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AG: State can’t conceal names of medical pot producers

Copyright © 2016 Albuquerque Journal

In a strongly worded letter, New Mexico Attorney General Hector Balderas said Monday that a Department of Health proposal to disclose the identities of licensed nonprofit producers of medical cannabis doesn’t go far enough to abide by the state’s open records law.

Balderas contends that state law doesn’t authorize the agency to withhold the names of more than 4,000 New Mexicans licensed to grow their own supply of medical pot.

The proposed rule change would remove a confidentiality provision that conceals the names of people who grow and distribute medical marijuana in New Mexico.

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But the proposed changes include a provision that would conceal the identities of personal production license holders, who on Dec. 2 numbered 4,045.

The proposed rules also would maintain confidentiality for those applying to become licensed nonprofit producers until the closure of the application period.

In his letter to state health officials, Balderas said the state’s medical marijuana law doesn’t authorize the Department of Health to conceal the identities of people with personal production licenses or pending nonprofit producer applications.

“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 (Inspection of Public Records Act),” Balderas wrote.

Balderas noted that the state’s medical marijuana law authorizes the Department of Health to keep confidential the names and addresses of people with a registry identification card, which allows them to legally purchase medical pot.

But it does not authorize the agency to keep confidential the identities of personal producers and applications for licensed nonprofit producers, Balderas wrote.

“A public agency cannot unilaterally determine that it will withhold records by creating a confidentiality regulation, unsupported by legislative authority, to bypass the” open records law, he wrote.

The Department of Health said it will consider Balderas’s letter along with other comments offered during a public comment period.

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“The Medical Cannabis Program received the letter from the Attorney General today and is reviewing it,” spokesman Kenny Vigil said in a written statement.

The letter and other written comments will be submitted to a hearing officer, who will make a recommendation to Health Secretary Rhetta Ward, the statement said.

Nicole Morales, president of the New Mexico Medical Cannabis Patients Alliance, said that releasing the names of licensed patient producers would create a security risk for patients who grow their own supply of pot.

“Many patients live in areas that aren’t safe” from thieves and intruders, Morales said. “I can’t imagine anyone wanting to put sick patients in the way of danger.”

The Department of Health has licensed 23 nonprofit producers and has selected 12 more for licensure. The agency provides a list of licensed dispensaries to patients licensed to buy medical pot but does not provide the list to the public.

In a lawsuit filed in July, freelance journalist Peter St. Cyr and the New Mexico Foundation for Open Government argued that concealing the identify of dispensaries violates the state open records law.

Also that month, Gov. Susana Martinez issued a directive ordering the Department of Health to publicly identify dispensaries and their employees after adopting the required regulatory changes.

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