The Supreme Court of Georgia’s recent rejection of a challenge to the extraordinary secrecy of the state’s medical cannabis licensing system may propel the issue to another General Assembly debate next year.
The Georgia Access to Medical Cannabis Commission (GMCC) recently issued the last of six available licenses to producers of low-THC cannabis oil despite pending court challenges from unsuccessful applicants. The details of those challenges, however, are largely unknown. A unique law imposing near-total secrecy on the GMCC’s decisions has crept into court processes as well, leaving the records sealed.
The Georgia First Amendment Foundation (GFAF) attempted to lift the veil on that court secrecy in a court filing earlier this year on behalf of journalists and the general public. But in October, the Supreme Court denied the attempt — without explanation and with two justices noting their dissents to the rejection.
The GMCC did not respond to questions about the process and appeals.
Joy Ramsingh, a Pennsylvania attorney specializing in government transparency law, represented GFAF in the challenge. In a recent phone interview, she called the public’s shutout from the process “unprecedented.”
“It’s just a black box,” said Ramsingh. “… I’ve worked with a lot of confidentiality statutes. I’m a public records attorney. It’s rare to see a confidentiality statute that stretches across an entire judicial process, an entire licensing process.”
Kristen Goodman is an attorney representing one of the unsuccessful applicants, Symphony Medical, in legal appeals. Symphony supported the GFAF’s challenge.
“I describe them as really trying to pull back the curtain a little bit on what has been, I believe, government at its worst,” said Goodman. “It’s been a secretive [and], we believe, corrupt and arbitrary process that was flawed from the beginning.”
Goodman was able to speak broadly about those complaints, related to application scoring methods and heavy secrecy, but could not provide the actual documents in an original administrative court hearing, which remain sealed.
Vincent Russo is an attorney representing some of the successful applicants who defend the process and alleges some of the losers are filing frivolous appeals. He says there is merit in protecting the business’s trade secrets and security with confidentiality. He said that in the GFAF challenge, some of the unsuccessful applicants themselves did not want the applications to be publicly disclosed.
Russo says that considering that many of the applicants do business in other states, there is an argument to keep even the structure of their applications confidential so as not to give up a competitive advantage.
“It’s like giving away the secret sauce, to some degree,” he said.
Russo’s clients allege that the unsuccessful applicants are stalling in hopes of the General Assembly changing the law to allow more winners.
State legislation is certainly on the plaintiffs’ minds, following unsuccessful legislation earlier this year that would have subjected the process to the Georgia Open Records Act and handed it over to the Georgia Department of Agriculture, among other proposals. State Rep. Alan Powell (R-Hartwell), who led that effort with expressions of sympathy for the legal appeals and criticism of the secrecy, did not respond to questions. Goodman said her side continues to back the idea of dissolving the GMCC.
“I think that the cleanest solution to this is for there to be some sort of legislative fix,” says Ramsingh.
The 2019 law that authorized the GMCC imposed extraordinary secrecy on much of its process and records, saying it “shall be confidential data.” The GMCC soon drew criticism for a broad interpretation of that concept. While the process also required the posting of applicants from companies seeking to become licensees, the lengthy application documents were almost entirely redacted, with hundreds of pages blacked out. That drew criticism from the GFAF, among others.
When unsuccessful applicants challenged the provisional winners, GMCC took the dispute to the Georgia Office of State Administrative Hearings. It was heard by an administrative law judge, which is an internal government process different from a judicial court but nonetheless binding in its decision-making. That judge dismissed the complaints.
However, the GMCC’s secrecy extended into the administrative court process itself. That means the public was unable to see anything — even order about hearing schedules, according to Ramsignh. The plaintiffs themselves got only limited access to application materials, says Goodman.
Goodman broadly described allegations of “arbitrary and inconsistent” scoring of applications, some applicants allowed to amend their applications later, and lack of a “holistic” review of entire applications, among other issues. But the complaints and all other court documents remain sealed — with no time limit — “so I cannot produce that. I cannot provide that to you,” she said.
The notion of totally secret court records and hearings flies in the face of the American tradition, the GFAF complained. Ramsignh says state law already contains disclosure exemptions limiting the disclosure of trade secrets in a much more limited fashion.
“If you have your five secret spices that you put in your chicken… that is already private,” she said. “That would have been private, and we would not have wanted that.”
And while GFAF and the general public still can’t see the complaints, she said that based on what the unsuccessful applicants are saying, “there are a lot of super serious allegations. To me, that increases the need for transparency.” On the other hand, she said, the GMCC secrecy is unique in the law and is not likely to bleed over into other industries.
Russo noted that the complaining applicants were able, in the administrative court process, to get access to unredacted applications from the winners. Goodman acknowledges that but says they were only allowed to do so in a short time frame, barred from showing them to experts who could interpret technical language and could not print or search any documents, instead viewing them only page-by-page.
Russo says the confidentiality has not been an obstacle to defending the complaints, but said it did make room for the plaintiffs to make various untested claims — all while not releasing their own applications.
“It allowed for a lot of innuendo, I think, to be able to be used by unsuccessful applicants to claim that they have a better application,” said Russo. “I suppose they could have made their own applications public if they wanted to.”
Goodman’s client and several other applicants have filed suit in various state and county judicial courts in an attempt to get an appeal of the administrative court decision heard – which itself is no guarantee the secrecy will be lifted, though some material tidbits have been included in those court filings. A couple of the cases remain pending, including a request for the Supreme Court of Georgia to hear one.
Other cases have been dismissed. In one of those cases, as reported by the Daily Report, Russo and other attorneys seek to collect fees from the plaintiffs, alleging they used “bad-faith” tactics to drag things out. Goodman argues that the GMCC’s recent award of license, despite the pending legal appeals, is yet another unauthorized and unexplained decision.
Right now, it’s all a pretty obscure argument involving questions about legal concepts like venue and standing. The GFAF and Goodman say the heat will rise if and when patients or the public are affected by a medical cannabis distributor.
“To say that an entire industry is going to be shielded by a confidentiality law is unreal to me,” said Ramsingh, predicting that if a controversy arises on such topics as insurance coverage for a child, “People are gonna have questions. Lawmakers are gonna have questions.”
