The state Health Department’s selection process for medical marijuana license applicants is layered in secrecy.
The department won’t identify the people who are deciding who will get the coveted licenses, and it also won’t say who appointed those people to a selection committee.
Questions regarding how many members there are on the application review panel and what organizations they’re associated with went unanswered Wednesday. In fact, the department is refusing to grant news media interviews with any staff members of the state Medical Marijuana Dispensary Program until licensees are chosen in mid-April.
An attorney who specializes in government transparency issues questions the legality of the secrecy, and one of the key figures in last year’s medical marijuana debate at the Legislature questions its wisdom.
Fifty-nine companies are competing for eight licenses to grow and sell marijuana in Hawaii. It’s a highly competitive process with millions of dollars on the line.
The applicant pool is awash with the rich and famous, including actor Woody Harrelson, celebrity manager Shep Gordon and technology entrepreneur Henk Rogers.
Prominent local political figures hoping to invest include state Sen. Kalani English from Maui; former Honolulu Mayor Peter Carlisle; and attorney Lex Smith, former campaign chairman to Honolulu Mayor Kirk Caldwell.
Health Department spokeswoman Janice Okubo said the agency consulted with its legal counsel and decided not to grant news media interviews or release any information about the medical marijuana dispensary selection process once it was underway.
She said the department is concerned that releasing the names of review panel members — or those who appointed them — could make them targets of lobbying. The state law requiring lobbyists to register and report their spending doesn’t apply to people who might seek to influence the selection process.
Ige’s spokeswoman Jodi Leong echoed that concern, saying that the department’s decision not to share the review panel members is “normal” because “they would be subject to pressure from the public.”
“The dispensary license applications need to be evaluated in a way that preserves the integrity of the process and prevents the selection committee members from being subject to inappropriate outside pressures,” Leong said in an email. “We are working hard to ensure that the process is not only fair and objective but that it is also perceived to be fair and objective.”
“There’s a significant subjective component to this process and if it’s done behind closed doors without sharing participants’ names, most people are going to expect a lucrative and somewhat controversial industry has been handed to insiders.” — State Sen. Josh Green
Leong said that the names are private under the state public records law because of an exemption that protects against “the frustration of a legitimate government function.”
But Brian Black, executive director of the Civil Beat Law Center for the Public Interest, said that claim doesn’t hold water in light of previous decisions by the state Office of Information Practices.
“That argument has been rejected several times by the OIP,” said Black, referring to three opinions — 89-09, 03-15 and 90-16 — that each concluded that the names of government committee members should be made public.
OIP attorney Jennifer Brooks said that determining whether revealing information frustrates a “legitimate government function” depends on the facts of each case.
Brooks said the OIP could review the facts if a complaint is filed and offer a formal opinion. However, it can take years for the agency to issue decisions because of its backlog.
Becky Dansky, a legislative analyst at the national Marijuana Policy Project, said transparency regarding who is choosing medical marijuana licensees varies by state and it’s not unusual to withhold the names of the selection committee members until after applicants are chosen.
But a lack of transparency in the selection process for medical cannabis dispensary owners has been a major concern in several states including New York and Massachusetts, fueling fears that the high-stakes processes might be rigged in favor of the influential.
Sen. Will Espero, who helped write the medical marijuana dispensary law, said he understands the department’s perspective but believes the names of the review panel members should be released after the licenses are awarded.
The Ige administration is not sure whether it will do that. While the current selection process will be over in April, state law gives the Health Department the ability to offer additional licenses to grow and sell medical marijuana after Oct. 17, 2017.
The department’s interim rules state the review panel will include “members designated by the department who have relevant expertise.” The department has so far published the names of the companies applying for licenses and the selection criteria.
In the months since the medical marijuana dispensary law was passed last summer, the Health Department has largely kept the process under wraps. Taking advantage of a legislative exemption, the agency didn’t hold any public hearings or accept public comments before writing interim rules for the program.
State Sen. Josh Green, a physician from the Big Island and former Health Committee chairman, has been critical of the state’s merit-based selection process for dispensary owners and says he thinks the decision to keep the process private will “come back to bite the governor’s office.”
“There’s a significant subjective component to this process and if it’s done behind closed doors without sharing participants’ names, most people are going to expect a lucrative and somewhat controversial industry has been handed to insiders,” Green said. “I honestly can’t for the life of me figure why the governor or the Department of Health would think that this is a good approach.”