Pa. Department of Health sues to keep medical marijuana program data secret

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HARRISBURG — The Pennsylvania Department of Health is again suing Spotlight PA in an attempt to keep information about how patients obtain a medical marijuana card secret from the public.

This time, the health department does not want to reveal how often individual physicians approve patients for the medical program — information that could help identify outliers who might be bending or breaking the state’s rules.

Spotlight PA sought that information under the state’s open records law, and the newsroom specifically noted that it was seeking information about doctors and not the names of patients.

In January, an independent state agency determined that records should be made public to the extent that they exist, citing a recent Commonwealth Court decision in which judges rejected the health department’s broad interpretation of the medical marijuana law’s confidentiality rules.

The state Office of Open Records gave the health department 30 days to hand over relevant records. But the health department refused and this month appealed to Commonwealth Court — an action that will likely delay access to the records for at least several months, if not permanently.

Withholding that information makes it harder to understand how the medical marijuana law is working, said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association, which Spotlight PA is a member of.

“Data can point to successes and it can also point to failures, and those are things we need to address in policy,” Melewsky told Spotlight PA. “And if we can’t understand how the law is working by inspecting its data, it’s very hard to advocate for change where it’s necessary.”

Doctors are at the heart of the state’s billion-dollar medical cannabis industry. Each year, hundreds of thousands of patients need approval from a physician in order to obtain a medical marijuana card and shop at dispensaries. There were more than 1,800 approved doctors in the program as of November, department records show. A patient’s first certification often costs between $125 and $225, and certifications must be renewed at least annually.

In November, some members of the state’s Medical Marijuana Advisory Board questioned how much scrutiny patients receive from some doctors when they are approved for certifications, echoing findings of a Spotlight PA investigation.

The department’s lawsuit against Spotlight PA is the latest example of the agency seeking to block records from being released — first as part of the Wolf administration and now under Democratic Gov. Josh Shapiro, who took office last month.

The Wolf administration took Spotlight PA to court in September 2021 after the state Office of Open Records ordered the department to release data showing the reasons why patients qualify for the state’s medical marijuana program. But Commonwealth Court rejected several of the department’s arguments, and its opinion stated that the medical marijuana law’s confidentiality protections were for individual patients — not aggregate data.

The department eventually provided records of more than 1 million medical marijuana certifications, which were created from November 2017 through August 2022. A Spotlight PA analysis of that data and the subsequent investigation revealed how anxiety disorders were the top reason patients qualify for the program, despite limited and mixed evidence that cannabis helps treat anxiety.

In the doctor data case, the health department argued the information is not listed as a public record under the medical marijuana law and that “it falls squarely within the definition of confidential information.” The Office of Open Records disagreed.

Paula Knudsen Burke, an attorney with the Reporters Committee for Freedom of the Press, said the precedent from last year’s Commonwealth Court decision involving qualifying conditions should apply to the release of aggregate data for doctors.

”We have seen how public access to data about the state’s medical marijuana program has helped Pennsylvanians and policymakers better understand how this relatively new program is operating,” said Burke, who represented Spotlight PA in last year’s Commonwealth Court case at no cost.

Melewsky of the Pennsylvania NewsMedia Association agreed that the Commonwealth Court precedent should apply to the data about doctors.”Because this information is slightly different, it sounds like they’re going to trot out all of the arguments that the Commonwealth Court has already shot down,” Melewsky said of the health department.

The health department in 2021 sued another reporter in Commonwealth Court who sought information about the number of medical marijuana certifications issued by physicians. That case is pending and was sent to Commonwealth Court before the August 2022 ruling in the qualifying condition case.

And in yet another case, the department also sued Spotlight PA earlier this month after the state’s Office of Open Records ordered it to release records, to the extent they exist, showing the number of certifications issued by a specific practitioner who had faced discipline from the department. That case is also pending.

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