Open records decision was a win; more needed

Pennsylvania must disclose the members of a panel that scored applications for medical marijuana permits.

A Pennsylvania Office of Open Records decision recently forcing the state to disclose the identities of the secret panel that scored applications for medical marijuana permits is a victory, on one level, for government transparency.

At the same time, however, it highlighted potentially harmful vagaries and contradictions in the execution of an incredibly important statute that has the potential to improve the health of thousands of the state’s residents — many of them children.

Pennsylvania must disclose the members of a secret panel that scored applications for medical marijuana permits, the Office of Open Records concluded. To review: Earlier this summer, the state Health Department announced the winners of 12 grower/processor and 27 dispensary permits based on the scores of panel members from various disciplines.

The names of those who vetted the applicants were secret, with the Health Department arguing that keeping their names from the public safeguarded them from outside pressure as well as threats to their personal safety.

That secrecy, however, also prevented them from being scrutinized for possible conflicts of interest.

The state’s argument was nonsensical on its face: Taxpayers are entitled to know the names and duties of those charged with carrying out important regulatory work in their name.

So far, 141 losing applicants have filed administrative appeals challenging the denial of permits.

In May, PennLive filed a Right-to-Know request seeking the names, job titles and departments of the individuals on the panel.

The DOH’s initial denial then was appealed to the Office of Open Records.

In denying the request, the Health Department pointed to statutory language stipulating that a permit “applicant may not obtain the names or any other information relating to persons reviewing applications.”

The Open Records office sided with the news organization, with Chief Counsel Charles Rees Brown concluding that the department’s interpretation of the law, which extends that language beyond permit applicants to include news reporters and the general public, was faulty.

“It may be argued that such an interpretation would produce a result that is absurd and impossible to execute,” he wrote.

Elsewhere in the law, Brown observed, the makeup of the panel was not deemed confidential at all. One way to square that contradiction would be to know more about the panel and the way it operates. Now the result: That’s the good news — taxpayers deserve to be fully let into the regulatory process of a lucrative new industry that will have a huge impact on public health across the state.

The bad news is that the vagaries of the way the department interprets the statutory language will likely prompt even more litigation.

That’s due, in no small part, to the fact that the agency leaves it up to applicants to decide what information to redact and what information to make public.

And unfortunately, the only way to pry loose that information is to go to court. The Health Department is also more than likely to appeal the OOR’s ruling.

In July, a Health Department spokeswoman said 72 grower/processor and 69 dispensary hopefuls appealed their permit denial within 10 days of the agency’s notice. One additional grow facility applicant failed to meet that deadline.

As they work their way through the system, those appeals will tie up money that the state could better spend elsewhere as it works to get this industry off the ground or dedicate to other needed public health programs at a time of budgetary austerity.

PennLive is also seeking access to the un-redacted applications.

When they return to work this month, state lawmakers should go back to fix the language to avoid that litigation.

And Gov. Tom Wolf, who campaigned on, and won election, on a platform of government transparency, should be in the vanguard of that effort.

It’s the right thing to do. Anything else — pardon the pun — is just blowing smoke.