The state Office of Open Records on Thursday ordered the state Department of Health to provide data showing the number of medical marijuana patients by county, rejecting the agency’s argument that the information is confidential under state law.
The determination was made in response to an appeal filed by CNHI’s newspapers after the Department of Health refused to release the data.
In siding with the newspapers, Kyle Applegate, chief counsel for the Office of Open Records, rejected the agency’s argument that aggregate data should be kept from the public based on protections in the medical marijuana law intended to safeguard patient privacy.
“Finding the requested aggregated data to be confidential would lead to an absurd result. Under such a broad reading of confidentiality, information such as the total number of Pennsylvanians using the medical marijuana program would be confidential and disclosure of that figure could result in criminal sanctions. The OOR cannot conclude that this was the General Assembly’s intent,” he wrote.
The Office of Open Records order directs the agency to provide the records within 30 days though the agency does have the opportunity to appeal to Commonwealth Court. Efforts to seek comment from the Department of Health were unsuccessful Thursday.
CNHI’s newspaper sought the records after the Department of Health announced in May that it had determined that 10 rural counties were underserved by medical marijuana dispensaries. Armstrong, Bedford, Bradford, Carbon, Pike, Potter, Tioga, Venango, and Wayne counties, each had more than 2,000 residents who are medical marijuana patients, but none of those counties had a medical marijuana dispensary, according to the Department of Health.
There are more than 350,000 medical marijuana patients in Pennsylvania and the state has 127 dispensaries — 24 of them in Philadelphia and 11 in Pittsburgh, according to the Department of Health.
In a document filed in response to the newspaper’s request, the Department of Health asserts that the Medical Marijuana Law, passed in 2016, bars the agency from releasing information provided to the department about patients.
The Medical Marijuana Law explicitly states that applications submitted by medical marijuana organizations, the names and addresses of doctors certifying patients to get medical marijuana and information about disciplinary actions taken against medical marijuana organizations or doctors should be made public.
In a response to the newspapers’ appeal, the Department of Health said that the information about patient numbers by county “falls plainly within the universe of ‘all information obtained by the department relating to patients, caregivers and other applicants,’ which is “confidential and not subject to public disclosure.”
Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, had criticized the agency’s position prior to the Office of Open Records’ determination and she welcomed the decision Thursday.
The confidential provision in the medical marijuana law was intended to “protect the identity of individual patients,” not to allow the agency to withhold information about how it’s administering the program, she said.
"It's a good result and more importantly it's the right result," Melewsky said Thursday evening. "The interpretation the Department of Health took was too expansive," she said. "It was clear to me when I read the statute that the General assembly intended to protect individual identifiable patient information, not aggregate data," Melewsky said.
The Office of Open Records decision recognized the need to make the records public in the interest of transparency, she said.