico Foundation for Open Government sued the department over its refusal to release the names that St. Cyr had asked for in an IPRA request. DOH agreed that the names of producer applicants would be subject the IPRA the instant the deadline to submit applications closed. But Balderas said that isn’t good enough.
“The express inclusion [in the law] of a provision for confidentiality of applications for a registry identification card, with no correlating provision related to producer applications, demonstrates a legislative intent to permit public inspection of producer applications,” Balderas wrote. “Had the Legislature intended to permit public inspection of producer applications, it would have included it.”
There are currently 23 nonprofit medical marijuana producers licensed in the state, and about a dozen more applications are awaiting approval. Medical marijuana sales in the state were fore cast to reach $25 million to $30 million in 2015.
Balderas’ letter also said that case law holds that “an administrative agency has no power to create a rule or regulation that is not in harmony with its statutory authority.”
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